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THE  LAW  GOVERNING 
PRIVATE  CORPORATIONS 

IN  OHIO 


Including  Commercial  Corporations,  Steam,  Street  and 
Traction  Railroads,  Fire,  Life,  Accident  and  Industrial 
Insurance,  Trust  Companies,  Private  Banking  Companies, 
Savings,  Loan  and  Building  Associations,  and  every  form 
of  Private  Corporation  doing  business  in  Ohio, 

With  Forms  of  Procedure  for  the  Formation,  Organization, 
Operation,  Consolidation  and  Liquidation  of  Corporations. 


By 

EDWIN   T.  MARSHALL 


Ok   rut  Toledo   BakI 


I903 

The  W.  H.  Anderson  Co. 
Publishers. 


Copyright,  1903 

BY 

The  W.  H.  Anderson  Co. 


i* 


\rs 


3  INTRODUCTION. 


rr^HE  following  pages  are  the  result  of  an  effort  to 
present,  in  a  concise  and  practical  manner,  all  the  law 
of  Ohio  relating  to  private  corporations,  and  it  is  the 
hope  of  the  writer  that  the  book  will  be  of  use  to  the 
profession   and   others    interested. 

Notwithstanding  the  care  given  to  this  work  and 
the  desire  to  make  it  useful,  it  can  not  be  assumed  that 
it  is  free  from  faults  and  errors.  It  is  a  difficult  matter 
to  classify  the  cases  bearing  upon  such  conglomerate  and 
illogical  corporation  laws  as  ours,  especially  when  the 
work  is  destroyed  by  one  or  two  sessions  of  the  legislature. 

The  book  is  respectfully  submitted  to  a  profession 
that  is  inclined  to  be  lenient  and  charitable  toward  any- 
thing  that  saves   time. 


E.    J.    MARSHALL. 


Toledo,  Ohio, 

January   ist>  1903. 


THE  LAW  GOVERNING 


PRIVATE      CORPORATIONS 


IN    OHIO. 


PART  I. 

CONSTITUTIONAL  PROVISIONS   AFFECTING   CORPORATIONS. 

Art.  VIII.  §4.  Credit  of  state.     The  state  shall  not  become  joint  owner  or  stockholder. 

§  5.  No  assumption  of  debts  by  the  state. 

§  6.  Counties,  cities,  towns,  or  townships  not  authorized   to  become  stockholders. 
Art.  N1II.  §  I.  Corporate  powers. 

§  2.  Corporations,  how  formed. 

§  3.  Dues  from  corporations,  how  secured. 

§  4.  Taxation  of  corporations. 

§  5.  Eight  of  way. 

§  7.  Associations  with  banking  powers. 


Art.  VIII..  §  4.  CREDIT  OF  STATE.  THE  STATE  SHALL  NOT  BECOME 
JOINT  OWNER  OR  STOCKHOLDER.  —  The  credit  of  the  state  shall  not,  in  any 
manner,  be  given  or  loaned  to,  or  in  aid  of,  any  individual  association  or  corporation 
whatever;  nor  shall  the  state  ever  hereafter  become  a  joint  owner,  or  stockholder,  in 
any  company  or  association  in  this  state,  or  elsewhere,  formed  for  any  purpose 
whatever. 


See  generally  Cincinnati,  etc..  R.  R.  Co.  v. 
Commissioners*  1  Oh.  St.  77  (1852)  ;  Stuben- 
ville,  etc.,  R.  R.  Co.  v.  Trustees,  1  Oh.  St.  105 
(1852);  Loomis  v.  Spencer,  1  Oh.  St.  153 
(1853)  ;  Cass  v.  Dillon,  2  Oh.  St.  607  (1853)  ; 
Thompson  v.  Kelly,  2  Oh.  St.  647  (1853); 
State  ex  rel.  v.  Commissioners,  6  Oh.  St.  280 
(1856)  ;  State  ex  rel.  v.  Van  Home,  7  Oh.  St. 
327    (1857)  ;   State  ex  rel.  v.  Trustees,  8  Oh. 


St.  394  (1858)  ;  Weaver  v.  Cherry,  8  Oh.  St. 
564  (185S);  State  ex  rel.  v.  Commissioners, 
11  Oh.  St.  183  (1860)  ;  State  ex  rel.  v.  Com- 
missioners, 12  Oh.  St.  596  (1861)  ;  Trustees  v. 
Springfield,  etc.,  R.  R.  Co.,  12  Oh.  St.  624 
(1861);  Commissioners  v.  Nichols.  14  Oh.  St. 
260  (1863)  :  Fosdick  v.  Perrysburg,  14  Oh.  St. 
472  (1863):  Walker  v.  Cincinnati,  21  Oh. 
St.   14    (1871). 


§  5.  NO  ASSUMPTION  OF  DEBTS  BY  THE  STATE.—  The  state  shall  never 
assume  the  debts  of  any  county,  city,  town,  or  township,  or  of  any  corporation  what- 
ever, unless  such  debt  shall  have  been  created  to  repel  invasion,  suppress  insurrection, 
or  defend  the  state  in  war. 

See  Walker  v.  Cincinnati,  21  Oh.  St.  14,  52  (1871). 

LAW   GOV.    PRIV.    COR. —  I.  [1] 


Private  Corporations  in  Ohio. 


Corporations;  Powers,  formation,  etc.. 


§  6.  COUNTIES,  CITIES,  TOWNS,  OB  TOWNSHIPS  NOT  AUTHORIZED  TO 
BECOME  STOCKHOLDERS.  —  The  general  assembly  shall  never  authorize  any 
county,  city,  town,  or  township,  by  vote  of  its  citizens,  or  otherwise,  to  become  a 
stockholder  in  any  joint  stock  company,  corporation,  or  association  whatever;  or  to 
raise  money  for.  or  loan  its  credit  to,  or  in  aid  of,  any  such  company,  corporation,  or 
association. 

See  "vmvallv  Taylor  v.  Commissioners,  23  I  Oh.  St.  647  (1853)  ;  Wyscaver  v.  Atkinson,  37 
Oh  St  22  (1872)-  Walker  v.  Cincinnati,  21  Oh.  St.  SO  (1881);  iEtna  Life  Ins.  Co.  v. 
Oh"  St'  14,  54,  55  (1871);  Cass  v.  Dillon,  Pleasant  Twp.,  53  Fed.  214  (1893)  ;  Pleasant 
2  Oh.  St.  608  (1853)  :  Fosdick  v.  Perrysburg,  Twp.  v.  Mtna,  Life  Ins.  Co.,  138  U.  S.  67 
14  Oh.  St.  472   (1863)  ;  Thompson  v.  Kelly,  2  '  (1891). 

Art.  XIII.  §  1.  CORPORATE  POWERS.  —  The  general  assembly  shall  pass  no 
special  act  conferring  corporate  powers. 


Scope  of  section. 

No  distinction  can  be  made  between  private 
and  municipal  corporations,  and  the  inhibition 
extends  as  well  to  the  conferring  of  addi- 
tional powers  on  an  existing  corporation  as  to 
the  creation  of  a  new  one.  —  State  ex  rel.  v. 
Mitchell,  31  Oh.  St.  592,  607    (1877). 

These  sections  are  not  retrospective. 

The  sections  of  the  thirteenth  article  of  the 
Constitution  of  1851  are  prospective,  and  not 
retrospective,  in  their  intent  and  applications. 
—  Citizens'  Bank  v.  Wright,  6  Oh.  St.  318 
(1856)  ;  State  ex  rel.  v.  Roosa,  11  Oh.  St.  16 
(1860)  ;  State  ex  rel.  v.  Trustees,  8  Oh.  St. 
394    (1858). 


Reorganization    cannot    be    effected    by 
special  act. 

See  Atkinson  v.  Marietta,  etc.,  R.  R.  Co.,  15 

Oh.  St.  21'  (1864). 

May  authorize   abandonment   of  power. 
Permission    to    surrender    powers    does    not 

come   within   the   purview    of   this   section.  — 

Pennsylvania,   etc.,   Co.   v.   Commissioners,   27 

Oh.  St.  14   (1875). 

Ordinance   authorizing  an  extension   of 
a  street-car  line  does  not  confer  cor- 
porate  authority. 
Sims  v.   Street  R.   R.   Co.,   37   Oh.   St.   556 

(1882). 
See  generally  Vought  v.  Columbus,  etc.,  R. 

R.  Co.,  58  Oh.  St.  123   (1898)  ;  State  ex  rel.  v. 

Davis,  23  Oh.  St.  434  (1872)  ;  State  ex  rel.  v. 

Cincinnati,  23  Oh.  St.  445   (1872). 


8  2.    CORPORATIONS  —  HOW  FORMED.  —  Corporations  may  be  formed  under 
general  laws;    but  all  such  laws  may,  from  time  to  time,  be  altered  or  repealed. 


Effect  of  article    1,   §  2. 

This  section  must  be  construed  in  connec- 
tion with  section  2,  article  1,  which  provides 
that  "  no  special  privileges  or  immunities 
shall  ever  be  granted  that  may  not  be  altered 
or  repealed."  —  Shields  v.  State,  26  Oh.  St. 
86,  94   (1875). 

Exemption  from   control  not  presumed. 

The  rights  of  the  public  are  never  presumed 
to  be  surrendered.  Where  a  corporation,  in- 
corporated before  the  adoption  of  the  consti- 
tution of  1851,  claims  to  lie  exempt  from  legis- 
lative control,  this  fact  can  never  be 
presumed,  but  must  appear  affirmatively  by 
the  terms  of  the  charter  itself. — •  Zanesville 
v.  Zanesville  Gas  Light  Co.,  1  0.  C.  C.  123 
i  L885)  ;  -.  c,  1  C.  I).  73. 

What  are  general  laws. 

See  State  ex  rel.  v.  Sherman,  22  Oh.  St.  411 
(1872). 


Consolidated   companies  subject  to  this 
section. 

Consolidated  companies  organized  in  pursu- 
ance of  the  general  laws  are  subject  to  this 
section.  —  Shields  v.  State,  26  Oh.  St.  86 
(1875). 

Power  to  regulate  rates  of  fare. 

Under  this  section  the  general  assembly  has 
power  to  alter  and  regulate  rates  of  fare 
chargeable  by  common  carrier  companies.  — 
Shields  v.  State,  26  Oh.  St.  86  (1875). 

See  generally,  as  to  power  to  alter  or  repeal, 
Milan,  etc.,  Road  Co.  v.  Husted,  3  Oh.  St.  578, 
583  (1854)  ;  Bank  of  Toledo  v.  Bond,  1  Oh.  St. 

Lake  Shore,  etc.,  Ry.  Co.  v.  Cin- 

Ry.  Co.,  30  Oh.  St.  604   (1876)  ; 

v.'  Columbus  Gas  Co.,  34  Oh.  St. 

Zanesville  v.  Gas  Light  Co.,  47 
Oh.  St.  1  (1889) ;  Harper  v.  Ampt,  32  Oh.  St. 
291   (1877). 


622  (1853)  ; 
cinnati,  etc.. 
State  ex  rel. 
572    (1878) 


§  3.  DUES  FROM  CORPORATIONS.  HOW  SECURED.  —  Dues  from  corporations 
shall  be  secured,  by  such  individual  liability  of  the  stockholders,  and  other  means, 
as  may  be  prescribed  by  law;  but  in  all  cases,  each  stockholder  shall  be  liable,  over 
and  above  the  stock  by  him  or  her  owned,  and  any  amount  unpaid  thereon,  to  a 
further  sum,  at  least  equal  in  amount  to  such  stock. 


Constitutional  Prov ism \ s. 


Corporations;  Banking  Powers. 


Liability  must  be   imposed   in   all  cases. 

The  legislature  lias  no  power  to  create  cor 
porations  without  securing  (lie  individual  Lia- 
bility of  stockholders,  at  least  to  the  minimum 
amount  required  by  (he  constitution;  and  ii 
the  act  of  incorporation  does  not  secure  this, 
either   by  express  provision  or   by   requiring 


from  the  corporation  or  stockholders  such 
acts  of  organization  or  otherwise,  ■■<-  will  sub- 
ject them  to"  the  constitutional  provision,  Hie 
act  will  lie  unconstitutional  and  void. — 
State  ex  id.  v.  Sherman,  22  Oh.  St.  411 
( 1872). 
Sec  generally  §  3258  et  seq. 


§  4.  CORPORATE  PROPERTY  SUBJECT  TO  TAXATION.  —  The  property  of 
corporations,  now  existing  or  hereafter  created,  shall  forever  be  subject  to  taxation, 
the  same  as  the  property  of  individuals. 


See  Exchange  Bank  v.  Ilines,  3  Oh.  St.  1,  8 
(1853)  :  Baker  v.  Cincinnati,  11  Oh.  St.  534, 
540  (1860). 

Power  to   surrender  right  to  tax. 

See  Milan,  etc.,  Road  Co.  v.  Husted,  3  Oh. 

St.    578    (1854);    Debolt    v.    Ohio,    etc.,    Trust 
Co.,  1  Oh.  St.  5G3    (1853);   Mechanics'  Bank 


v.    Debolt,    1    Oh.    St.   591    (1853);    Knoup   v. 
Piqua  Bank,   1  Oh.  St.  003    (1853):    Bank   of 
Toledo    v.    Bond,    1     Oh.    St.    622     Ms;,:;, 
Matheny   v.   Golden,   5   Oh.    St.    301    (1856) 
State  ex  rel.  v.  Moore,  5  Oh.  St.  444   (1856) 
Ross    County   Bank    v.    Lewis,    5    Oh.    St.     117 
(1856);    Piqua  Bank   v.   Knoup,   10  How.    (U. 
S.)   369  (1854). 


§  5.  RIGHT  OF  WAY.  —  No  right  of  way  shall  be  appropriated  to  the  use  of  any 
corporation,  until  full  compensation  therefor  be  first  made  in  money,  or  first  secured 
by  a  deposit  of  money,  to  the  owner,  irrespective  of  any  benefit  from  any  improvement 
proposed  by  such  corporation;  which  compensation  shall  be  ascertained  by  a  jury  of 
twelve  men,  in  a  court  of  record,  as  shall  be  prescribed  by  law. 

See  §  3281  and  §  6414  et  seq. 


§  7.  ASSOCIATIONS  WITH  BANKING  POWERS.  —  No  act  of  the  general 
assembly,  authorizing  associations  with  banking  powers,  shall  take  effect  until  it 
shall  be  submitted  to  the  people,  at  the  general  election  next  succeeding  the  passage 
thereof,  and  be  approved  by  a  majority  of  all  the  electors,  voting  at  such  election. 


See  generally  Forrest  Citv,  etc.,  Ass'n  v. 
Gallagher,  25  Oh.  St.  208  (1874);  Dearborn 
v.  Northwestern  Savings  Bank,  42  Oh.  St.  617 


(1884)  ;   Bates  v.  People's,  etc.,  Ass'n,  42  Oh. 
St.  655  (1884). 


PART  II. 


POWERS  OF  BANK  OFFICERS;  FOREIGN  CORPORATIONS;  COMMISSIONER  OF  RAIL- 
ROADS AND  TELEGRAPHS;  SUPERINTENDENT  OF  INSURANCE;  CEMETERY 
ASSOCIATIONS:  GAS  COMPANIES:  RAILWAYS  IN  MUNICIPAL  CORPORATIONS; 
STREET  RAILROADS;  TAXATION;  MECHANIC'S  LIENS  ON  RAILROADS;  LLEN 
OF  COMMON  CARRIERS. 

Powers  of  Bank  Officees. 
§  111.  Bankers,  etc.,  not  to  act  as  notaries. 

§  148a.        Fees  to  be  charged  by  secretary  of  state  for  official  services. 

Foreign  Corporations. 
§  148c.        Foreign  corporations. 
§  148d.        Certificate  necessary  for  foreign  stock  corporation,  etc. 

Annual  Reports  and  Taxes. 
An  Act.        To  require  annual  reports  and  annual  fees.      (Willis  Bill.) 

Commissioner  of  Railroads  and  Telegraphs. 

?  245.  Commissioner  of  railroads,  how  appointed,  term,  who  eligible. 

§  246.  His  bond,  and  oath  of  office. 

§247.  Duty  to  examine   tracks,  bridges,  etc.,  supposed   to  be  dangerous;    shall  prescribe 

rate  of  speed  over  same,  or  wholly  stop  passage  of  trains,  penalties. 

§  247a.        Gates,  bells,  devices,  or  flagmen  at  crossings. 

§  247b.        Regulations  as  to  such  gates,  bells,  devices,  or  flagmen. 

§  247c.        Gates    or    flagmen    at    dangerous    crossings    in    Hamilton  —  duty    of    prosecuting 
attorney. 

§  247d.        How  railroads  can  cross  each  other  or  a  stream  without  stopping;  discontinuance. 

§  247e.        Petition  for  safety  devices  and  procedure  thereon. 

§  247f.        Compulsory  interlocking. 

§  247g.        Crossing  without  stopping. 

§  247h.        Penalty  for  non-compliance  with  order. 

§  248.  Shall   examine   into  alleged  violations   of  law  by   railroad,   its   officers,  agents,  or 

employees. 

§  248a.        Duty  of  commissioner  of  railroads  as  to  differences  between  citizen  and  common 
carriers. 

§  249.  Officer  in  state  house,  may  appoint  a  clerk ;  powers  and  duties  of  the  clerk. 

5  250.  Commissioner  may  pass  free  over  all  railroads. 

§  250-1.       Additional  statements,  etc.,  required  of  railroad  and  telegraph  companies. 

§  250-2.       Expense  to  be  borne  by  railroads. 

§  250-3.       Penalty. 

§  251.  Annual  reports  of  railroad  companies,  when  to  be  made,  what  to  contain. 

§  252.  Commissioner  shall  furnish  blanks. 

§  253.  Penalty  for  failure  to  report. 

§  254.  Annual  report  by  telegraph  company,  when  to  be  made,  and  what  to  contain. 

§  255.  Defective  or  erroneous  reports  must  be  amended. 

§  256.  Railroad    companies   shall   furnish   copies    of  leases   and  contracts   with   other   com- 

panies. 

§  257.  Fatal  accidents  shall  he  notified  to  commissioner  by  telegraph,  and  he  may  examine 

into  the  cause  of  same. 

§  258.  Commissioner  mav  suhprcr.a  witnesses. 

[4] 


M  l  3<  IELLANEOUS    PROVISIONS. 


Part  II,   SS   259  2481. 


§259.  Penalty  for  officer,  agent,  or  employee  of  railroad  to  refuse  to  answei  questions. 

§  -2(i().  Statemenl    required   to   be  made  by   railroad  companies. 

§  201.  Penalty   for  failure  to  comply. 

§262.  Prosecutions  for  lines,  how  made. 

§263.  Prosecution  by  civil  action;  by  whom  brought. 

§264.  Annual  report  of  commissioner,  whal   to  contain. 

§  2G5.  Moneys  collected  shall  be  paid  into  state  treasury,  fees  of  prosecuting  atton 

Superintendent  <>i    Insurance. 

§  266.  Superintendent  of  insurance,  appointmenl   and  term;    who  eligible. 

§2(17.  Bond  to  be  given,  and,  with  oath  of  office  indorsed  thereon,  to  be  died  with  the 

secretary  of  state. 
§268.  Duty  of  superintendent   to  enforce  insurance  laws. 

§269.  He  may  appoint  a  deputy  superintendent,  deputy  to  take  oath  and  give  bond,  and 

may   discharge   duties   of    superintendent;    other    clerks    may    be    employed,   and 
experts. 

§270.  Insurance  department;  expenditures,  salaries;  office  and   fees  of  superintendent. 

§271.  Instruments  under  superintendent's  seal   to  be  evidence,  and  entitled  to  record. 

§  272.  Examinations  of  companies  doing  business  in  the  state. 

§273.  Power  of  examiners;  may  publish  result. 

§  274.  Proceedings  against  unsound  companies. 

§  275.  Procedure  in  case  of  default  to  comply  with  requisition. 

§  276.        .  In  relation  to  unsound  mutual  insurance  companies. 

§  277.  Revocation  of  authority  to  such  companies. 

§  278.  Record  of  proceedings  and  report  thereof. 

§279.  Annual  valuations,  rate  of  interest,  etc.;  exception. 

§  280.  Forms  of  statements  to  be  furnished. 

§  281.  Securities  shall  be  deposited  in  the  state   treasury. 

§  282.  Fees  shall  be  paid  by  companies. 

§  283.  License,  etc.,  of  persons  making  application  for  insurance. 

§284.  Annual  publication  of  certificate  required. 

§285.  Foreign  insurance  companies  may  appoint  agents,  etc. 

§286.  Discontinuance  of  business  by  life  insurance  company. 

§  286a.         Discontinuance  and  withdrawal  of  securities  by  company  other  than  life. 

§  287.  Applicable  to  companies  under  laws  of  the  United  States. 

§  288.  Penalty  for  violation  of  statutory  provisions  relating  to  insurance  companies. 

§  2S9.  Insurance  business  unlawful  except  under  provisions  of  this  chapter. 

An  Act.       To    provide    procedure    for    collecting    claims    payable   from   funds  on   deposit    with 
commissioner. 

Cemetery  Associations. 

§  1465-1.  Tax  for  erection  of  buildings  upon  grounds  of  cemetery  association. 

§  1465-2.  Application  of  tax. 

§  1465-3.  Bonds  in  anticipation  of  tax. 

?  146!).  No  levy  on  lots. 

s  1470.  Penalty  for  corpse  nuisance. 

§  1470-1.  Trustees   of  townships   or   cemetery  associations   may   cause   dead  bodies   to  be   re- 
moved in  certain  cases. 

§  1470-2.  May  sell  burial  grounds  at  public  sale:  proviso. 

§  1470-3.  Disinterment,  etc.,  of  body  buried   in   cemetery. 

§  1470-4.  Form  of  application. 

§  1470-5.  Writ  of  mandamus. 

S  1471.  May  be  removed,  etc. 

Gas  Companies. 

§  247S.        Peculating  price  of  electric  light,  artificial  and  natural  gas. 
§  2479.        Minimum  not  to  be  reduced  during  term   agreed  upon. 


6  Private  Corporations  in  Ohio. 

Part  II,  §§  259-2481. 

§  24S0.  When  council  may  occupy  streets  for  gas  purposes,  etc. 

§  2481.  Gas  companies  may  be  permitted  to  occupy  streets. 

§  2482.  Forfeiture  of  charter  for  neglect  to  furnish  gas. 

§  24S3.  A  temporary  failure  shall  work  no  forfeiture. 

§  2484.  Council  may  appoint  gas  inspector,  his  duties  and  compensation. 

§  2485.  Exclusive  monopoly  shall  not  be  allowed  to  gas  companies. 

§  2485a.  Consolidation  of  companies  doing  business  in  same  municipality. 

§  2491.  Contract  to  supply  municipality  with  electric  light. 

Railroads  in  Municipal  Corporations. 
§  10.  Mun.  Code.     Appropriation  of  railroad  property. 
§  2404.        Council  to  pass  ordinance  to  light  bridge  or  railway. 
§  2495.        Character  of  the  ordinance. 
£  2496.        Notice  of  requirement  to  be  given. 
§  2497.        Procedure  on  failure  to  light  bridge  or  railway. 
§  2498.        Assessment  for  expense  of  such  lighting,  etc. 
§  2499.        How  lien  may  be  enforced. 
§  2500.        Regulation  of  rate  of  speed. 
An  Act.       Authorizing  changes  and   extensions  of    existing  routes  and  transfer  systems. 

Street  Railroads. 

§  2501.  Terms  and  conditions  of  construction  and  operation  to  be  fixed  by  council;  renewal 
of  grant. 

§29.  Mun.  Code.  Grant  of  street  railway  franchises;  use  of  tracks  of  existing  companies, 
etc. 

§  30,  Mun.  Code.     Publication,  bids,  consents,  term  of  grant,  release  from  obligation. 

§  31.  Mun.  Code.     Rights  of  abutting  owners:  curative  provisions. 

§  2503.        Grade  of  streets  when  street  railroad  is  constructed. 

§2504.        Pavement  of  streets  where  railroads  are  constructed;  proviso. 

§  2505.        Council  of  city  or  village  may  grant  extension  of  street  railroad. 

§  2505a.  Power  to  lease  or  purchase,  to  enter  into  beneficial  arrangement,  to  purchase 
stock,  etc.;  perfection  of  lease  or  purchase;  rights  of  dissenting  stockholder; 
increase  of  fare  prohibited. 

§  2505b.      Consolidation. 

§  2505c.  Use  of  street  railway  tracks  for  operation  of  passenger  cars  of  other  railway  com- 
pany, etc. 

§  2505e.  Street  railway  company  may  lease  or  purchase  property,  etc.,  of  electric  light  and 
power  company;  stockholders*  meeting  to  perfect  lease  or  purchase;  dissenting 
stockholder;  powers  of  purchasing  company;  lease  or  sale  not  to  affect  liability 
of  light  and  power  company. 

Taxation  of  Corporations. 
§2734.        "Who  shall  list  personal  pioperty. 
§  2735.        "Where  personal  property  shall  lie  listed. 
§2744.        Corporations  generally;   their  returns. 
§  2745.        Returns  by  foreign  insurance  companies. 


Al  [SCELLAN  EOUS    PR(  (VISIONS. 


Part   II,    S§   259-2481. 


§  2745a.      Insurance  policy  on  Ohio  property  not  to  be  placed  in  agency  outside  Btate;  re-in- 
surance. 
§  2745b.      Revocation  of  license  for  violating  above. 

8  2745c.      Superintendent  of  insurance  to  inspect  company  charged  with  violating  the  law. 
§2745d.     Expenses  <>f  inspection. 
§2740.       In  whose  name  property  to  be  listed;   but   stork   in  companies   which  make  return 

of  capital  not  to  be  listed  by  shareholder. 
§2747.       When  lists  to  be  made;  notice  and  forms  to  be  given  bj   assessors. 
§2748.        Statements  to  be  verified  by  oath. 
§2749.        .State  auditor  to  furnish   blanks;   oath   of   person   1  i - 1 in^r  property;   fixing   values; 

county  auditor  to  assemble  and  instruct   assessors  and    furnish  blanks. 
§2759.        Statement  by  unincorporated  bank-;  deductions  by  county  auditor. 
$  2759a.      Further  statement  required. 
§  2759b.      Savings  banks. 
§  27GO.        How  averages  obtained. 
|  27G1.        Persons  commencing  the  business  of  banking  after  the   day  preceding  the   second 

Monday  of  April;  how  to  be  listed. 
§  27G2.        Shares  in  incorporated  banks  to  be  listed. 
§  27G3.        Tax  on  real  estate. 

§  2764.        Names  of  stockholders  and  number  of  shares  held  by  each, 
s  2765.        Return  to  be  made  by  cashier  to  the  auditor. 

§  2766.        Auditor  to  fix  value  of  bank  shares,  and  report  to  board  of  equalization. 
§2769.        Proceedings  when  bank  fails  to  make  return;  penalty  for  making   false  statement. 
§  2770.        Board   of  appraisers   for  railroad   company. 
§2771.        President  of  board;    quorum;    secretary;    record  of  votes:   copy    of   minutes   to  be 

kept  in  auditor's  office. 
§2772.        Board  of  valuation  of  railroad  to  meet  annually,  in  May:   duties  of  the  board. 
§2773.        Penalty  for  officers,  etc.,  refusing  to  comply  with  requirements  of  board;  contempt 

of  board;  punishment. 
§  2774.        Apportionment  of  valuation  of  railway  property. 
§  2775.        Compensation  of  members  of  the  board. 

§  2776.        How  portion  of  value  for  this  state  found  when  part  of  road  in  another. 
§  2777.        Who  deemed  express,  telegraph,  or  telephone  company. 
§  2778.        Annual  statement  to  auditor  of  state. 

fi  2778a.      State  board  of  appraisers  and  assessors;   assessments  by;   correction  thereof. 
§2779.        Penalty  for  failure  to  file  statement;  further  powers  of  board:   penalty  for  refusal 

to  testify  or  bring  books;  statutes  as  to  false  returns  applicable. 
§2780.        Report    of   board;    filing   of    statements,    etc.;    deduction    of    value    of   real    estate; 

apportionment  and  taxation  of  valuations. 
§  2780-7.     Freight-line  and  equipment  companies  defined. 
§2780-8.     Annual  statements  of  same:  blanks:   exemptions. 
§2780-9.     State   board   of   appraisers   and    assessors;    members;    officers;    minutes;    meeting; 

right  to  appear,  etc. 
§  2780-10.  Penalty,  recovery,  and  disposition  of  same. 
§2780-11.  Annual  report;  assessment  and  collections;  penalty. 
§  2780-12.  Sleeping-car  company  defined. 
§  27S0-13.  Annual  statement. 

§2780-14.  State  board  of  appraisers  and  assessors;  members,  powers,  etc. 
§  2780-15.  Penalty. 
§2780-16.  Report;   filing  of  statements,  etc.;   disposition  of  tax;   suit  to  collect. 


8  Private  Corporations  in  Ohio. 


Bankers,  §111. 


§  2780-17.  Electric   light,   gas,   natural   gas,   pipe-line,    waterworks,    street    railroad,    railroad, 

messenger,  or  signal  companies  denned. 
S  2780-18.  Annual  statements  of  same. 
§2780-19.   State    board    of    appraisers   and    assessors;    members;    officers;    minutes;    meeting; 

right  to  appear,  etc. 
§2780-20.  Penalty;   recovery  and  disposition  of  same. 
§2780-21.  Annual  reports;  assessments  and  collection;  penalty. 
§  2780-22.  Exemption  of  municipalities. 

§  27S0-23.  Auditor  shall  fde  reports  with  secretary  of  state. 
§2808.        State  board  for  banks;  how  constituted. 
§  2809.        Powers  of  board. 

§  2810.        State  auditor   to  report  to  county  auditors. 
S  2811.        How  constituted,  and  their  meeting. 
§  2S12.        Their  powers. 

§  2839.        Lien  on  bank  shares;  unlawful  to  transfer  stock  until  delinquent  taxes  are  paid. 
§  2840.        Bank  may  pay  taxes  and  deduct  amount  from  dividend. 
§  2842.        Agent  of 'express  or  telegraph  company  to  pay  taxes  of  the  company;   one  may  pay 

for  all  the  offices  of  the  county. 
§  2843.        Unlawful  to  act  as  agent  of  or  perform  services  for  certain  companies  when  taxes 

due  and  unpaid  for  twenty  days. 

Mechanic's  Liens  on  Railroads. 
§  3207.         What  contracts  for  railroad  work  shall  stipulate;  claims:  order  of  priority. 
§  320S.         What  lien  shall  have  precedence;  how  such  lien  perfected;  proceedings  under. 
§  3209.         How  action  may  be  brought. 

S  3210.         Contractor  to  be  notified  of  time  of  payment;  disputed  claims,  and  how  adjusted. 
§3211.         To  whom  preceding  sections  apply;   the  word  "owner"  defined. 

Lien  of  Common  Carriers. 

§  3221.  Notice  to  owner  of  receipt  of  freight. 

§  3222.  Register  of  freight. 

§  3223.  When  property  may  be  sold. 

§  3224.  Notice  of  sale  of  property  to  be  given. 

§  3225.  Disposition  of  proceeds  of  sale. 

§  322G.  Suit  to  subject  freight  to  payment  of  costs,  etc. 

§  3227.  Storage  and  the  lien  therefor. 

§  3228.  Copy  of  notice,  sale  bill,  etc.,  to  be  kept. 

§  3229.  Sale   of  perishable  articles. 

§3230.  Within  what  time  property  may  be  claimed. 

§  3231.  Penalty  for  neglect  to  comply  with  provisions. 

Mechanic's  Liens  on  Railroads. 
§  3231-1.      Lien  upon  railroad,  for  labor  or  material  furnished. 
§  3231-2.      How  lien  obtained. 
§3231-3.      Bond:   when  injunction  may  issue. 
§3231-4.      Engineer  to  make  measurements;   estimates,  etc. 
§  3231-5.      Penalty. 

§  111.  BANKERS,  ETC.,  NOT  TO  ACT  AS  NOTARIES.  —  No  banker,  broker, 
cashier,  director,  teller,  or  clerk  of  any  bank,  banker  or  broker  or  other  person  hold- 
ing any  official  relation  to  any  bank,  banker,  or  broker,  shall  be  competent  to  act  as 
notary  public  in  any  matter  to  which  said  bank,  banker,  or  broker  is  in  any  way 
interested.     (March  23,  1893,  90  v.  119;  April  11,  1876,  73  v.  206.) 

Liability   for   default   of   notary. 

See  Bank  v.  Butler,  41  Oh.  St.  519    (1885). 


M  [SCELLANEOUS    PROVISIONS. 


Fees  of  Secretary   of  State,    §   148a. 


§  148a.  FEES  TO  BE  CHARGED  BY  SECRETARY  OF  STATE  FOR  OFFICIAL. 
SERVICES.  —  The  secretary  of  state  shall  hereafter  charge  and  collect  the  following- 
fees  for  official  services: 

1.  For  filing  the  articles  of  incorporation  of  any  corporation  whose  capital  stock 
is  ten  thousand  dollars  or  under,  ten  dollars;  of  a  corporation  whose  capital  stock  is 
over  ten  thousand  dollars,  one-tenth  of  one  per  cent,  upon  the  authorized  capital  stock 
of  such  corporation. 

2.  For  filing  a  certificate  of  increase  of  the  capital  stock  of  any  corporation  having" 
a  capital  stock  where  the  amount  of  the  increase  is  ten  thousand  dollars  or  under,  ten 
dollars;  where  the  amount  of  increase  is  over  ten  thousand  dollars,  one-tenth  of  one 
per  cent,  upon  the  proposed  amount  of  increased  capital. 

3.  For  filing  articles  of  agreements  of  consolidation  of  corporations  having  a 
capital  stock,  the  following  fees  shall  he  collected  hy  the  secretary  of  state:  Said 
articles  of  agreements  of  consolidation  shall  be  treated  as  the  articles  of  incorporation 
of  the  new  consolidated  corporations  created  by  such  articles  or  agreements  of  con- 
solidation, and  the  fees  for  filing  such  articles  or  agreements  of  consolidation,  shall  be 
the  same  in  each  case  as  is  hereinbefore  set  forth  for  the  filing  of  articles  of  incor- 
poration of  a  corporation  having  the  same  amount  of  capital  stock,  as  is  provided  for 
by  the  articles  or  agreements  of  consolidation  for  the  new  consolidated  corporation, 
created  by  any  such  articles  or  agreement  of  consolidation;  and  in  fixing  the  amount 
of  such  fees,  no  credit  shall  be  allowed  for  fees  previously  paid  by  any  of  the  con- 
stituent corporations,  parties  to  such  consolidation,  but  the  same  shall  be  determined 
solely  by  the  amount  of  capital  stock  of  the  new  corporation  created  by  such  articles 
or  agreements  of  consolidation. 

4.  For  filing  the  articles  of  incorporation  of  any  mutual  insurance  corporation 
not  having  a  capital  stock,  or  of  any  other  mutual  corporation  not  organized  strictly 
for  benevolent  or  charitable  purposes  and  having  no  capital  stock,  or  of  any  corpora- 
tion organized  for  any  of  the  purposes  mentioned  in  section  three  thousand  six  hun- 
dred and  thirty  of  the  Revised  Statutes  of  Ohio,  or  in  the  sections  supplementary 
thereto,  twenty-five  dollars,  save  and  except  as  hereinafter  provided. 

5.  For  filing  the  articles  of  incorporation  of  corporations  formed  for  religious, 
benevolent  or  literary  purposes;  or  of  such  corporations  as  are  not  organized  for  profit, 
have  no  capital  stock,  and  are  not  mutual  in  their  character;  or  of  religious  or  secret 
societies,  or  of  societies  or  associations  composed  exclusively  of  any  class  of 
mechanics,  express,  telegraph,  railroad  or  other  employes,  formed  for  the  mutual  pro- 
tection and  relief  of  the  members  thereof  and  their  families  exclusively,  two  dollars. 

6.  For  filing  the  articles  of  incorporation  of  corporations  formed  for  the  purposes 
named  in  section  three  thousand  eight  hundred  and  thirty-three  of  the  Revised  Stat- 
utes, ten  dollars;  for  filing  a  certificate  of  the  increase  of  the  capital  stock  of  any  such 
corporation,  five  dollars. 

7.  For  filing  a  certificate  of  the  reduction  of  the  capital  stock  of  any  corporation, 
five  dollars. 

8.  For  filing  a  copy  of  the  decree  of  court,  changing  the  name  of  any  corporation, 
five  dollars. 

9.  For  filing  a  certified  copy  of  the  acceptance  by  any  corporation  incorporated 
prior  to  the  adoption  of  the  present  constitution,  of  any  of  the  provisions  of  the 
Revised  Statutes,  five  dollars. 

10.  For  filing  an  amendment  to  the  articles  of  incorporation  of  any  corporation, 
twenty  cents  a  hundred  words,  to  be  in  no  case  less  than  five  dollars. 

11.  For  filing  for  a  railroad  company  a  certificate  of  extension  of  line,  a  certifi- 
cate of  change  of  termini,  a  certificate  of  the  adoption  or  change  of  location,  a  certifi- 
cate of  the  intention  of  the  corporation  to  construct  a  branch  line,  or  a  certificate  of 
change  of  route,  twenty  cents  a  hundred  words,  to  be  in  no  case  less  than  five  dollars. 

12.  For  filing  a  certificate  of  the  extension  of  purpose,  or  change  of  domicile,  of 
any  corporation,  five  dollars. 

13.  For  filing  other  certificates  not  herein  enumerated,  except  certificates  of  elec- 


10  Private  Corporations  in  Ohio. 

Foreign  Corporations,  §  148c. 

tion,  for  filing  which  no  charge  shall  be  made,  twenty  cents  a  hundred  words,  to  be 
in  no  case  less  than  five  dollars. 

14.  Fcr  filing  the  copy  of  papers  evidencing  the  incorporation  of  any  municipal 
corporation,  the  annexation  of  territory  by  any  municipal  corporation,  or  the  advance- 
ment or  reduction  in  grade  of  any  municipal  corporation,  five  dollars,  to  be  paid  by 
the  corporation,  the  petitioners  therefor,  or  their  agent. 

15.  For  filing  the  certificate  of  subscription  required  to  be  filed  by  section  three 
thousand  two  hundred  and  forty-four  of  the  Revised  Statutes,  two  dollars. 

16.  For  filing  a  name,  or  names  or  initials  by  manufacturers,  bottlers  and  dealers 
in  ginger  ale,  seltzer-water,  soda-water,  mineral  water  and  other  beverages,  under 
the  act  of  April  9,  1880  (77  O.  L.,  140),  five  dollars. 

17.  For  making  every  certificate  under  the  great  seal  of  the  state,  one  dollar. 

18.  For  recording  miscellaneous  records,  papers,  or  other  documents,  required  by 
law  to  be  recorded  in  the  office  of  the  secretary  of  state,  twenty  cents  a  hundred  words. 

19.  For  making  copies  of  articles  of  incorporation,  and  for  making  copies  in  other 
cases,  the  fees  provided  for  in  original  section  one  hundred  and  forty-eight  of  the 
Revised  Statutes  shall  be  charged;  and  all  fees  herein  established  shall  be  paid  into 
the  state  treasury  as  provided  in  said  original  section;  and  the  secretary  of  state  shall 
neither  file  nor  record  any  of  the  articles  of  incorporation,  certificates  or  other  papers 
hereinabove  referred  to,  unless  the  fees  for  filing  same  are  first  duly  paid.  (Feb- 
ruary 12,  1889,  86  v.  33;  March  14,  1888,  85  v.  80;  May  15,  1886,  83  v.  165;  March 
18,  1884,  81  v.  52.) 

Validity   and   application   to   consolidated  companies. 
Ashley  v.  Ryan,  49  Oh.  St.  504  (1892)  ;  s.  c,  153  U.  S.  436. 

§  148c.  FOREIGN  CORPORATIONS.— Every  foreign  corporation,  incorporated  for 
purposes  of  profit,  now  or  hereafter  doing  business  in  this  state,  and  owning  or 
using  a  part  or  all  of  its  capital  or  plant  in  this  state,  shall,  within  thirty  days  after 
the  passage  of  this  act,  or,  in  case  of  a  company  hereafter  coming  into  this  state, 
then  before  it  proceeds  to  do  any  business  in  this  state,  under  the  oath  of  the  presi- 
dent, secretary,  treasurer,  superintendent  or  managing  agent  in  this  state  of  such 
corporation,  make  and  file  with  the  secretary  of  state,  a  statement,  in  such  form  as 
the  secretary  of  state  may  prescribe,  containing  the  following  facts: 

1.  The  number  of  shares  of  authorized  capital  stock  of  the  company,  and  the  par 
value  of  each  share. 

2.  The  name  and  location  of  the  office  or  officers  [offices]  of  the  company  in  Ohio, 
and  the  name  and  address  of  the  officers  or  agents  of  the  company  in  charge  of  its 
business  in  Ohio. 

3.  The  value  of  the  property  owned  and  used  by  the  company  in  Ohio,  where 
sit'.ate,  and  the  value  of  the  property  of  the  company  owned  and  used  outside  of  Ohio. 

4.  The  proportion  of  the  capital  stock  of  the  company  which  is  represented  by 
property  owned  and  used  [and]   by  business  transacted  in  Ohio. 

From  the  facts  thus  reported,  and  any  other  facts  coming  to  his  knowledge  bear- 
ing upon  the  question,  the  secretary  of  state  shall  determine  the  proportion  of  the 
capital  stock  of  the  company  represented  by  its  property  and  business  in  Ohio,  and 
shall  charge  and  collect  from  the  company,  for  the  privilege  of  exercising  its  fran- 
chises in  Ohio,  one-tenth  of  one  per  cent,  upon  the  proportion  of  the  authorized  cap- 
ital stock  of  the  corporation,  represented  by  property  owned  and  used  and  business 
transacted  in  Ohio,  being  the  same  fee  required  to  be  paid  by  corporations  formed 
under  the  laws  of  Ohio.  Upon  the  payment  of  the  said  amount,  the  secretary  of  state 
shall  issue  to  the  foreign  corporation  a  certificate  that  such  corporation  has  complied 


Miscellaneous  Provisions. 


Foreign  Corporations,  §   148c. 


with  the  laws  of  Ohio,  and  is  authorized  to  do  business  therein,  stating  the  amount 
of  its  entire  capital   and  the  proportion  of  which  is  represented  in  Ohio.      Provided, 
this  section  shall  not  apply  to  foreign  insurance,  banking,  savings  and  loan,  or  build- 
ing and  loan  companies,  or  to  foreign,  co-operative  or  investment  companies  organ- 
ized to  sell  certificates  or  debentures  on  the  installment  or  partial  payment  plan,  or 
companies  doing  business  on  the  service  dividend  plan,  who  have  deposited  with  the 
treasurer  of  the  state  of  Ohio   security  satisfactory  to  him  of  the  value  of  not  less 
than  twenty-five  thousand  dollars,  and  who  shall  annually  thereafter  deposit  securi- 
ties equal  in  value  to  ten  per  cent,  of  the  gross  receipts  on  the  amount  of  business 
done  in  Ohio  for  the  preceding  year,  until  the  whole  amount  so  deposited  has  reached 
the  sum  of  one  hundred  thousand  dollars,  for  the  protection  of  the  holders  of  said  cer- 
tificates or  debentures,  or  to  express,  telegraph,  telephone,  railroad,  sleeping  car,  trans- 
portation or  other  corporations  engaged  in  Ohio  in  interstate  commerce  business;  or  to 
foreign   corporations   entirely   non-resident,   soliciting   business,   or  making   sales,   in 
this   state   by   correspondence   or   by   traveling   salesmen.      Any   foreign   corporations 
shall  have  the  right,  on  application,  to  be  heard  by  the  secretary  of  state,  touching 
the   matter  of  the  determination   of  the  proportion   of   its   capital   stock  represented 
by   property   used    and  business   done   in  Ohio.      Any   corporation   aggrieved   by   the 
decision  of   the   secretary   of   state,   may,   within   ten  days,   appeal  to  the   auditor   of 
state,  the  treasurer  of  state  and  the  attorney  general,  whose  decision  in  the  matter 
shall  be  final.      Every  foreign  corporation  subject   to  the  provisions   of  this   section 
which  shall  neglect   or  fail   to  comply  with  its  requirements;   shall   be  subject   to   a 
penalty  of  one  thousand  dollars,  and  an  additional  penalty  of  one  thousand  dollars 
[for]    every  month  that  it  continues  to  transact  any  business  in  Ohio  without  com- 
plying with  the  requirements  of  this  section,  to  be  recovered  by  action  in  the  name 
of  the  state,  and  on  collection,  paid  into  the  state  treasury  to  the  credit  of  the  gen- 
eral revenue  fund.      The  attorney  general,  on  the  request  of  the  secretary  of  state, 
shall  institute  such  action  in  the  court  of  common  pleas   of  Franklin  county,   or  in 
any  county  in  which  such  corporation  has  an  office  or  place  of  business,  as  he  prefers. 
The  governor  and  secretary  of  state,  on  good  cause  shown,  may,  in  their  discretion, 
remit   the    penalty,    or    any    part    thereof,    prescribed    in    this    section.       No    foreign 
corporations  subject  to  the  provisions  of  this  section,  shall  maintain  any  action  in 
this  state  upon  any  contract  made  by  it  in  this  state  after  the  time  fixed  by  this  act 
for  compliance  by  such  corporation  with  its  requirements,  until  it  shall  have  com- 
plied with  the  requirements  of  this  act,  and  procured  the  requisite  certificate  from 
the  secretary  of  state.     Every  corporation  which  has  filed  its  statement  and  paid  the 
privilege  tax  under  this   section,  and  which  thereafter  shall  increase  the  proportion 
of  its  capital  stock,  represented  by  property  used  and  business  done  in  Ohio,  shall 
within  thirty  days  after  such  increase,  file  an  additional  satement  with  the  secretary 
of  state,  and  pay  a  fee  of  one-tenth  of  one  per  cent,  upon  the  amount  of  its  increase 
of  its  capital  stock,  represented  by  property  owned  or  business  done  in  Ohio.     All  fees 
collected  by  the  secretary  of  state  under  this  section  shall  be  paid  by  him  into  the 
state  treasury  to  the  credit  of  the  general  revenue  fund.     Every  corporation  subject 
to  the  provisions  of  this  section  which  complies  with  its  requirements,  shall  not  be 
subject  to  process  of  attachment  under  section  5521,  Revised  Statutes,  or  any  law  of 
Ohio,  upon  the  ground  that  it  is^a  foreign  corporation  or  a  non-resident  of  this  state. 
"  No  person  shall  be  required  to  list  for  taxation  any  share  or  shares  of  the  capital 
stock   of    any   corporation,   whether    domestic   or    foreign,    the   property   of   which   is 
taxed  in  the  name  of  such  company  in  Ohio,  nor  shall  any  person  be  required  to  list 


12  Private  Corporations  in  Ohio. 

Foreign  Corporations,  §   148d. 

for  taxation  any  share  or  shares  of  the  capital  stock  of  any  corporation,  whether 
domestic  or  foreign,  if  satisfactory  proof,  when  demanded,  is  furnished  to  the  taxation 
authorities  by  the  holder  of  such  share  or  shares  that  two-thirds  or  more  of  the 
property  of  such  corporation  is  taxed  in  Ohio  and  the  remainder  is  taxed  in  some 
other  state  or  states  of  the  United  States;  provided,  however,  that  this  shall  not  apply 
to  shares  in  any  foreign  corporation  unless  it  shall,  whether  otherwise  required  by  law 
to  do  so  or  not,  pay  annually  for  the  privilege  of  exercising  its  franchise  in  Ohio, 
upon  its  entire  authorized  capital  stock,  the  same  percentage  as  is  required  by  law 
on  the  subscribed  or  issued  capital  stock  of  domestic  corporations  for  profit."  (May 
10,  1902,  95  v.  539;  April  14,  1900,  94  v.  225;  April  23,  1898,  93  v.  225;  May  16, 
1894,  91  V.  272.) 

Exemption   from   attachment  —  constitutionality. 

Puerring  v.  Carter-Crume   Co.,  16  0.  C.  C.  G29   (1898)  ;  s.  c,  9  C.  D.  411. 

§  148d.  CERTIFICATE  NECESSARY  FOR  FOREIGN  STOCK  CORPORATION, 
ETC. —  No  foreign  stock  corporation,  other  than  a  banking  or  insurance  corporation, 
or  foreign  building  and  loan  associations,  or  foreign  co-operative  or  investment  com- 
panies, or  foreign  companies  organized  to  sell  certificates  or  debentures  on  the  install- 
ment or  partial  payment  plan,  or  foreign  corporations  doing  business  on  the  service 
dividend  plan,  who  have  deposited  with  treasurer  of  the  state  of  Ohio  securities  sat- 
isfactory to  him  of  the  value  of  not  less  than  twenty-five  thousand  dollars,  and  shall 
annually  thereafter  deposit  securities  to  the  satisfaction  of  said  treasurer  equal  in 
value  to  ten  per  cent,  of  the  gross  receipts  on  the  amount  of  business  done  in  Ohio 
for  the  preceding  year,  until  the  whole  amount  so  deposited  has  reached  the  sum  of 
$100,000,  for  the  protection  of  the  holders  of  such  certificates  or  debentures, 
shall  do  business  in  this  state  without  first  having  procured  from  the  secretary  of 
state  a  certificate  that  it  has  complied  with  all  the  requirements  of  law  to  authorize 
it  to  do  business  in  this  state,  and  that  the  business  of  the  corporation  to  be  carried 
on  in  this  state  is  such  as  can  be  lawfully  carried  on  by  a  corporation  incorporated 
under  the  laws  of  this  state  for  such  or  similar  business,  or  if  more  than  one  kind 
of  business,  by  two  or  more  corporations  so  incorporated  for  such  kinds  of  business 
exclusively.  The  secretary  of  state  shall  deliver  such  certificate  to  every  such  corpo- 
ration so  complying  with  the  requirements  of  the  laws  of  this  state.  No  such  foreign 
stock  corporations  doing  business  in  this  state  without  such  certificate,  shall  main- 
tain any  action  in  this  state  upon  any  contract  made  by  it  in  this  state  until  it 
shall  have  procured  such  certificate.  Before  granting  such  certificate,  the  secretary 
of  state  shall  require  every  such  foreign  corporation  to  file  in  his  office  a  sworn  copy 
of  its  charter  or  certificate  of  incorporation,  and  a  statement  under  its  corporate  seal 
particularly  setting  forth  the  amount  of  capital  stock,  the  business  or  objects  of  the 
corporation  which  it  is  engaged  in  carrying  on,  or  which  it  proposes  to  engage  in  or 
carry  on  within  the  state,  and  a  place  within  this  state  which  is  to  be  its  principal 
place  of  business,  and  designating  in  the  manner  prescribed  in  the  code  of  civil 
procedure  in  this  state,  a  person  upon  whom  process  against  such  corporation  may 
be  served  within  this  state.  The  person  so  designated  must  have  an  office  or  place  of 
business  at  the  place  where  such  corporation  is  to  have  its  principal  place  of  business 
within  this  state.  Such  designation  shall  continue  in  force  until  revoked  by  an 
instrument  in  writing  designating  in  like  manner  some  other  person  upon  whom 
process  against  such  corporation  may  be  served  in  this  state.  Any  agent  so  desig- 
nated by  such  foreign  corporation  may,  in  the  name  and  on  behalf  of  such  corpora- 


M  [SCELLANEOUS    PROVISIONS. 


13 


Foreign  Corporations,  S    148d. 


tion,  bring  or  prosecute  actions  in  any  of  the  courts  of  this  state  in  the  same  manner 
and  with  like  effect  as  if  done  by  an  officer  of  such  corporation.  If  the  person  so 
designated  die  or  remove  from  the  place  where  such  corporation  has  its  principal 
place  of  business  within  this  state,  and  such  corporation  does  not,  within  thirty  days 
after  such  death  or  removal,  designate  in  like  manner  another  person  upon  whom 
process  against  it  may  be  served  within  this  state,  the  secretary  of  state  shall  revoke 
the  authority  of  such  corporation  to  do  business  within  this  state,  and  process  against 
such  corporation  in  actions  upon  any  liability  incurred  within  this  state  before  such 
revocations,  may  after  such  death  or  removal,  and  before  another  designation  is 
made,  be  served  upon  the  secretary  (of  state).  At  the  time  of  such  service  the 
plaintiff  shall  pay  to  the  secretary  of  state  two  dollars,  to  be  included  in  his  taxable 
costs  and  disbursements,  and  the  secretary  of  state  shall  forthwith  mail  a  copy  of 
such  notice  to  such  corporation,  if  its  address  or  the  address  of  any  officer  thereof 
is  known  to  him.  For  each  certificate  thus  issued  by  the  secretary  of  state  he  shall 
be  entitled  to  receive  and  shall  be  paid  fees  according  to  the  amount  of  capital  stock 
of  each  such  corporation,  as  follows: 

$100,000  or  less $15   00 

More  than  $100,000  and  not  exceeding  $300,000 20   00 

More  than  $300,000  and  not  exceeding  $500,000 25   00 

More  than  $500,000  and  less  than  $1,000,000 30   00 

$1,000,000  or  more 50   00 


Which  fees  and  the  several  sums  of  two  dollars  above  named  are  to  be  paid  by 
him  to  treasurer  of  state  to  credit  of  general  revenue  fund.  Provided  that  such  foreign 
corporations  as  comply  with  the  provisions  of  section  148c  of  the  Revised  Statutes, 
as  amended  May  16,  1894,  shall  not  be  subject  to  process  of  attachment  under  section 
5521,  Revised  Statutes,  or  any  law  of  Ohio,  upon  the  ground,  that  it  is  a  foreign 
corporation  or  non-resident  of  this  state.  If  any  person  solicits,  or  transacts,  within 
this  state,  any  business  for  any  such  foreign  corporation,  until  it  shall  have  com- 
plied with  all  the  provisions  of  this  section,  he  shall  be  deemed  guilty  of  a  misde- 
meanor, and  on  conviction,  shall  be  fined  not  less  than  ten  dollars  nor  more  than 
five  hundred  dollars,  or  be  imprisoned  not  less  than  ten  days  nor  more  than  six 
months,  or  both.  It  shall  be  the  duty  of  the  prosecuting  attorney,  upon  direction 
of  the  attorney-general,  to  prosecute  any  person  charged  with  a  violation  of  the 
provisions  of  this  section.  (April  23,  1898,  93  v.  227;  May  19,  1894,  91  v.  355; 
April  25,   1893,  90  v.  261.) 


What   are   corporations. 

In  determining  whether  organizations  are 
or  are  not  corporations,  the  designation  of 
them  as  joint  stock  associations  or  partner- 
ships, by  the  statute  of  New  York,  under 
which  they  were  created,  and  their  classifica- 
tion as  joint  stock  associations  and  partner- 
ships by  the  courts  of  New  York,  are  not 
conclusive,  if  they  have  all  the  properties, 
rights,  attributes,  privileges,  immunities  of 
corporations,  they  may  be  regarded  as  such.  — 
State  v.  United  States  Express  Co.,  1  X.  P. 
259  (1805):  s.  c.  2  X.  P.  98  (1895):  Express 
Co.  v.  State,  55  Oh.  St.  69  (1896).  Sec  Stat.' 
ex  rel.  v.  Ackerman,  51  Oh.  St.  163.  197 
(1894);  Andrews  Bros.  Co.  v.  Youngstown 
Coke  Co.,  86  Fed.  585   (1898). 

Power  of  foreign  corporations. 

In  the  absence  of  statutes,  there  is  nothing 
prohibiting  a  foreign  corporation  from  doing 
business,  suing  and  being  sued,  and  exercising 


all  its  general  powers  in  this  state.  —  New- 
burg  Petroleum  Co.  v.  YVeare.  27  Oh.  St.  343 
(1875):  Hanna  v.  International  Petroleum 
Co.,  23  Oh.  St.  622  (1873). 

Rights  obtained   only  through  comity. 

Foreign  corporations  can  exercise  none  of 
their  franchises  or  powers  within  this  state, 
except  by  comity  or  legislative  consent.  That 
consent  may  be  upon  such  terms  and  condi- 
tions as  the  general  assembly  under  its  legifi 
lative  power  may  impose.  —  Western  Union 
Tel.  Co.  v.  Mayer,  28  oh.  St.  521  (1876): 
State  ex  rel.  v.  W.  U.  M.  Ins.  Co..  47  Oh.  St. 
167   (1890). 

Do    not    become    Ohio    corporations    by 
doing  business  here. 

A  foreign  railroad  corporation,  by  merely 
leasing,  possessing  and  operating  in  this  state, 
the  property  of  a  domestic  corporation,  does 
not  thereby  become  an  Ohio  corporation.  — 
Baltimore, "etc.,  R.  R.  Co.  v.  Cary,  28  Oh.  St. 


14 


Private  Corporations  in  Ohio. 


Foreign  Corporations,  §   148d. 


208    (1876)  :    Railway  v.   Stringer,  32  Oh.   St. 
408,  472    i  1S77). 

Powers. 

A  corporation  can  have  no  greater  power  in 
a  foreign  state  than  it  has  in  the  state  of  its 
creation:  it  being  always  limited  to  the  pow- 
ers conferred  in  its  charter  from  charging 
more  than  six  per  cent,  interest,  cannot  charge 
more  in  a  foreign  state,  although  the  law 
there  permits  a  greater  rate  to  be  charged. — 
Ewing  v.  Toledo  Savings  Bank,  43  Oh.'St.  31 
(1885).  See  Curtis  v.  Hutchinson,  10  W.  L.  J. 
134  (1852!  :  Ohio,  etc.,  R.  R.  Co.  v.  Indian- 
apolis, etc.,  R.  R.  Co.,  5  A.  L.  Reg.  733  ( 1860) . 

Same  subject  —  exception. 

Where  the  charter  of  a  foreign  corporation 
denies  it  a  power  required  by  the  policy  of 
this  state,  its  acts  in  this  state  must  be  gov- 
erned by  our  policy,  for  instance,  a  New  York 
corporation,  though  prohibited  in  New  York, 
may  in  Ohio  make  an  assignment  for  the 
benefit  of  creditors.  —  Hall  v.  Ohio,  etc.,  Iron 
Co.,  24  W.  L.  B.  310   (1890). 

Same  subject  —  exception. 

Where  the  charter  powers  of  a  corporation 
are  general,  and  are  broad  enough  to  cover  a 
certain  act,  a  general  law  of  the  state  creat- 
ing the  corporation  restricting  corporations 
in  doing  such  acts  will  not  affect  it  in  other 
states;  for  instance,  the  power  of  a  New 
York  corporation  to  take  lands  by  devise  in 
Ohio  is  not  affected  by  the  New  York  statutes 
of  wills.  —  American  Bible  Society  v.  Mar- 
shall, 15  Oh.  St.  537   (1864). 

Power  to  hold   land. 

A  foreign  corporation  may  hold  land  in  this 
state  when  not  forbidden  by  express  legisla- 
tion or  the  general  policy  of  the  law.  —  State 
ex  rel.  v.  Sherman,  22  Oh.  St.  411,  433 
(1872)  ;  American  Bible  Society  v.  Marshall, 
15  Oh.  St.  537   (1864). 

Power  to  sue  and  be  sued. 

In  the  absence  of  statute  a  foreign  corpora- 
tion has  power  in  this  state  to  sue  and  be 
sued.  —  Hanna  v.  International  Petroleum 
Co.,  23  Oh.  St.  622  (1873)  ;  Lewis  v.  Bank  of 
Kentucky,  12  Oh.  132  (1843);  Mohr  Dis- 
tilling Co.  v.  Lamar  Ins.  Co.,  7  W.  L.  B.  341 
(1882). 

Power   to   make   assignment   for   benefit 
of  creditors. 

Hall  v.  Ohio,  etc.,  Coal  Co.,  24  W.  L.  B.  310 
(1890). 

Preference  by  a  foreign  corporation. 

A  foreign  corporation  having  no  property 
in  Ohio  may  prefer  an  Ohio  creditor  by  trans- 
ferring to   him   property  out  of  the   state.  — 

Pirsl   Nat.  Bank  v.  McKinney,  16  O.  C.  C.  80 

(1898)  ;  s.  c,  9  CD.  1. 

Organization  to   evade  our  laws. 

It  is  no  defense  to  an  action  by  a  foreign 
corporation  that  it  was  organized  in  a  foreign 
Btate   to   evade   laws   of   this   state   governing 


corporations.  —  Newburg  Petroleum  Co.  v. 
Weare,  27  Oh.  St.  343,  352  (1875).  See 
Second  Nat.  Bank  v.  Hall,  35  Oh.  St.  158,  167 
(1878);    s.   c,  2  C.   S.  C.   Rep.  397. 

Are  not  citizens. 

Corporations  of  other  states  are  not  citizens 
entitled  to  all  the  privileges  and  immunities 
of  citizens  in  the  several  states  within  the 
meaning  of  the  U.  S.  Constitution.  —  Western 
Union  "Tel.  Co.  v.  Mayer,  28  Oh.  St.  521 
(1876). 

Citizenship  —  removal  of  actions. 

For  the  purpose  of  jurisdiction  and  re- 
moval, in  such  case,  a  company  incorporated 
by,  and  doing  business  within,  another  state 
is  to  be  regarded  as  a  citizen  of  such  other 
state.  —  Shelbv  v.  Hoffman,  7  Oh.  St.  450 
(1857). 

Constitutionality. 

These  acts  are  constitutional.  —  iEtna  Iron, 
etc.,  Co.  v.  Taylor,  3  N.  P.  152;  s.  c,  4  Dec. 
180;  s.  c,  13  6.  C.  C.  602  (1896)  ;  s.  c,  5  C. 
D.  242. 

Ouster  by  quo  warranto. 

When  a  foreign  corporation  doing  business 
in  this  state  is  exercising  its  franchises  in 
contravention  of  the  laws  thereof,  it  may  be 
ousted  therefrom  by  proceedings  in  quo  war- 
ranto. —  State  ex  rel.  v.  W.  U.  M.  Ins.  Co., 
47  Oh.  St.  167  (1890)  ;  State  ex  rel.  v.  Insur- 
ance Co.,  49  Oh.  St.  440  ( 1892 ) . 

Failure  to  comply  with  law. 

To  take  advantage  of  the  act  as  a  defense 
in  a  suit  instituted  by  a  foreign  corporation, 
the  averments  of  the  answer  must  bring  such 
foreign  corporation  plainly  within  the  pro- 
visions of  it,  and  show  that  such  foreign  cor- 
poration does  not  belong  to  the  class  of  foreign 
corporations  exempted  by  the  law  from  the 
provisions.  —  Toledo  Commercial  Co.  v.  Glenn 
Mfg.  Co.,  11  O.  C.  C.  153  (1896)  ;  s.  c,  5  C.  D. 
131;  s.  c,  55  Oh.  St.  217;  Brady  v.  Palmer,  19 
O.  C.  C.  6S7;  s.  c,  10  C.  D.  27  (1899);  s.  c,  8 
C.  D.  703;  s.  c.  (Sup.  Ct.  1901),  45  W.  L.  B. 
176. 

Penalty  —  effect    on    contract. 

Where  the  penalty  imposed  by  the  statute 
is  on  the  persons  acting  as  agents,  and  the 
statute  is  silent  as  to  the  contract,  it  seems 
that  the  contract  is  good.  —  See  LTnion,  etc., 
Ins.  Co.  v.  McMillen,  24  Oh.  St.  67  (1893)  ; 
Manhattan  Ins.  Co.  v.  Ellis,  32  Oh.  St.  388 
(1S77). 

Failure   to   comply  —  effect   on   contract. 

A  contract  made  by  a  foreign  corporation, 
which  had  failed  to  comply  with  the  act  of 
1893,  was  not  void.  —  See  Fergus  v.  Colum- 
bus, 6  N.  P.  82   (1899)  ;  s.  c,  8  Dec.  290. 

Right  of  action  merely  suspended. 

Where  the  statute  provides  that  a  foreign 
corporation  failing  to  comply  with  the  law 
shall  not  maintain  an  action  at  law  until  it 
has    complied    with    the    law,    the    remedy    is 


Miscellaneous  Provisions. 


15 


Foreign  Corporations,  §   148d. 


merely  suspended  until  such  time  as  the  cer- 
tificate is  procured.  —  Simplex  Dairy  Co.  v. 
Cole,  86  Fed.  739  (1898)  j  Crefeld  Miller  v. 
Goddard,  69  Fed.  141   (1895). 

What  is  doing  business. 

Whether  a  foreign  corporation  is  carrying 
on  business  in  a  state  must  be  determined  by 
what  it  has  done,  or  is  doing,  rather  than  l>y 
what  it  may  hereafter  do,  under  powers  re- 
served to  it  in  existing  contracts,  bu1  nol  yel 
exercised.  For  one  person  to  supply  the 
means  to  another  to  do  business  with  or  on  is 
not  the  doing  of  business  by  the  former.  — 
United  States  v.  American  Bell  Telephone 
Co.,  29  Fed.  17   (188G)  ;  s.  c.,  5  0.  F.  D.  558. 

Need  not  commence  business  in  its  own 
state. 

The  legal  existence  of  a  foreign  corporation 
cannot  be  questioned  because  it  has  done  no 
business  in  its  home  state  other  than  its  or- 
ganization. —  Hanna  v.  international  Petro- 
leum Co..  23  Oh.  St.  622   (1873). 

Failure  to  comply  —  no  defense  to  prose- 
cution for  crime. 

On  the  trial  of  an  indictment  for  the  em- 
bezzlement of  moneys  coming  into  the  posses- 
sion of  the  defendant  as  the  agent  of  a  foreign 
corporation,  it  is  not  a  defense  that  the  cor- 
poration had  failed  to  file  with  the  secretary 
of  state  the  statement  required  by  §§  148c  and 
148d.  —  State  v.  Pohlmever,  59  Oh.  St.  491 
(1898). 

Corporations      engaged      in      interstate 
commerce. 

This  law  can  only  apply  to  such  corpora- 
tions as  come  within  the  jurisdiction  of  the 
state  for  the  purpose  of  carrying  on  their 
business  here:  but  a  state  cannot  prohibit 
corporations  from  doing  business  in  any  other 
state  in  selling  its  products  or  wares  in  any 
manner  that  it  chooses.  —  Toledo  Commercial 
Co.  v.  Glen  Mfg.  Co.,  11  0.  C.  C.  153:  s.  c,  5 
C.  D.  131  (1896)  :  s.  c,  55  Oh.  St.  217  (1896)  ; 
General  Electric  Co.  v.  Lima  Electric  Ry.  Co., 
4  N.  P.  167  (1897);  Haldy  v.  Tomoor-Haldy 
Co.,  3  N.  P.  43  (1896)  ;  s.  c,  4  Dec.  118; 
Aultman,  Miller  Co.  v.  Holder,  34  W.  L.  B.  92 
(1895). 

Inspection  of  books. 

When  a  foreign  corporation  does  business  in 
this  state  its  stockholders  may  obtain  an  in- 
spection of  its  books  by  appropriate  proceed- 
ings. —  State  ex  rel.  v.  Farmer,  7  0.  C.  C.  429 
(1892). 

Waiver    of   right    to    remove    actions   to 
federal  courts. 

A  statute  which  requires  a  foreign  corpora- 
tion, as  a  condition  precedent  to  obtaining 
permission  to  do  business  here,  to  waive  the 
right  to  remove  causes  to  the  federal  courts, 
is  repugnant  to  the  constitution  and  laws  of 
the  United  States,  and  the  waiver  is  void.  — 
Railway  v.  Stringer,  32  Oh.  St.  468  (1877)  ; 
Baltimore,  etc..  R.  R.  Co.  v.  Gary,  28  Oh.  St. 
208    (1876);    Railway  Passenger,  etc.,  Co.  v. 


Pierce,  27  Oh.  St.  155  (  1875)  ;  New  York  Ins. 
Co.  \.  Best,  23  Oh.  St.  L05  1872)  ;  Thorns  v. 
Greenwood,  7  A.  L.  i:.  320  (1878). 

License  to  do  business  is  not  contract. 
A  license  to  a  foi  eign  coi  pot  a  I  ion  to  do 
business  in  a  state  on  I  lie  payment  of  a  fee 
ilocs  nol  constitute  a  contracl  so  as  t<>  pre- 
\<ni  the  state  from  adding  another  fee. — 
.Etna  I  inn.  etc.,  Co.  \.  Taylor,  .')  N.  P.  102 
L89C)  ;   s.  c,    t   \>rr.   L80. 

Privilege  of  doing  business  is  not  prop- 
erty. 
Sec   Western    Union   Tel.  Co.   v.   Mayer,  28 

Oh.  St.  521    |  1876). 

Payment    of    fees    under    protest  —  rem- 
edy. 

See  .Etna  Iron,  etc.,  Co.  v.  Taylor,  3  X.  P. 
152    (1896). 

License  fee. 

The  fee  of  one-tenth  of  one  per  cent,  on  the 
capital  stock  covers  the  authorized  capital 
stock,  not  merely  the  paid-up  stock.  —  Opin- 
ion of  Attorney-General,  32  W.  L.  D.  274 
(1894).  See  .Etna  Iron,  etc.,  Co.  v.  Taylor, 
3  X.  P.  152;  s.  c,  4  Dec.  180;  13  O.  C.  C.  602 
(1896)  ;  s.  c,  5  C.  D.  242. 

Legal  existence  of  foreign  corporations. 

A  person  dealing  with  a  foreign  corpora- 
tion is  estopped  to  deny  its  legal  existence 
and  right  to  do  business.  —  Newburg  Petro- 
leum Co.  v.  Weare,  27  Oh.  St.  343  (1875); 
Second  Nat.  Bank  v.  Hall,  35  Oh.  St.  158 
(1878). 

Pleading. 

A  foreign  corporation  suing  in  the  courts 
of  this  state  is  not  required  to  set  out  in  the 
petition  the  terms  of  its  charter  showing  its 
capacity  to  maintain  the  action.  —  Smith  v. 
Weed  Sewing  Machine  Co.,  26  Oh.  St.  562 
(1875).  See  Elektron  Mfg.  Co.  v.  Jones  Bros. 
Co.,  8  0.  C.  C.  311  (1894)  ;  s.  c,  4  C.  D.  555; 
Bradv  v.  National  Supply  Co.,  45  W.  L.  B. 
176   ('1901). 

Pleading. 

When  the  charter,  powers  or  franchises  of  a 
foreign  corporation  become  the  basis  of  an 
action  in  this  state,  they  must  be  specially 
pleaded,  and  a  pleading  for  that  purpose 
which  does  not  disclose  the  state  by  which 
nor  the  terms  in  which  they  were  granted  is 
bad  on  demurrer.  —  Devoss  v.  Gray.  22  I  »h.  St. 
159  (1871).  See  Lewis  v.  Bank  of  Kentucky. 
12  Oh.  132,  151  (1843):  Bradv  v.  National 
Supply  Co.,  45  W.  L.  B.  176  (1901). 

Pleading  license   to  do  business. 

It  is  not  necessary  for  a  foreign  corporation 
bringing  suit  to  allege  compliance  with  local 
laws.  Want  of  compliance  is  a  matter  of 
defense.  —  Bradv  v.  Palmer,  19  0.  C.  C.  687 
(1899);   s.  c,  45  W.  L.  B.  176. 

Proof  of  existence  and  powers. 

The  charter  of  a  foreign  corporation  being 
a  law  of  another  state,  can  only  be  properly 


16 


Private  Corporations  in  Ohio. 


Foreign  Corporations,   §   14Sd. 


brought  before  the  court  by  its  introduction  as 
evidence.  When  thus  properly  produced,  be- 
ing a  written  instrument,  its  construction  will 
be  for  the  court.— James  v.  Cincinnati,  etc., 
E  E  Co  2  Dis.  261,  266  (1858).  See  Niagara 
Bank  v.  Baker,  15  Oh.  St.  68  (1SG4). 

Voluntary  appearance,  what  is. 

\  foreign  corporation  which  cannot  be 
served  and  does  not  intend  to  become  a  party 
is  not  to  be  considered  as  making  a  voluntary 
appearance,  so  as  to  justify  the  court  in  mak- 
ing it  a  party  to  the  record,  merely  because  it 
asiumes  the'defense  of  the  suit  for  the  actual 
defendant,  pursuant  to  previous  contract,  and 
conducts  the  same  by  its  own  attorneys,  and 
in  part  by  witnesses  who  are  under  salary 
from  it  at' the  time  of  testifying;  nevertheless 
the  evidence  may  disclose  conduct  on  the  part 
of  the  foreign  corporation  that  will  estop  it  in 
subsequent  litigation  over  the  same  matter. — 
Bidwell  v.  Toledo  Consolidated  St.  Ry.  Co.,  35 
W.  L.  B.  (Fed.)  196  (1896);  s.  c,  36  W.  L. 
B.  94. 

Appointment  of  agent. 

An  agent  upon  whom  service  can  be  made 
must  be  one  actually  appointed  by  or  repre- 
senting the  corporation  as  a  matter  of  fact, 
not  one  created  by  implication  or  construction, 
contrary  to  the  intention  of  the  parties. — 
United  States  v.  American  Bell  Telephone  Co., 
29  Fed.  17  (1886)  ;  s.  c,  5  0.  F.  D.  558. 

Managing  agent. 

The  term  managing  agent  implies  the  carry- 
ing on  of  the  corporate  business,  or  some  sub- 
stantial part  thereof,  by  means  of  an  agent 
who  manages  and  conducts  the  same  within 
the  limits  of  the  state,  for  and  on  account  of 
the  foreign  corporation. —  United  States  v. 
American  Bell  Telephone  Co.,  29  Fed.  17 
(1886);  s.  c,  5  0.  F.  D.  558. 

Service  of  process. 

While  a  strict  compliance  with  the  statutes 
will  be  required,  a  substantial  compliance 
is  necessary.  The  return  must  show  the  serv- 
ice to  have  been  made  upon  the  managing 
agent  in  and  for  this  state.  It  is  not  suffi- 
cient to  merely  show  service  upon  the  defend- 
ant's agent. —  Fleckmyer  Wheel  Co.  v.  Com- 
mercial Wheel  Co.,  35  W.  L.  B.  358   (1896). 

Service  of  process   on   managing   agent. 

A  service  upon  "  John  Doe,  agent  of  the 
Lamar  Ins.  Co.,  and  the  chief  officer  of  its 
agency  in  the  city  of  Cincinnati.  No  chief 
officer  of  said  company  found,"  is  service  upon 
its  managing  agent. —  Mohr  Distilling  Co.  v. 
Lamar  Ins.  Co.,  7  W.  L.  B.  341  (1882).  See 
American  Express  Co.  v.  Johnson,  17  Oh.  St. 
fi41  (1867) ;  Barney  v.  New  Albany,  etc.,  R.  R. 
Co.,  1  Eandv,  571  (1855) ;  Gibbin  v.  Kanawha 
Coal  Co.,  2  C.  S.  C.  75  (1870)  ;  Wheeling,  etc., 
Co.  v.  Baltimore,  etc.,  R.  R.  Co.,  1  C.  S.  C.  311 
(1871). 


Service  of  process. 

Foreign  corporations  doing  business  in  Ohio 
may  be  sued  in  the  United  States  circuit 
courts  by  process  served  on  the  agent  of  such 
corporations  in  the  state,  and  it  is  immaterial 
where  the  cause  of  action  arose  or  the  con- 
tract was  executed,  or  that  the  plaintiff  is 
not  a  citizen  of  Ohio.—  Mohr  Distilling  Co. 
v.  Sundry  Ins.  Cos.,  7  W.  L.  B.  335  (1882): 
Runkle  v.  Lamar  Ins.  Co.,  5  W.  L.  B.  217 
(1880). 

Service  of  process  by  mail. 

See  Heart  v.  Lycoming  Ins.  Co.,  26  Oh.  St. 
594  (1875);  s.  c,  2  A.  L.  R.  355.  See  Mohr 
Distilling  Co.  v.  Fireman's  Ins.  Co.,  12  A.  L. 
R.  168  (1883). 

Judgments     against     foreign     corpora- 
tions. 

Where  a  corporation  chartered  by  the  state 
of  Indiana  was  allowed  by  a  law  of  Ohio  to 
transact  business  in  the  latter  state  upon  the 
condition  that  service  of  process  upon  the 
agent  of  the  corporation  should  be  considered 
as  service  upon  the  corporation,  a  judgment 
against  the  corporation  obtained  by  means  of 
such  process  ought  to  have  been  received  in 
Indiana  with  the  same  faith  and  credit  that 
it  was  entitled  to  in  Ohio. —  Lafayette  Ins. 
Co.  v.  French,  18  How.   (U.  S.)  404   (1855). 

Attachment,    exemption   from. 

A  corporation  complying  with  the  law  is 
exempt  from  attachment. —  See  Peurring 
Bros.    v.   Carter-Crume    Co.,    35    W.    L.    B.   2 

(1896).     See  §  5521. 

Attachment,   jurisdiction. 

See  §  5030;  Rainey  v.  Jefferson  Iron  Works, 
8  O.  C.  C.  674  (1894)  ;  s.  c,  4  C.  D.  231. 

Attachment  of  property,  practice. 

See  Vallette  v.  Kentucky  Trust  Co.,  2 
Handy,  1  (1855). 

What  is  a  foreign  corporation  —  attach- 
ment. 

"  Nonresident  of  the  county  "  and  "  foreign 
corporation  "  are  not  equivalent  terms  so  far 
as  corporations  are  concerned  in  the  justice 
of  the  peace  attachment  act.  Foreign  cor- 
porations only  include  corporations  organized 
by  other  states.— Bo^v  v.  Ohio,  etc.,  Trust 
Co.,  12  Oh.  St.  139  (1861). 

Attachment  of  stock. 

The  situs  of  stock  being  the  domicile  of  the 
company,  it  cannot  be  reached  by  garnishment 
in  a  foreign  state  by  service  on  the  agent  of 
the  corporation  and  by  publication  for  service 
on  the  nonresident  owner  of  the  stock. — 
Ashley  v.  Quintard,  41  W.  L.  B.  289   (1899). 

Garnishment  of  foreign   corporations. 

A  foreign  corporation  doing  business  in 
Ohio,  and  having  a  managing  agent  in  the 
state,  may,  by  virtue  of  §§  5547  and  5534,  be 
served  with  garnishee  process,  and  held  liable 


Miscellaneous  Provisions. 


17 


Reports  of  Corporations;  Excise  Tax. 


thereunder. —  Rainey  v.  Maas,  28  W.  L.  B. 
246  (1892);  Pennsylvania  R.  R.  Co.  v.  Peo- 
ples, 31  Oh.  St.  537  (1877);  Rocke  v.  Raiuey, 
15  W.  L.  B.  333  (1886).  See  Kelley  Co.  v. 
Garvin  Machine  Co.,  6  N.  1'.  350  (1896);  a.  c, 
4  Dee.  374;  Baltimore,  etc.,  R.  R.  Co.  v.  May, 
25  Oh.  St.  347    (1874). 

Personal    liability    of     stockholders     of 
foreign  corporations. 

The  obligations  of  the  contract  of  the 
stockholders  in  a  foreign  corporation  can- 
not be  deemed  to  be  impaired  by  the  pro- 
vision of  a  statute,  enacted  prior  to  the  in- 
corporation of  such  company,  imposing  the 
same  personal  liability  upon  stockholders  in 
foreign  corporations  doing  business  in  t In- 
state as  upon  stockholders  in  domestic  corpo- 
rations.—  Pinney  v.  Nelson.  22  Sup.  Court 
Rep.    (U.  S.)   52  (1901). 

Law«     applicable     to     foreign    corpora- 
tions. 

When  a  corporation  is  formed  in  one  state, 
and  by  the  express  terms  of  its  charter  it  is 
created  for  doing  business  in  another  slate, 
and  business  is  done  in  that  state,  it  must 
"be  assumed  that  the  charter  contract  was 
made  with  reference  to  its  laws,  and  the  lia- 
bilities which  those  laws  impose  will  attend 
the  transaction  of  such  business. —  Pinney  v. 
Nelson,  22  Sup.  Court  Rep.   (U.  S.)   52  (1901). 

Taxation  of  shares  in  foreign  corpora- 
tions under  old  acts. 

Hubbard  v.  Brush,  61  Oh.  St.  252  (1899). 
See  Lee  v.  Sturges,  46  Oh.  St.  153  (1889); 
Bradley  v.  Bauder,  36  Oh.  St.  2S  (1880); 
Worthington  v.  Sebastian.  25  Oh.  St.  1 
(1874);  Sturges  v.  Carter.  114  U.  S.  511 
(1884).  See  opinion  of  R.  P.  Rainev,  17  W. 
1.  B.  14  (1887). 


Taxation,    choscs   in    action. 

Choses  in  action,  whether  book  accounts, 
promissory  notes,  or  the  like,  of  foreign  cor- 
poration- that  are  kept  in  this  state  and  arise 
out  of  the  corporate  business  transacted  here, 
are  subject  to  taxation  under  the  provision-  61 
section  2744  of  the  Revised  Statutes. —  Hub- 
bard  v.  Brush,  01   Oh.  St.  252    (1899). 

Corporation   created  by  two  states. 

A  corporation  created  by  concurrent  legis- 
lation of  two  states,  receiving  from  each  the 
same  charter  in  legal  effect,  has  a  legal  domi- 
cile in  each  state,  and  may  lawfully  hold  its 
meetings  and  transact  it-  corporate  business 
in  either  state. —  Covington,  etc.,  Bridge  <  o 
v.  Mayor,  3]  Oh.  St.  .".17  |  L877).  See  Ohi. 
R.  R.  Co.  v.  Wheeler,  1  Black  (U.  S. 
(1861);  Sebastian  v.  Covington  Bridge  Co., 
21  Oh.  St.  451    (1871). 

Foreign   railway  companies. 

See  §  3399,  notes. 

Foreign  building  and  loan  associations. 

See  §§  3836-12  et  seq. 

Certain  corporations  cannot  do  business 
in    Ohio. 

Foreign  corporations  having  power  to  deal 
in  stocks  cannot  do  business  in  Ohio,  and  the 
secretary  of  state  cannot  issue  a  certificate  of 
authority  unless  such  powers  are  eliminated. 
—  See  opinion   of  Slice)-.    Attorney-General. 

See  generally  paper  by  E.  J.  Marshall  32 
W.  L.  B.  166  (1894),  and  paper  by  F.  E. 
Laughran,  34  W.  L.  B.  334   (1S95). 

Domestic  corporation  does  not  become 
a  foreign  corporation  by  doing  busi- 
ness in  a   foreign  state. 

See  Lander  v.  Burke.  G5  Oh.  St.  532   (1902). 


An  Act   to  Require   Corporations   to    File  Annual   Reports    with    the  Secre- 
tary of  State  and  to  Pay  Annual  Fees   Therefor. 
Be  it  enacted  by  the  General  Assembly  of  the  State  of  Ohio: 

§  1.  DOMESTIC  CORPORATIONS,  FOR  PROFIT,  REQUIRED  TO  FILE  AN- 
NUAL REPORT  WITH  SECRETARY  OF  STATE.— Every  corporation  organized 
under  the  laws  of  this  state,  for  profit,  shall  make  a  report  in  writing  to  the  secre- 
tary of  state,  annually,  during  the  month  of  May,  in  such  form  as  the  secretary  of 
state  may  prescribe,  containing  the  following  facts: 

1.  The  name  of  the  corporation. 

2.  The  location  of  its  principal  office. 

3.  The  names  of  the  president,  secretary,  treasurer  and  members  of  the  board 
of  directors,  with  postoffice  address  of  each. 

4.  The  date  of  the  annual  election  of  officers  of  such  corporation. 

5.  The  amount  of  authorized  capital  stock  and  the  par  value  of  each  share. 

6.  The  amount  of  capital  stock  subscribed,  the  amount  of  capital  stock  issued 
and  outstanding,  and  the  amount  of  capital  stock  paid  up. 

7.  The  nature  and  kind  of  business  in  which  the  company  is  engaged  and  its 
place  or  places  of  business. 

LAW   GOV.   PRIV.   COR. —  2. 


18  Private  Corporations  in  Ohio. 

Reports  of  Corporations;  Excise  Tax. 

5.  The  change  or  changes,  if  any,  in  the  above  particulars  made  since  the  last 
annual  report. 

Such  report  shall  bo  signed  and  sworn  to  before  an  officer  duly  authorized  to 
administer  oaths,  by  the  president,  vice  president,  secretary,  or  general  manager  of 
the  corporation,  and  forwarded  to  the  secretary  of  state. 

FEE  TO  BE  PAID  UPON  FILING  SUCH  REPORT.—  Upon  the  filing  of  such 
report,  the  secretary  of  state  shall  charge  and  collect  from  such  corporation  a  fee 
of  one-tenth  of  one  per  cent,  upon  the  subscribed  or  issued  and  outstanding  capital 
stock  of  said  corporation,  and  to  be  not  less  than  ten  dollars  in  any  case.  (April  11, 
1902,  95  v.    124.) 

§  2.  FOREIGN  CORPORATIONS,  FOR  PROFIT,  REQUIRED  TO  FILE  ANNUAL 
REPORT  WITH  SECRETARY  OF  STATE.— Every  foreign  corporation  for  profit, 
now  or  hereafter  doing  business  in  this  state,  and  owning  or  using  a  part  or  all  of 
its  capital  or  plant  in  this  state,  and  subject  to  compliance  with  the  provisions  of 
section  148c  of  the  Revised  Statutes  of  Ohio,  shall,  in  addition  to  the  statements 
required  by  section  148c  and  148d,  Revised  Statutes  of  Ohio,  make  a  report  in  writ- 
ing to  the  secretary  of  state,  annually,  during  the  month  of  September,  in  such  form 
as  the  secretary  of  state  may  prescribe,  containing  the  following  facts: 
•  1.  The  name  of  the  corporation  and  under  the  laws  of  what  state  or  country 
organized. 

2.  The  location  of  its  principal  office. 

3.  The  names  of  the  president,  secretary,  treasurer  and  members  of  the  board  of 
directors,  with  the  postoffice  address  of  each. 

4.  The  date  of  the  annual  election  of  officers. 

5-     The  amount  of  authorized  capital  stock,  and  the  par  value  of  each  share. 

6.  The  amount  of  capital  stock  subscribed,  the  amount  of  capital  stock  issued, 
and  the  amount  of  capital  stock  paid  up. 

7.  The  nature  and  kind  of  business  in  which  the  company  is  engaged  and  its 
place  or  places  of  business,  both  within  and  without  the  state  of  Ohio. 

8.  The  name  and  location  of  its  office  or  offices  in  Ohio,  and  the  name  and 
address  of  the  officers  or  agents  of  the  company  in  charge  of  its  business  in  Ohio. 

9.  The  value  of  the  property  owned  and  used  by  the  company  in  Ohio,  where 
situated,  and  the  value  of  the  property  owned  and  used  outside  of  Ohio  and  where 
situated. 

10.  The  change  or  changes,  if  any,  in  the  above  particulars  made  since  the  last 
annual  report. 

Such  report  shall  be  signed  and  sworn  to  before  an  officer  duly  authorized  to 
administer  oaths,  by  the  president,  vice  president,  secretary,  superintendent  or 
managing  agent  in  this  state,  and  forwarded  to  the  secretary  of  state. 

FEE  TO  BE  PAID  UPON  FILING  SUCH  REPORT.—  Upon  the  filing  of  such 
report  the  secretary  of  state,  from  the  facts  thus  reported  and  any  other  facts  coming 
to  his  knowledge  bearing  upon  the  question,  shall  determine  the  proportion  of  the 
authorized  capital  stock  of  the  company  represented  by  its  property  and  business  in 
Ohio,  and  shall  charge  and  collect  from  such  company,  in  addition  to  the  initial  fees 
provided  for  in  sections  148c  and  148d  of  the  Revised  Statutes  of  Ohio,  for  the 
privilege  of  exercising  its  franchises  in  Ohio,  annually,  one-tenth  of  one  per  cent, 
upon  the  proportion  of  the  authorized  capital  stock  of  the  corporation  represented  by 
property  owned  and  used  and  business  transacted  in  Ohio,  and  to  be  not  less  than 
ten  dollars  in  any  case.     (April  11,  1902,  95  v.  125.) 

§  3.  DOMESTIC  CORPORATIONS,  NOT  FOR  PROFIT  AND  HAVING  NO 
CAPITAL  STOCK,  REQUIRED  TO  FILE  ANNUAL  REPORT  WITH  SECRETARY 
OF  STATE.—  Every  corporation  organized  under  the  laws  of  this  state,  not  for  profit, 
and  having  no  capital  stock,  shall  make  a  report  in  writing  to  the  secretary  of  state 


Miscellaneous  Provisions.  19 

Reports  of  Corporations;  Excise  Tax. 

annually,  during  the  month  of  December,  in  such  form  as  the  secretary  of  state  may 
prescribe,  containing  the  following  facts: 

1.  The  name  of  the  corporation. 

2.  The  location  of  its  principal  office. 

3.  The  names  of  the  president,  secretary,  treasurer  and  members  of  the  board 
of  trustees,  or  directors,  with  postoffice  address  of  each. 

4.  The  date  of  the  annual  election  of  such  corporation. 

5.  The  object  or  purpose  which  such  corporation   is  engaged  in  carrying  out. 
Such  report  shall  be  signed  and  sworn  to  before  an  officer  authorized  to  administer 

oaths,  by  the  president,  vice  president,  secretary  or  other  chief  officer  of  the  corpora- 
tion, and  forwarded  to  the  secretary  of  state. 

FEE  TO  BE  PAID  UPON  FILING  SUCH  REPORT.—  Upon  the  filing  of  such 
report  the  secretary  of  state  shall  charge  and  collect  the  following  fees:  For  all  cor- 
porations "organized  for  the  purposes  mentioned  in  section  148a,  paragraph  4,  of  the 
Revised  Statutes  of  Ohio,  ten  dollars;  for  all  corporations  organized  for  the  purposes 
mentioned  in  section  148a,  paragraph  5,  one  dollar.     (April  11,  19C2,  95  v.   126.) 

§  4.  CERTIFICATE  TO  BE  ISSUED  BY  SECRETARY  OF  STATE  SHOWING 
COMPLIANCE  WITH  THIS  ACT.—  Upon  the  filing  of  the  report  and  the  payment 
of  the  fee  provided  for  in  the  preceding  sections  of  this  act,  the  secretary  of  state 
shall  make  out  and  deliver  to  such  corporation  a  certificate  of  the  compliance  by  such 
corporation  with  the  preceding  sections  and  the  payment  of  the  annual  fee  therein 
provided  for. 

ALL  FEES  THUS  COLLECTED  TO  BE  PAID  INTO  THE  STATE  TREASURY; 
MONTHLY  REPORT  TO  AUDITOR  OF  STATE.—  The  secretary  of  state  shall  make  a 
report  monthly  to  the  auditor  of  state  of  the  annual  fees  collected  under  this  act, 
and  shall  pay  the  same  into  the  state  treasury  to  the  credit  of  the  general  revenue 
fund.     (April  11,    1902,   95  v.   126.) 

§  5.  PENALTY  FOR  FAILURE  TO  MAKE  REPORT  OR  PAY  FEE;  CORPORA- 
TIONS FOR  PROFIT.—  In  case  any  corporation  required  to  file  the  report  and  pay 
the  fee  prescribed  in  sections  1  and  2  of  this  act  shall  fail  or  neglect  to  make  such 
report  or  pay  such  fee  within  the  period  prescribed  in  said  sections,  respectively,  such 
corporation  shall  be  subject  to  a  penalty  of  five  hundred  dollars,  and  an  additional 
penalty  of  one  hundred  dollars  per  day  for  each  day's  omission  after  the  time  limited 
in  this  act  for  filing  such  report  and  paying  such  fee.  Such  penalty  and  the  annual 
fee  or  fees  required  to  be  paid  by  the  provisions  of  sections  1  and  2  of  this  act  may 
be  recovered  by  an  action  in  the  name  of  the  state,  and  on  collection  paid  into  the 
treasury  to  the  credit  of  the  general  revenue  fund. 

The  attorney  general,  on  request  of  the  secretary  of  state,  shall  institute  such 
action  in  the  court  of  common  pleas  of  Franklin  county,  or  of  any  county  in  the  state 
in  which  such  corporation  has  an  office  or  place  of  business,  as  he  prefers. 

REMISSION  OF  PENALTY.—  The  governor,  secretary  of  state  and  attorney  gen- 
eral, upon  good  cause  shown,  may,  in  their  discretion,  remit  the  penalty  on  (or)  any 
part  thereof  prescribed  in  this  section. 

PENALTY  FOR  FAILURE  TO  MAKE  REPORT  OR  PAY  FEE;  CORPORATION 
NOT  FOR  PROFIT.—  In  case  any  corporation  required  to  file  the  report  and  pay  the 
fee  prescribed  in  section  3  of  this  act  shall  fail  or  neglect  to  make  such  report  or  pay 
such  fee  for  three  months  after  the  expiration  of  the  time  limited  by  this  act,  and 
such  default  is  wilful  and  intentional,  the  attorney  general  shall,  on  the  request  of 
the  secretary  of  state,  bring  an  action  in  the  court  of  common  pleas  of  Franklin 
county,  or  of  any  county  in  this  state  in  which  such  corporation  is  located,  to  forfeit 


20  Private  Corporations  in  Ohio. 


Reports  of  Corporations;  Excise  Tax. 


and  annul  the  charter  of  such  corporation,  and-  if  such  court  is  satisfied  that  such 
default  is  wilful  and  intentional,  the  court  is  authorized  to  revoke  and  annul  such 
charter.     (April    11,    1902,   95   v.    126.) 

§  6.  HEARING  BY  SECRETARY  OF  STATE  AND  APPEAL  EROM  DECISION 
THEREOF.—  Any  corporation  shall  have  the  right  to  be  heard  by  the  secretary  of 
state  upon  the  matter  of  determination  of  the  amount  of  fees  due  under  the  provi- 
sions of  this  act.  Any  corporation  aggrieved  by  the  decision  of  the  secretary  of  state 
may,  within  ten  days,  appeal  to  the  auditor  of  state,  treasurer  of  state  and  the 
attorney  general,  whose  decision  in  the  matter  shall  be  final.  (April  11,  1902, 
95   v.    127.) 

§  7.  CERTAIN  CORPORATIONS  EXCEPTED  FROM  THE  PROVISIONS  OF 
THIS  ACT.—  Provided  that  electric  light,  gas,  natural  gas,  water  works,  pipe  line, 
street  railroad,  electric  interurban  railroad,  steam  railroad,  messenger,  union  depot, 
express,  freight  line,  sleeping  car,  telegraph,  telephone  and  other  corporations, 
required  by  law  to  file  annual  reports  with  the  auditor  of  state,  and  insurance,  fra- 
ternal beneficial,  building  and  loan,  bond  investment,  and  other  corporations  required 
by  law  to  file  annual  reports  with  the  superintendent  of  insurance,  shall  not  be 
subject  to  the  provisions  of  the  preceding  sections  of  this  act. 

FIRST  REPORT  OF  NEWLY  ORGANIZED  CORPORATION;  WHEN  TO  BE 
FILED. —  Provided  further,  that  a  corporation  shall  not  be  required  to  file  its  first 
annual  report  under  this  act  until  the  proper  month  hereinbefore  provided  for  the 
filing  of  such  report,  next  following  the  expiration  of  six  months  from  the  date  of  its 
incorporation  or  admission  to  do  business  in  this  state.     (April  11,  1902,  95  v.  127.) 

§  8.  CERTIFICATE  OF  DISSOLUTION,  REVOCATION  OF  CHARTER  OR 
ABANDONMENT  TO  BE  FILED  WITH  SECRETARY  OF  STATE.— Every  domestic 
corporation,  in  case  of  dissolution,  revocation  of  charter  or  abandonment  of  its  cor- 
porate purposes,  shall  file  with  the  secretary  of  state  a  certificate  of  such  dissolution, 
revocation  of  charter  or  abandonment;  in  case  of  dissolution  or  abandonment  by 
voluntary  action  of  the  corporation,  such  certificate  shall  be  signed  by  the  president 
and  secretary  of  the  corporation;  in  case  of  dissolution,  or  revocation  of  charter  by 
action  of  a  competent  court,  such  certificate  shall  be  signed  by  the  clerk  of  the  court 
entering  the  decree  of  dissolution  or  revocation.  The  fees  for  making  and  filing 
such  certificate  with  the  secretary  of  state  shall  be  taxed  in  the  costs  in  favor  of  the 
party  paying  the  same,  and  shall  have  the  same  priority  as  other  costs  in  the  dissolu- 
tion proceedings. 

FOREIGN  CORPORATION  RETIRING  FROM  STATE  SHALL  FILE  CERTIFI- 
CATE TO  THAT  EFFECT.— Every  foreign  corporation  when  it  shall  retire  from 
business  in  this  state  is  hereby  required  to  file  with  the  secretary  of  state  a  certificate 
to  that  effect,  signed  by  the  president  and  secretary  of  the  corporation. 

FEES  FOR  FILING  SUCH  CERTIFICATES.—  The  fee  for  filing  certificates  of 
dissolution,  revocation  of  charter,  abandonment,  or  retirement  of  corporations,  for 
profit,  shall  be  five  dollars;  for  filing  such  certificates  of  corporations,  not  for  profit, 
ore   dollar. 

SURRENDER  OF  CHARTER  OF  CORPORATION  NOT  IN  ACTIVE  EXIST- 
ENCE AT  TIME  OF  PASSAGE  OF  THIS  ACT.— Provided,  that  the  charter  of  a 
corporation  which  is  shown  to  have  been  no  longer  in  active  existence  at  the  time  of 
the  passage  of  this  act,  may  be  surrendered  on  the  payment  of  one  dollar,  on  proof 
as  otherwise  provided  by  law. 

MERE  RETIREMENT  FROM  BUSINESS,  ETC..  DOES  NOT  EXEMPT.— The 
mere   retirement    from  businees   or  voluntary   dissolution    of   a  domestic   or   foreign 


MlSC  ELLA  X  EOUS    PROVISIO  X  S. 


21 


Commissioner  of  Railroads  and  Telegraphs,    SS   245-247. 


corporation  without  having  filed  the  certificate  provided  for  in  this  section,  shall  not 
exempt  it  from  the  requirements  to  make  reports  and  pay  fees  in  accordance  with  the 
provisions  of  this  act.     (April   11,   1902,   95  v.    127.) 

§    8.     This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage.     (April 
11,  1902,  95  v.  127.) 


Note: 

Law." 


This    act    is    the    so    called    "  Willis 


Constitutionality. 

Sec-  Southern  Gum  Co. 
JS.  017   i  L902). 


v.   Lay  I  in,    17    W.    L. 


COMMISSIONER  OF  RAILROADS  AND  TELEGRAPHS. 
§  245.  HOW  APPOINTED,  AND  TERM;  WHO  ELIGIBLE.—  A  commissioner 
of  railroads  and  telegraphs  shall  be  appointed  by  the  governor,  by  and  with  the 
advice  and  consent  of  the  senate;  and  he  shall  hold  his  office  for  two  years:  no  person 
is  eligible  to  the  office  who  is  an  officer  or  employe  of  a  railroad  company,  or  who  owns 
or  is  interested  in  the  stock  or  bonds  of  a  railroad  company.  (April  5,  1867,  64  v. 
Ill,  §   1;  S.  &  S.  76.) 


For  an  act  authorizing  the  governor,  auditor 
of  state,  attorney -general,  railroad  commis- 
sioner, and  state  librarian,  to  sell  property 
deeded  by  Albert  A.  Bliss  and  wife  to  the 
state  of  Ohio  bv  deed  bearing  date  February 
19,  1852.  see  81  v.   175. 

For  an  act  to  authorize  the  issue  of  bonds 
to  meet  deficiencies  in  the  general  revenue 
fund,  see  83  v.   154. 

Must  enforce  act  against  having  inexperi- 
enced employees,  see  §  3305-13. 

To  enforce  an  act  entitled  "  to  regulate  the 
height  of  bridges,  etc.,  overhead  roadways. 
etc.,  over  railroad  tracks,"  see  §  3337-18. 

To  require  trains  to  equip  with  automatic 
couplers  and  air  brakes,  see  §  3305-23  et   seq. 


To  enforce  act  limiting  number  of  hours  of 
service  on  railroad,  see  §  3305-14  et  seq. 

To  compel  introduction  of  fire  extinguishers 
on  passenger  trains,  see  S  3354—2  et  seq. 

Appliances  for  blocking  of  railway  frogs, 
etc.,  to  be  approved  by,  see  §  3365-18. 

Report  of  number  and  class  of  cars 
equipped  with  automatic  couplers  and  air 
brake-,  etc.,  to,  every  six  months  until  .Ian- 
nary  1,  1900;  commisioner  to  furnish  blanka 
for  same,  see   S  3305-23a. 

Duty  as  to  construction  of  over-head  wires 
over  line  of  steam  railroad,  see  §§  3305-28, 
3365-20. 

Employment  of  counsel,  see  §  202. 


§  246.  HIS  BOND,  AND  OATH  OF  OFFICE.—  The  commissioner,  before  entering 
upon  the  discharge  of  his  duties,  shall  give  bond  to  the  state  in  the  sum  of  five  thou- 
sand dollars,  with  two  or  more  sureties,  to  the  acceptance  of  the  governor,  conditioned 
for  the  faithful  performance  of  his  duties;  which  bond,  with  his  oath  of  office  and  the 
approval  of  the  governor  indorsed  thereon,  shall  be  deposited  with  the  secretary  of 
state.      (April  5,  1867,  64  v.   Ill,  §  2;  S.  &  S.  76.) 

§  247.  DUTY  TO  EXAMINE  TRACKS,  BRIDGES,  ETC.,  SUPPOSED  TO  BE 
DANGEROUS;  SHALL  PRESCRIBE  RATE  OF  SPEED  FOR  PASSING  OVER  SAME, 
OR  WHOLLY  STOP  THE  TRAINS  FROM  PASSING  OVER  SAME;  PUNISHMENT 
OF  OFFICERS  AND  OTHERS  FOR  DISOBEYING  HIS  ORDERS,  AND  PENALTY 
AGAINST  COMPANY. —  When  the  commissioner  has  reasonable  grounds  to  believe, 
either  on  complaint  or  otherwise,  that  any  of  the  tracks,  bridges,  or  other  struc- 
tures of  any  railroad  in  this  state  are  in  a  condition  which  renders  them,  or  any  of 
them,  dangerous,  or  unfit  for  the  transportation  of  passengers,  he  shall  forthwith 
inspect  and  examine  the  same;  and  if,  on  such  examination  by  himself  or  his  agent, 
he  is  of  opinion  that  any  of  such  tracks,  bridges,  or  other  structures  are  unfit  for  the 
transportation  or  passengers  with  safety,  he  shall  immediately  give  to  the  superin- 
tendent, or  other  executive  officer  of  the  company  operating  such  road,  notice  of  the 
condition  thereof,  and  of  the  repairs  or  reconstruction  necessary  to  place  the  same  in 
a  safe  condition;  and  he  may  also  prescribe  the  rate  of  speed  for  trains  passing  over 
such  dangerous  or  defective  track,  bridge,  or  other  structure,  until  the  repairs  or 
reconstructions  required  are  made,  and  the  time  within  which  such  repairs  or  recon- 
struction must  be  made;  or  if.  in  his  opinion,  it  is  needful  and  proper,  he  may  forbid 
the  running  of  passenger  trains  over  such  defective  track,  bridge,  or  other  structure: 


22 


Private  Corporations  in  Ohio. 


Commissioner  of  Railroads  and  Telegraphs,   §§  247a,  247b. 

and  if  a  superintendent  or  other  executive  officer  receiving  such  notice  and  order 
neglects  for  two  days  after  receiving  the  same  to  direct  the  proper  subordinate  officers 
to  run  the  passenger  trains  over  such  defective  track,  bridge,  or  other  structure,  at  a 
speed  not  greater  than  that  so  prescribed,  or  if  the  running  of  passenger  trains  is  so 
forbidden,  then  to  stop  running  passenger  trains  over  the  same;  or  if  any  engineer, 
conductor  or  other  employe  knowingly  disobeys  such  order,  every  superintendent, 
officer,  engineer,  conductor,  or  employe,  so  offending,  shall  be  fined  in  any  sum  not 
exceeding  five  hundred  dollars,  or  imprisoned  in  the  jail  for  any  period  not  exceeding 
one  year,  or  both,  at  the  discretion  of  the  court;  and  the  company  operating  such 
road,  if  it  neglects  or  without  good  cause  fails  to  make  the  repairs  or  reconstruction 
prescribed  by  the  commissioner  within  the  time  by  him  limited,  shall  for  each  day 
that  such  repair  or  reconstruction  is  delayed  beyond  the  time  prescribed,  forfeit  and 
pay  to  the  state  the  sum  of  one  hundred  dollars.  (April  5,  1867,  64  v.  Ill,  §  6; 
S.  &  S.  77.) 

See  §  1  of  ''  an  act  for  the  protection  of  railroad  employees,"  §  3365-18. 

§  247a.  GATES,  BELLS,  DEVICES  OR  FLAGMEN  AT  CROSSINGS.—  When,  in 
the  opinion  of  the  commissioner  of  railroads,  the  public  safety  requires  that  a  gate 
or  gates,  automatic  alarm  bell,  or  other  mechanical  device  be  erected  and  maintained 
at  any  place  where  a  public  road  or  street  is  crossed  at  the  same  level  by  any  railroad, 
and  which  crossing  has  been  declared  by  said  commissioner  to  be  a  dangerous  one,  or 
that  a  flagman  be  stationed  and  maintained  at  such  dangerous  crossing,  he  shall  give 
the  superintendent,  manager  or  other  officer  in  charge  of  such  railroad,  a  written 
notice  that  the  same  is  required,  and  such  company,  person  or  corporation  owning  or 
operating  such  railroad  shall  erect  or  station  the  same  within  such  time  thereafter 
as  said  commissioner  shall  prescribe.  Any  company,  person  or  corporation  neglect- 
ing or  refusing  to  erect  or  maintain  such  gate  or  gates,  automatic  alarm  bell,  or  other 
mechanical  device,  or  to  maintain  such  flagmen,  when  so  required  as  aforesaid,  shall 
forfeit  and  pay  to  the  state,  for  every  such  neglect  or  refusal,  the  sum  of  one  hundred 
dollars,  and  the  further  sum  of  ten  dollars  for  every  day  while  such  neglect  or 
refusal  shall  continue.     (April   15,   1889,  86  v.  367;  May  19,  1894,  91  v.  353.) 


Power  of  city  to  order  gates  and  watch- 
men. 

In  the  absence  of  special  statute  a  city  has 
no  power,  by  ordinance,  to  compel  a  railroad 
company  to  maintain,  at  a  street  crossing 
within  the  corporate  limits,  a  watchman  to 
protect  traveler-  along  a  highway. —  Ravenna 
v.*  Pennsylvania  Co.,  45  Oh." St.  118   (1887). 

Duty  of  company  to  maintain  gates. 

Where  crossings  are  dangerous  it  is  the 
duty  of  the  company  to  maintain  pates  and 
watchmen. —  Railway  Co.  v.  Schneider,  45 
Oh.  St.  678  (1888);  Lake  Shore,  etc.,  Ry.  Co. 
v.  Gaffney,  9  0.  C.  C.  32  (1894)  ;  s.  c,  6  C.  D. 


94;  New  York,  etc.,  Ry.  Co.  v.  Swartout,  14 
0.  C.  C.  582  (1895);  s.  c.  (i  C.  D.  768;  Rail- 
war  Co.  v.  Reiss,  13  0.  C.  C.  405  (1889);  s. 
c,  7  C.  D.  450. 

Duty  of  gatemen. 

See  Railway  Co.  v.  Schneider.  45  Oh.  St. 
67S  (1888);  Toledo,  etc.,  Ry.  Co.  v.  Fuller,  17 
O.  0.  C.  562  (1894);  s.  c.  9  C.  IX  123;  Lake 
Shore,  etc..  Ry.  Co.  v.  Geiger,  8  0.  C.  C.  41 
(1893);  s.  c,  8  C.  D.  307. 

Defective  gates. 

See  Baltimore,  etc..  R.  R.  Co.  v.  Anderson, 
37  W.   L.  B.  54   (1S96). 


§  247b.  REGULATIONS  AS  TO  SUCH  GATES,  BELLS.  DEVICES  OR  FLAG- 
MEN.—  All  gates,  bells  or  devices,  which  by  the  provisions  of  this  act  are  under  the 
direction  of  the  commissioner  of  railroads,  shall  be  built  in  such  a  manner,  and  within 
such  a  time,  and  of  such  material  as  shall  be  approved  by  the  commissioner  of  rail- 
roads, and  shall  be  located  on  the  highway  or  street,  on  one  or  both  sides  of  the  rail- 
road track  or  tracks  as  the  commissioner  may  deem  the  public  safety  to  require,  and 
shall  be  so  constructed  as,  when  closed,  to  obstruct  and  prevent  any  passage  across 
such  railroad  or  railroads  from  the  side  on  which  the  gate  may  be  located;  or  said 
bell  shall  be  made  to  ring  before  the  approach  of  each  and  every  train  of  cars  or  of 
a  locomotive  within  three  hundred  feet  of  such  crossing,  or  more,  according  to  the 
ppeed  of  the  train,  and  continue  to  ring  until  the  train  of  cars  or  the  locomotive  shall 
have  reached  the  crossing.     There  shall  be  a  person  in  charge  of  every  such  gate  and 


Miscellaneous  Provisions.  23 

commissioner  of  Railroads  and  Telegraphs,  SS  247c  247d. 


it  shall  be  his  duty  to  close  the  same  at  the  approach  of  every  train  of  cars,  or  of  a 
locomotive,  and  to  keep  it  open  at  all  other  times.  In  case  an  automatic  alarm-bell, 
or  other  mechanical  device  shall  be  required  at  any  such  crossing,  it  shall  be  the  duty 
of  the  railroad  company  at  all  times  to  keep  such  bell  or  device  in  good  working 
order.  For  every  neglect  of  such  duty  such  person  or  railroad  company,  upon  convic- 
tion thereof,  shall  pay  the  sum  of  twenty-five  dollars.  When  more  than  one  railroad 
crosses  a  public  highway  or  street  at  such  dangerous  crossing,  the  expense  incurred 
in  the  erection  and  maintenance  of  gates,  bells  or  device  provided  for  in  this  section, 
and  of  the  necessary  gate-keepers,  or  of  a  flagman,  shall  be  shared  equally  by  the  rail- 
road companies  alongside  whose  tracks  the  gates,  bells  or  device  shall  be  located. 
Provided  that  an  automatic  alarm-bell,  or  other  mechanical  device  as  provided  for  in 
this  and  the  preceding  section,  shall  not  be  erected  within  the  limits  of  any  city  of 
the  first  class  or  of  any  city  of  the  first,  second,  third,  and  fourth  grades  of  the  sec- 
ond class,  upon  the  order  of  the  commissioner  of  railroads  and  telegraphs;  but  nothing 
herein  contained  shall  prohibit  any  railroad  company  from  using  such  automatic 
alarm-bell  or  other  mechanical  device,  if  it  desire,  at  any  public  railroad  crossing 
not  declared  dangerous  by  said  commissioner  of  railroads  and  telegraphs;  and  pro- 
vided further,  that  where  a  gate  or  gates,  has  or  have  been  erected,  and  is  or  are 
maintained  by  the  railroad  company,  or  where  a  flagman  has  been  stationed  and  is 
maintained  by  the  railroad  company,  shall  not  be  abandoned,  and  any  automatic 
alarm-bell  or  other  mechanical  devices  be  substituted  therefor.  (April  15,  1889, 
86  v.  367;  May  19,  1894,  91  v.  353.) 

See  Lake  Shore,  etc.,  Ry.  Co.  v.  Cleveland,  etc.,  Ry.  Co.,  5  N.  P.  83   (1S9S). 

8  247c.  GATES  OR  FLAGMEN  AT  DANGEROUS  CROSSINGS  IN  HAMILTON; 
DUTY  OF  PROSECUTING  ATTORNEY.—  When,  in  the  opinion  of  the  city  council 
of  any  city  of  the  third  grade  b  of  the  second  class,  the  public  safety  requires  that  a 
gate  or  gates  be  erected  and  maintained  at  any  place  where  a  public  road  or  street  i3 
crossed  in  said  city  at  the  same  level  by  any  railroad,  and  which  crossing  has  been 
declared  by  said  council  to  be  a  dangerous  one,  or  that  a  flagman  be  stationed  and 
maintained  at  such  dangerous  crossing,  council  shall  give  the  superintendent,  man- 
ager or  other  officer  in  charge  of  such  railroad,  a  written  notice  that  the  same  is 
required,  and  such  company,  person  or  corporation  owning  or  operating  such  railroad 
shall  erect  or  station  the  same  within  such  time  thereafter  as  council  may  prescribe. 
After  said  notice  has  been  given  to  the  superintendent,  manager  or  other  officer  in 
charge  of  such  railroad  that  the  same  is  required,  such  railroad  company  and  said 
council  shall  agree  as  to  whether  said  crossing  so  declared  to  be  dangerous  shall  be 
protected  by  a  gate  or  gates,  or  a  flagman;  and  if  they  fail  to  come  to  any  agreement 
within  ten  days,  then  the  question  shall  be  submitted  to  arbitrators,  the  council 
selecting  one  person,  the  railroad  company  one;  the  two  thus  selected  shall  choose 
a  third.  The  arbitrators  thus  selected  shall  decide  whether  said  dangerous  crossing 
shall  be  protected  by  a  gate  or  gates,  or  a  flagman,  and  their  decision  shall  be  final. 
Any  company,  person  or  corporation  neglecting  or  refusing  to  erect  or  maintain  such 
gate  or  gates,  or  to  maintain  such  flagman  when  so  required  as  afoi-esaid,  shall  forfeit 
and  pay  to  the  state  for  every  such  neglect  or  refusal  the  sum  of  one  hundred  dollars, 
and  the  further  sum  of  ten  dollars  for  every  day  while  such  neglect  or  refusal  shall 
continue.  Provided  further,  that  nothing  herein  contained  shall  be  construed  as  con- 
flicting with  section  247a.     (May  19,  1894,  91  v.  350.) 

§  2.  It  is  hereby  made  the  duty  of  the  prosecuting  attorney  of  the  proper  county, 
upon  being  advised  of  the  violation  of  this  act,  to  immediately  commence  civil  action 
against  said  company,  person  or  corporation  in  the  name  of  the  state  for  the  recovery 
of  the  forfeitures  and  penalties  imposed  in  this  act.      (May  19.  1894,  91  v.  350.) 

§  247d.  HOW  RAILROADS  CAN  CROSS  EACH  OTHER  OR  A  STREAM  WITH- 
OUT STOPPING;  DISCONTINUANCE.— When  in  case  two  or  more  railroads  or  a 
railroad  and  an  electric  railroad  crossing  each  other  at  a  common,  grade,  or  any  rail- 


24  Private  Corporations  in  Ohio. 


Commissioner  of  Railroads  and  Telegraphs,   §S  247e-247f. 

road  crossing  a  stream  by  a  swing  or  draw-bridge  shall,  by  a  system  of  interlocking, 
or  by  other  works  or  fixtures,  to  be  erected  by  them,  or  either  of  them,  render  it  safe 
for  engines  or  trains  to  pass  over  such  crossing,  or  bridge,  without  stopping,  and 
such  system  of  interlocking  works  or  fixtures  shall  first  be  approved  by  the  com- 
missioner of  railroads  and  telegraphs,  and  a  plan  of  such  interlocking  works  or  fix- 
tures, for  such  crossing  or  bridge,  designating  the  plan  of  crossing  shall  have  been 
filed  with  such  commissioner,  then  and  in  that  case,  it  is  hereby  made  lawful  for  the 
engines  and  trains  of  such  railroad  or  railroads,  to  pass  over  such  crossing  or  bridge 
without  stopping,  any  law,  or  the  provisions  of  any  law,  now  in  force  to  the  contrary 
notwithstanding,  and  all  such  other  provisions  of  law  contrary  thereto  are  hereby 
declared  not  to  be  applicable  in  such  case;  provided,  that  the  said  commissioner  shall 
have  and  is  hereby  given  power  in  case  such  interlocking  system  or  other  fixtures, 
shall,  in  his  judgment,  prove  to  be  unsafe  or  impracticable,  to  order  the  same  discon- 
tinued, opportunity  first  being  given  the  person  or  company  operating  the  same  to  be 
heard  before  said  commissioner  as  to  the  propriety  of  such  order.  In  case  such 
order  is  made  and  enforced,  the  existing  statutes  relative  to  stopping  at  crossings 
shall  apply  until  such  time  as  a  device  approved  by  said  commissioner  is  substituted. 
(April  27,  1896,  92  v.  315.) 

See  §  3333  et  seq. 

§  247e.     PETITION  FOR  SAFETY  DEVICES  AND  PROCEDURE   THEREON.— 

In  case  where  the  tracks  of  two  or  more  railroads,  or  the  tracks  of  a  railroad  and  an 
electric  railroad  cross  each  other  at  a  common  grade  in  this  state,  any  company  own- 
ing any  one  of  such  tracks,  whose  managers  may  desire  to  unite  with  others  in  pro- 
tecting such  crossing  with  interlocking,  or  other  safety  devices,  and  shall  be  unable 
to  agree  with  such  others  on  the  matter,  may  file  with  the  said  commissioner  a  peti- 
tion stating  the  facts  of  the  situation  and  asking  said  commissioner  to  order  such 
crossing  to  be  protected  by  interlocking,  or  other  safety  devices;  said  petition  shall  be 
accompanied  by  a  plan  showing  the  location  of  all  tracks  and  switches,  and  upon  the 
filing  thereof  notice  shall  be  given  to  each  company  or  persons  owning  or  operating 
any  track  involved  in  such  crossing,  and  the  said  commissioner  shall  thereupon  view 
the  site  of  such  crossing  and  shall,  as  soon  as  practicable,  appoint  a  time  and  place  for 
the  hearing  of  such  petition.  At  the  time  and  place  named  for  hearing,  unless  the 
hearing  is  for  good  cause  continued,  said  commissioner  shall  proceed  to  try  the  ques- 
tion of  whether  or  not  the  crossing  shall  be  protected  by  interlocking  or  other  safety 
devices,  and  shall  give  all  companies  and  parties  interested  an  opportunity  to  be  fully 
heard;  and  after  such  hearing  said  commissioner  shall  enter  an  order  upon  a  record- 
book,  or  docket,  to  be  kept  for  the  purpose,  granting  or  denying  such  petition;  and 
in'  case  the  same  is  granted,  such  order  shall  prescribe  the  interlocking  or  other 
safety  devices  for  such  crossing  and  all  other  matters  which  may  be  deemed  proper  to 
the  efficient  protection  of  such  crossing,  and  in  such  order  the  commissioner  shall 
designate  the  proportion  of  the  cost  of  the  construction  of  such  plant,  and  the  expense 
of  maintaining  and  operating  the  same,  which  each"  of  the  companies  or  persons  con- 
cerned shall  pay,  and  shall  also  fix  the  time  within  which  such  appliance  shall  be  put 
in,  such  time,  however,  not  to  exceed  ninety  days  from  the  making  of  such  order. 
(April  27,   1896,  92  v.  315.) 

§  247f .  COMPULSORY  INTERLOCKING.—  In  case,  however,  one  railroad  com- 
pany or  an  electric  railroad  company  shall  hereafter  seek  to  cross  at  grade  with  its 
track,  or  tracks,  the  track,  or  tracks,  of  another  railroad,  the  railroad  company,  or 
the  electric  railroad  company,  seeking  to  cross  at  grade  shall  be  compelled  to  provide 
interlocking  or  other  safety  devices  put  in  to  the.  satisfaction  of  the  said  commissioner 
of  railroads  to  protect  such  crossing,  and  to  pay  all  costs  of  such  appliance,  together 
with  the  expense  of  putting  them  in.  The  future  maintenance  and  operation  thereof 
shall  be   equally   apportioned  between  the  two  or  more  roads   by  the  said  commis- 


Miscellaneous  Provisions.  25 


Commissioner  of  Railroads  and  Telegraphs,  §§  247g-250-l. 

sioner  of  railroads  and  telegraphs;  provided  this  act  shall  not  apply  to  crossings  of 
side  tracks  only.     (April  27,   1896,  92  v.  315;  April  25,  1898,  93  v.  334.) 

§  247g.  CROSSING  WITHOUT  STOPPING.— Whenever  interlocking  or  other 
safety  devices  are  constructed  and  maintained  in  compliance  with  sections  2  or  3 
(§§  247e,  247f)  of  this  act  then  and  in  that  case  it  shall  be  lawful  for  the  engines 
and  trains  of  such  railroad  or  railroads  and  the  cars  of  such  electric  railroad  to  pass 
over  said  crossing  without  stopping,  any  law  or  the  provisions  of  any  law,  now  in 
force  to  the  contrary  notwithstanding;  and  all  such  other  provisions  of  law  contrary 
thereto  are  hereby  declared  not  to  be  applicable  in  such  case.  (April  27,  1896,  92  v. 
315.) 

§  247h.  PENALTY  FOR  NON-COMPLIANCE  WITH  ORDER.— Any  person, 
company  or  corporation  refusing  or  neglecting  to  comply  with  any  order  made  by  the 
said  commissioner  of  railroads  and  telegraphs  in  pursuance  of  this  act  shall  forfeit 
and  pay  a  penalty  of  five  hundred  dollars  per  week  for  each  wjek  of  such  refusal  and 
neglect,  the  same  to  be  recovered  in  an  action  of  debt  in  the  name  of  the  state  of 
Ohio,  and  to  be  paid,  when  collected,  unto  the  county  treasurer  of  any  county  in  which 
such  suit  may  be  tried.     (April  27,   1896,  92  v.  315.) 

§  248.  SHALL  EXAMINE  INTO  ALLEGED  VIOLATIONS  OF  LAW  BY  RAIL- 
ROADS, ITS  OFFICERS,  AGENTS  OR  EMPLOYES.—  When  the  commissioner,  upon 
complaint,  or  otherwise,  has  reason  to  believe  that  any  railroad  company,  or  any 
officer,  agent,  or  employe  of  any  railroad  company,  has  violated,  or  is  violating,  any 
of  the  laws  of  the  state,  he  shall  examine  into  the  matter.  (April  15,  1867,  64  v.  111,. 
§  5;  S.  &  S.  76.) 

§  248a.  DUTY  OF  COMMISSIONERS  OF  RAILROADS  AS  TO  DIFFERENCE 
BETWEEN  CITIZENS  AND  COMMON  CARRIERS.— When  the  commissioner,  on 
complaint  or  otherwise,  has  reason  to  believe  that  differences  have  arisen  between 
citizens  of  the  state  and  any  corporation  operating  as  a  common  carrier,  within  the 
state,  he  shall  examine  into  the  matter,  and  shall  report  his  findings  to  the  general 
assembly,  if  in  session,  otherwise  to  the  governor.     (May  18,   1886,  83  v.  206.) 

§  249.  OFFICE  IN  THE  STATE  HOUSE;  MAY  APPOINT  A  CLERK;  POW- 
ERS AND  DUTIES  OF  THE  CLERK.—  The  office  of  the  commissioner  shall  be  in  the 
state  house;  and  he  may  appoint  a  clerk,  which  appointment  must  be  evidenced  by 
the  certificate  of  the  commissioner:  the  clerk  shall  discharge  such  duties  as  are 
assigned  to  him  by  the  commissioner,  and  he  may  issue  subpoenas  for  witnesses  and 
administer  oaths  in  all  matters  pertaining  to  the  duties  of  the  office  of  commissioner. 
(April  8,  1871,  68  v.  55,  §  3;  S.  &  S.  80.) 

§  250.  COMMISSIONER  MAY  PASS  FREE  OVER  ALL  RAILROADS.— The 
commissioner  shall  have  the  right  of  passing,  in  the  performance  of  his  duties,  on  all 
the  railroads  within  the  state,  and  upon  all  trains,  and  any  part  thereof,  free  of 
charge.     (April  5,   1867,  64  v.  Ill,  §  4;  S.  &  S.  76.) 

§  250-1.  ADDITIONAL  STATEMENTS,  ETC.,  REQUIRED  OF  RAILROAD  AND 
TELEGRAPH  COMPANIES. —  Every  railroad  company  and  telegraph  company 
incorporated  or  doing  business  in  this  state,  or  which  shall  hereafter  become  incor- 
porated and  do  business  under  any  general  law  in  this  state,  shall,  in  addition  to  the 
reports  already  required  by  law,  on  or  before  the  first  day  of  September  in  each  year, 
make  and  transmit  to  the  commissioner  of  railroads  and  telegraphs  a  full  and  true 
statement  under  oath  of  the  proper  officers  of  said  corporation,  of  the  affairs  of  the 
said  corporation  as  the  same  existed  on  the  thirtieth  day  of  the  preceding  June.  Such 
statement  shall  be  in  the  form  and  manner  as  may  be  prescribed  by  the  said  commis- 
sioner of  railroads  and  telegraphs.  The  commissioner  shall  prepare  and  furnish 
each  railroad  company,  or  to  each  organization  having  one  or  more  railroads  in  charge, 


26  Private  Corporations  in  Ohio. 


Commissioner  of  Railroads  and  Telegraphs,   §§  250-2-251. 


and  to  each  telegraph  company  or  general  manager  thereof  in  the  state,  blank  forms 
for  making  the  report  required  herein,  and  the  paid  commissioner  may  at  any  time 
make  and  propound  to  such  railroad  companies  any  additional  interrogatories  which 
to  him  may  seem  necessary.  When  any  report  is  defective,  or  appears  to  be  erroneous, 
the  said  commissioner  shall  notify  the  corporation  to  amend  the  same  in  the  matter 
or  matters  named  and  make  return  of  the  same  within  fifteen  days.  Every  railroad 
corporation  shall,  within  a  reasonable  time  after  their  road  shall  be  constructed,  and 
at  any  other  time  when  required  by  said  commissioner,  cause  to  be  made  a  map  and 
profile  thereof  and  file  the  same  with  the  commissioner;  every  such  map  shall  be 
drawn  on  a  scale  and  certified  and  signed  by  the  president  or  engineer  of  such  cor- 
poration. Every  railroad  company  and  telegraph  company  shall  make  out  under  oath 
and  file  with  said  commissioner  of  railroads  and  telegraphs,  on  or  before  the  first  day 
of  September  of  each  year,  a  true  list  of  the  names  of  each  and  every  stockholder, 
giving  the  number  of  shares  owned  by  such  stockholder,  together  with  his  post-office 
address.     (April  19,   1894,  91  v.   154.) 

§  250-2.  EXPENSE  TO  BE  BORNE  BY  RAILROADS.—  For  the  purpose  of 
maintaining  the  department  of  commissioner  of  railroads  and  telegraphs,  and 
expenses  incident  to  the  same,  and  for  the  purpose  of  exercising  police  duties  and 
supervision  of  railroads  and  telegraphs  of  the  state  in  the  interest  of  public  safety, 
the  annual  total  expenses  of  said  commissioner  of  railroads  and  telegraphs,  includ- 
ing the  salary  of  said  commissioner,  clerk,  inspector,  engineer,  experts  and  additional 
clerical  force,  and  other  expenses  incident  to  said  office  and  officer,  not  exceeding  the 
sum  of  $15,000,  shall  be  borne  by  the  several  corporations  owning  or  operating  rail- 
roads within  this  state,  according  to  their  means,  to  be  apportioned  by  the  state 
board  of  equalization,  who  shall,  on  or  before  the  first  day  in  each  year,  assess  upon 
each  of  said  corporations  its  just  proportion  of  said  expenses  in  proportion  to  its  gross 
earnings  from  operations  for  the  next  year  preceding  that  in  which  the  assessment 
is  made.  Such  assessment  so  made  by  the  state  board  of  equalization  shall,  forth- 
with, be  certified  to  the  several  railroad  companies  by  the  auditor  of  state,  and  on  or 
before  the  next  following  first  day  of  August  in  each  year  the  said  railroad  companies 
shall  pay  the  amount  of  the  assessment  so  apportioned  to  them  by  the  auditor  of 
state,  who  shall  cover  the  same  into  the  state  treasury  as  a  special  fund  for  the  main- 
tenance of  the  said  office  of  commissioner  of  railroads  and  telegraphs,  and  expenses 
incident  thereto.     (April  19,  1894,  91   v.    154.) 

§  250-3.  PENALTY. —  That  any  railroad  company  or  telegraph  company  violat- 
ing any  of  the  provisions  of  this  act,  shall  forfeit  and  pay  to  the  state  of  Ohio  the 
sum  of  $1,000,  and  $25  per  diem  for  every  day  that  said  company  refuses,  neglects 
or  fails  to  comply  with  the  requirements  of  this  act,  which  forfeiture  and  fine  shall 
not  release  said  company  from  the  assessments  herein  provided.  (April  19,  1894, 
91  v.  154.) 

§  251.  ANNUAL  REPORTS  OE  RAILROAD  COMPANIES;  WHEN  TO  BE 
MADE;  WHAT  TO  CONTAIN;  CASUALTIES  AND  OTHER  INFORMATION 
REQUIRED  BY  THE  COMMISSIONER;  REASON  FOR  FAILURE  TO  REPORT 
ANY  ITEM,  TO  BE  GIVEN. —  The  president,  or  other  officer  in  charge  of  any  rail- 
road, situate  in  whole  or  in  part  within  the  state,  shall,  on  or  before  the  first  day  of 
September,  in  each  year,  make  and  file  in  the  office  of  the  commissioner  a  report,  veri- 
fied by  the  oath  of  such  officer,  for  the  year  ending  on  the  thirtieth  day  of  June  pre- 
ceding, which  report  shall  state: 

AS  TO   STOCK  AND  DEBT. 

1.  The  amount  of  capital  stock  subscribed; 

2.  The  amount  of  capital  stock  paid  in; 

3.  The  amount  of  funded  debt; 

4.  The  amount  of  floating  debt; 

Total  amount  of  paid  in  stock  and  debt: 


Miscellaneous  Provisions.  27 

Commissioner   of  Railroads   and   Telegraphs,   §  251. 


COST  OF  ROAD  AND  EQUIPMENT. 

5.  Cost  of  right  of  way; 

6.  Cost  of  construction; 

7.  Amount  of  all  other  items  embraced  in  cost  of  road; 

8.  Cost   of  equipment; 

Total  cost  of  road  and  equipment: 

CHARACTERISTICS  OF  THE   ROAD,  ETC. 

9.  Length  of  main  line,   single  track,  laid  with  rail; 

10.  Length  of  branches,  single  track,  laid  with  rail; 

11.  Length  of  double  track,  main  line  and  branches; 

12.  Aggregate  length  of  sidings  and  other  tracks,  not  enumerated  above; 
Total  length  of  rail  computed  as  single  track: 

13.  The  maximum  grade,  with  its  length  in  main  road,  and  also  in  branches; 

14.  The  shortest  radius  of  curvature,  with  length  of  curve  in  main  road,  and  also  in 

branches; 

15.  Total   degrees  of  curvature  in  main  road,  and  also  in  branches; 

16.  Total  length  of  straight  line  in  main  road,  and  also  in  branches; 

17.  Number  of  wood  bridges,  and  aggregate  length; 

18.  Number  of  iron  bridges,  and  aggregate  length; 

19.  Number  of  stone  bridges,   and  aggregate  length; 

20.  The  greatest  age  of  wood  bridges; 

21.  Number  of  wood  trestles,  and  aggregate  length; 

22.  The  greatest  age  of  wood  trestle; 

23.  Number  and  kind  of  tunnels,  and  aggregate  length; 

24.  Length    of    fence   required   to    inclose    road,    both    sides,    and    reasons   why   not 

completed; 

25.  Number  of  engines; 

26.  Number  of  express  and  baggage  cars; 

27.  Number  of  passenger  cars; 

28.  Number  of  freight  cars; 

29.  Number  of  other  cars; 

30.  The  highest  rate  of  speed  allowed  by  express  passenger  trains; 

31.  The  highest  rate  of  speed  allowed  by  mail  and  accommodation  trains; 

32.  The  highest  rate  of  speed  allowed  by  freight  trains; 

33.  The  rate  of  fare  for  passengers  charged  for  the  respective  classes  per  mile; 

34.  The  highest  rate  per  ton  per  mile  charged  for  the  transportation  of  the  various 

classes  of  freight,  through  and  local. 

DOINGS  OF  THE  YEAR. 

35.  Length  of  new  rail  laid; 

36.  Length  of  re-rolled  rail  laid; 

37.  Number  and  kind  of  bridges  built,  and  length; 

38.  Number  of  miles  run  by  passengir  trains; 

39.  Number  of  miles  run  by  freight  trains; 

40.  Number    and    kind    of    farm    animals    killed,    and    amount    of    damages    paid 

therefor; 

41.  Number  of  passengers  (all  classes)  carried; 

42.  Number  of  passengers  carried  one  mile; 

43.  Number  of  tons  of  local  freight  carried; 

44.  Number  of  tons  of  through  freight  carried; 

45.  Total  movement  of  freight,  or  number  of  tons  carried  one  mile: 

EARNINGS   FOR   THE   YEAR. 

46.  From  transportation  of  passengers; 

47.  From  transportation  of  freight; 


28  Private  Corporations  in  Ohio. 


Commissioner  of   Railroads  and  Telegraphs,   §§   252-255. 


48.  From  mail  and  express  service; 

49.  From  all  other  sources; 
Total  earnings  for  the  year: 

EXPENDITURES   FOR   THE  YEAR. 

50.  For  construction  and  new  equipment; 

51.  For   maintenance  of  way  and  structures; 

52.  For  maintaining  and  operating  motive  power  and  cars; 

53.  For  transportation  expenses,  including  those  of  stations  and  trains; 

54.  For  interest  on  bonds  and  other  indebtedness; 

55.  For  dividends,  stating  rate  per  cent.; 

56.  All  other  expenditures  for  management  of  road,  and  for  other  purposes; 
Total  expenditures  during  the  year: 

57.  All  casualties  resulting  in  injuries  to  persons,  giving  the  extent  and  causes  of 

each,  and  such  other  and  further  information  as  may  be  required  by  the  com- 
missioner; but  if  any  company  is  unable  to  furnish  such  required  informa- 
tion, the  reasons  of  such  inability  shall  be  given.  (May  13,  1868,  65  v.  183, 
§  9;  S.  &  S.  78.) 


panies  to  pay  a  fee  of  one  dollar  per  mile  is 
unconstitutional,  see  Railway  v.  State.  49  Oh. 
St.  189   (1892). 


See  Cleveland,  etc.,   Ry.    Co.    v.   Ullam,   20 
0.  C.  C.  512   (1898). 

The  act  of  SO  v.  151  requiring  railroad  com- 

§  252.  THE  COMMISSIONER  SHALL  FURNISH  TO  RAILROAD  AND  TELE- 
GRAPH COMPANIES  BLANKS  FOR  REPORTS.— The  commissioner  shall  prepare 
and  furnish  to  each  railroad  company,  or  to  each  organization  having  one  or  more  rail- 
roads in  charge,  and  to  each  telegraph  company  or  chief  manager  thereof  in  the  state, 
or  having  lines  in  the  state,  blank  forms  for  making  the  reports  required  by  this 
chapter,  which  blanks  may  be  so  prepared  by  the  commissioner  as  to  obtain  the 
information  required  by  the  foregoing  inquiries  more  in  detail,  or  omit  such  of  a 
historical  or  permanent  character  as  may  have  been  given  in  previous  reports.  (May 
13,  1868,  65  v.   183,  §  9.) 

§  253.  PENALTY  AGAINST  OFFICER  OF  RAILROAD  FOR  FAILURE  TO 
REPORT.— A  president  or  other  officer  in  charge  of  a  railroad,  whether  doing  busi- 
ness or  in  course  of  construction,  who  refuses  or  neglects  to  make  and  furnish  the 
report  at  the  time  prescribed  in  section  two  hundred  and  fifty-one,  or  any  report 
required  by  the  commissioner,  shall  forfeit  and  pay  a  sum  not  exceeding  one  thousand 
dollars;  and  he  shall  be  subject  to  a  like  penalty  for  every  period  of  thirty  days 
thereafter  he  so  refuses  or  neglects  to  furnish  the  same.  (April  25,  1873,  70  v. 
158,   §   10.) 

§  254.  ANNUAL  REPORT  BY  TELEGRAPH  COMPANY;  WHEN  TO  BE  MADE 
AND  WHAT  TO  CONTAIN.— The  president  or  chief  officsr  of  every  telegraph  line 
or  company,  whether  the  line  is  doing  business  or  is  in  process  of  construction,  shall 
make  a  report  of  the  business  of  such  line  or  company  to  the  commissioner,  in  such 
form  as  he  directs,  on  or  before  the  first  day  of  September,  in  each  year,  for  the 
year  ending  on  the  preceding  first  day  of  June,  which  report  must  be  verified  by 
the  oath  of  such  president  or  officer  in  charge;  and  for  neglect  or  refusal  to  make 
and  furnish  such  report  at  the  time  herein  namsd,  the  company  owning  such  line 
shall  forfeit  and  pay  any  sum  not  exceeding  five  hundred  dollars;  and  the  company 
is  subject  to  a  like  penalty  for  every  period  of  thirty  days  thereafter  such  president 
or  chief  officer  so  refuses  or  neglects  to  furnish  the  same.  (April  25,  1873,  70  v. 
158,  §  11.) 

§  255.  DEFECTIVE  OR  ERRONEOUS  REPORTS  SHALL  BE  AMENDED 
IN  FIFTEEN  DAYS;  RETURNS  MUST  CONFORM  TO  FORMS  PRESCRIBED; 
REASON  MUST  BE  GIVEN  FOR  ANY  FAILURE  IN  THIS  RESPECT.— When 
the   returns  of   any   corporation  required  to   report  to  the   commissioner  of  railroads 


Miscellaneous  Provisions.  29 

Commissioner  of   Railroads  and  Telegraphs,    SS  256-260. 

and  telegraphs  are  incomplete,  defective,  or  probably  erroneous,  the  commissioner 
shall  notify  such  corporation  thereof,  and  it  shall  thereupon  amend  the  return  in  the 
matter  or  matters  named,  and  make  return  of  such  amendment  within  fifteen  days; 
and  all  returns  shall  be  in  strict  accordance  with  the  forms  prescribed  by  the  commis- 
sioner; but  if  any  corporation  finds  it  impracticable  to  return  all  the  items  in  detail, 
as  required,  it  shall  state  the  reason  why  such  details  can  not  be  given;  but  the  fact 
that  it  does  not  keep  its  accounts  in  such  manner  as  to  enable  it  to  make  such  returns 
shall  not  be  considered  or  taken  as  a  valid  excuse;  and  if  the  form  for  the  returns  and 
leport  furnished  by  the  commissioner  makes  necessary  any  change  or  alteration  in 
the  ordinary  method  or  form  of  keeping  the  accounts  of  such  corporation,  he  shall 
give  to  such  corporation  at  least  thirty  days'  notice  thereof  prior  to  the  commencement 
of  the  year  for  which  the  changes  and  additions  are  necessary  in  order  to  make  the 
full  returns  required.      (May  5,  1873,  70  v.  276,  §  1.) 

§  256.  COMPANIES  OPERATING  RAILROADS  SHALL  FURNISH  COPIES 
OF  LEASES  AND  CONTRACTS  WITH  OTHER  COMPANIES  DOING  BUSINESS 
THEREON. —  Every  corporation  or  company  operating  a  railroad,  or  any  part  of  a 
railroad,  within  this  state,  shall,  on  demand  of  the  commissioner,  furnish  him  with 
copies  of  all  leases,  contracts,  and  agreements  with  express,  sleeping  car,  freight,  or 
rolling  stock  companies,  or  other  companies  doing  business  upon  or  in  connection 
with  such  road;  and  the  commissioner  shall  have  power,  personally  or  by  agent,  to 
examine  any  officer,  agent,  or  employe  of  any  railroad  company,  or  of  any  of  said 
other  companies,  under  oath,  relative  to  the  stock  which  any  officer,  agent,  or  employe 
of  the  railroad  company  has  in  any  of  said  other  companies,  so  doing  business  upon 
or  in  connection  with  such  road,  and  his  pecuniary  interest,  direct  or  indirect,  in  any 
of  said  other  companies.      (May  5,   1873,  70  v.  276,  §§  2,  3.) 

§  257.  FATAL  ACCIDENTS  SHALL  BE  NOTIFIED  TO  COMMISSIONER  BY 
TELEGRAPH,  AND  HE  MAY  EXAMINE  INTO  CAUSE  OF  SAME.—  The  superin- 
tendent of  every  corporation  operating  a  railroad,  or  any  part  of  a  railroad,  in  this 
state,  shall  promptly  notify  by  telegraph  the  commissioner  of  all  accidents  happen- 
ing on  such  railroad,  or  part  of  a  railroad,  in  this  state,  resulting  in  loss  of  life  to  any 
person  or  persons;  and  the  commissioner  may,  personally  or  by  agent,  examine  into 
the  cause  and  character  of  such  accidents.     (May  5,  1873,  70  v.  276,  §  2.) 

§  258.  COMMISSIONER  HAS  POWER  TO  SUBP03NA  WITNESSES,  ETC.— 
The  commissioner,  in  the  discharge  of  his  duties,  has  power  to  subpoena  witnesses, 
administer  oaths,  compel  the  production  of  books  and  papers,  and  punish  for  con- 
tempt in  the  same  manner  and  to  the  same  extent  as  justices  of  the  peace.  (April  5, 
1867,  64  v.  Ill,  §  5;  May  5,  1873,  70  v.  276,  §  3.) 

§  259.  PENALTY  FOR  OFFICER,  AGENT,  OR  EMPLOYE  OF  RAILROAD  TO 
REFUSE  TO  ANSWER  QUESTION. —  An  officer,  agent,  or  employe  of  any  railroad 
company  who  refuses  to  answer  any  question  propounded  to  him  by  the  commissioner 
in  the  course  of  any  examination  authorized  by  this  chapter,  shall  be  fined  in  any  sum 
not  less  than  fifty  dollars  nor  more  than  five  hundred  dollars;  and  the  property  of 
the  railroad  company  of  which  he  is  an  officer,  agent  or  employe,  is  liable  to  be  taken 
in  execution  to  satisfy  the  fines  and  costs  in  such  cases.     (May  5,  1873,  70  v.  276,  S  3.) 

§  260.  STATEMENT  REQUIRED  TO  BE  MADE  BY  RAILROAD  COMPANIES. 
—  The  secretary  of  each  railroad  company,  and  of  each  telegraph  company,  now  doing 
business,  or  whose  line  is  in  process  of  construction,  or  which  may  be  hereafter  organ- 
ized in  the  state,  shall,  within  thirty  days  after  the  election  of  the  directors  of  such 
company,  make  out  and  forward  to  the  commissioner  of  railroads  and  telegraphs  a 
list  of  the  officers  and  directors  of  their  respective  companies,  giving  the  place  of 
residence  and  post-office  address  of  each;  and  thereafter,  if  any  change  occurs  in  the 
organization  of  the  officers  or  board  of  directors  of  the  company,  shall  notify  the  com- 


30  Private  Corporations  in  Ohio. 


Commissioner  of  Railroads  and  Telegraphs,    §S   261-265. 


missioner  of  railroads  and  telegraphs  of  the  fact  of  such  change,  and  the  residence 
and  post-office  address  of  each  of  the  officers  and  directors.  (April  24,  1873,  70  v. 
155,  §  1.) 

§  261.  PENALTY  FOR  FAILURE  TO  COMPLY.— For  a  failure  to  comply  with 
the  provisions  of  the  preceding  section,  any  company  so  neglecting  for  thirty  days 
after  the  time  herein  provided,  shall  be  subject  to  the  same  penalties  as  attach  for 
neglecting  or  refusing  to  make  the  required  annual  report  to  the  commissioner  of 
railroads  and  telegraphs.     (April  24,  1873,  70  v.  155,  §  2.) 

§  262.  PROSECUTIONS  FOR  FINES  ONLY  TO  BE  BY  CIVIL  ACTION,  AND 
FOR  FINE  AND  IMPRISONMENT  BY  INDICTMENT.— All  prosecutions  against 
railroad  or  telegraph  companies,  or  any  officer,  agent  or  employe  thereof,  for  forfeit- 
ures, penalties  or  fines,  without  imprisonment,  provided  for  in  this  chapter,  and 
other  sections  of  the  statutes  and  laws  of  Ohio,  if  not  otherwise  specifically  stated, 
shall  be  by  civil  action  in  the  name  of  the  state;  and  all  prosecutions  for  penalties 
involving  imprisonment  shall  be  by  indictment.  (April  25,  1893,  90  v.  299;  April 
5,  1867,  64  v.   Ill,  §  7;  May  5,   1873,  70  v.  276,  §  3.) 

§  263.  PROSECUTION  BY  CIVIL  ACTION;  BY  WHOM  BROUGHT.—  The  civil 
action  provided  for  in  the  next  preceding  section  shall  be  brought  by  the  prosecuting 
attorney  of  the  proper  county  at  the  instance  of  said  commissioner  of  railroads  and 
telegraphs;  and  in  case  said  commissioner  fail  to  so  instruct  the  said  prosecuting 
attorney  of  the  proper  county,  upon  the  written  request  of  any  taxpayer  of  the  county 
to  commence  civil  action  provided  for  in  the  next  preceding  section,  said  prosecuting 
attorney  shall  do  so,  provided  he  is  furnished  with  evidence  which  in  his  judgment 
will  probably  sustain  such  action,  and  if  the  action  fail  the  costs  in  such  case  shall 
be  adjudged  against  the  county,  except  in  such  cases  as  hereinafter  provided;  pro- 
vided, further,  that  where  cause  of  civil  action,  arises,  as  provided  for  in  the  next 
preceding  section,  within  the  boundary  lines  of  any  municipality,  in  addition  to  the 
provisions  already  provided  for  in  this  section  for  instituting  prosecutions  of  civil 
action,  the  city  solicitor  of  any  municipality  shall,  when  required  so  to  do  by  resolu- 
tion of  the  council  adopted  by  a  majority  of  the  quorum,  institute  such  proceedings 
and  prosecute  them  to  final  judgment.  When  such  action  is  so  brought  by  the  munici- 
pality and  fails  of  final  judgment  in  the  supreme  court,  the  cost  thereof  shall  be 
adjudged  against  such  municipality,  and  time  for  notice  of  appeal  and  giving  of  bond 
shall  not  apply  to  cases  within  the  meaning  of  this  act.  (April  25,  1893,  90  v.  299; 
April   5,   1867,   64  v.    Ill,   §   8.) 

§  264.  ANNUAL  REPORT  TO  BE  MADE  BY  THE  COMMISSIONER,  AND 
WHAT  TO  CONTAIN.—  The  commissioner  shall  make  to  the  governor,  on  or  before 
the  first  day  of  January,  of  each  year,  a  report  of  the  affairs  and  condition  of  all  the 
railroad  and  telegraph  companies  having  lines  in  this  state,  and  also  of  accidents  on 
railroads  resulting  in  injuries  to  persons,  and  the  circumstances  and  cause  thereof; 
and  he  shall  include  in  his  report  such  other  information  and  such  suggestions  and 
recommendations  as,  in  his  opinion,  are  of  importance  to  the  state.  (February  27, 
1877,  74  v.  33,  §  12.) 

§  265.  MONEYS  COLLECTED  SHALL  BE  PAID  INTO  THE  STATE  TREAS- 
URY; FEES  OF  PROSECUTING  ATTORNEYS.— All  moneys  arising  from  suits  in 
the  name  of  the  state,  or  prosecutions  against  railroad  companies  or  against  any  of 
their  officers,  or  employes,  for  violation  of  any  of  the  provisions  of  law  relating  to 
railroads,  shall  be  paid  into  the  state  treasury;  but  prosecuting  attorneys  shall,  for 
any  moneys  collected  therein  by  them,  be  allowed  ten  per  centum  thereof  for  their 
services.     (April  5,  1867,  64  v.   Ill,  §  7.) 


Miscellaneous  Provisions.  31 

Superintendent  of  Insurance,  §§  266  270. 


SUPERINTENDENT  OF  INSURANCE. 
§  266.  APPOINTMENT  AND  TERM;  WHO  ELIGIBLE.— The  superintendent  of 
insurance  shall  be  appointed  by  the  governor,  by  and  with  the  advice  and  consent  of 
the  senate,  and  hold  his  office  for  three  years;  and  no  person  shall  be  appointed  v/ho  is 
not  an  elector  of  this  state,  or  who  has  any  official  connection  with  an  insurance  com- 
pany, owns  any  stock  in  such  company,  or  is  interested  in  the  business  thereof, 
except  as  a  policy  holder.     (March  12,  1872,  69  v.  32,  §  2.) 

§  267.  BOND  TO  BE  GIVEN,  AND,  WITH  OATH  OF  OFFICE  INDORSED 
THEREON,  TO  BE  FILED  WITH  THE  SECRETARY  OF  STATE.— Before  entering 
upon  the  discharge  of  his  duties,  the  superintendent  shall  give  bond  to  the  state  in 
the  sum  of  twenty  thousand  dollars,  with  not  less  than  two  sureties,  to  be  approved 
by  the  governor,  conditioned  for  the  faithful  discharge  of  his  duties;  and  the  bond, 
with  his  oath  of  office  and  the  approval  of  the  governor  indorsed  thereon,  shall  be 
filed  with  the  secretary  of  state.     (March  12,   1872,  69  v.  32,   S  3.) 

§  268.  DUTY  OF  SUPERINTENDENT  TO  ENFORCE  INSURANCE  LAWS.— 
The  superintendent  shall  see  to  the  execution  and  enforcement  of  all  laws  relating 
to  insurance.     (March   12,   1872,  69  v.  32,   §   3.) 

Discretion  vested  in  commissioner. 

State  v.  Moore,  4_!  Oh.  St.  103-100   (1SS4). 

§  269.  HE  MAY  APPOINT  A  DEPUTY  SUPERINTENDENT  TO  TAKE  OATH 
AND  GIVE  BOND,  AND  MAY  DISCHARGE  DUTIES  OF  SUPERINTENDENT; 
COMPENSATION;  CLERKS  AND  EXPERTS. —  The  superintendent  may  appoint  a 
deputy  superintendent  having  the  same  qualifications  as  the  superintendent,  whose 
appointment  may  be  evidenced  by  a  certificate  under  the  official  seal  of  the  superin- 
tendent. Before  entering  upon  the  discharge  of  his  duties,  the  deputy  superintendent 
shall  take  the  oath  of  office,  and  give  bond  in  the  sum  of  ten  thousand  dollars  to  the 
superintendent,  with  two  or  more  sureties  to  the  acceptance  of  the  superintendent, 
conditioned  for  the  faithful  performance  of  his  official  duties.  In  case  of  the  absence 
or  inability  of  the  superintendent,  the  deputy  superintendent  shall  have  the  powers 
and  perform  the  duties  of  the  superintendent.  The  deputy  superintendent  shall 
receive  a  salary  of  two  thousand  four  hundred  dollars  per  annum.  Foreign  insurance 
companies  shall  pay,  annually,  as  fees  for  making  out  and  forwarding  annually, 
semi-annually  and  quarterly  the  interest  checks  and  coupons  accruing  upon  bonds 
and  securities  deposited,  the  sum  of  twenty-five  dollars  on  each  one  hundred  thou- 
sand dollars  so  deposited,  which  fees  shall  be  turned  over  to  the  state  treasurer  on  the 
warrant  of  the  state  auditor.  The  superintendent  may  employ  from  time  to  time 
such  other  clerks  as  the  prompt  dispatch  of  business  requires;  and  he  may,  also 
from  time  to  time,  employ  skilled  and  competent  persons  to  examine  the  business 
and  affairs  of  insurance  companies  and  report  thereon.  (May  12,  1902,  95  v.  549; 
April  26,  1898,  93  v.  292;  March  12,  1872,  69  v.  32,  S  4.) 

State  v.  Moore,  42  Oh.  St.  103-106  (1S84). 

§  270.  INSURANCE  DEPARTMENT;  EXPENDITURES,  SALARIES;  OFFICE 
AND  FEES  OF  SUPERINTENDENT. —  The  office  of  the  superintendent  shall  be  in 
the  state  house,  and  all  salaries  and  expenditures  of  the  insurance  department  shall 
be  paid  [on  the  certificate  of  the  superintendent;  but  no  money  shall  be  paid]:|:  out  of 
the  state  treasury  in  excess  of  the  amount  collected  from  insurance  companies,  as  pro- 
vided by  law;  and  provided,  also,  that,  in  case  the  excess  of  fees  collected  and  paid 
into  the  state  treasury,  as  provided  by  section  two  hundred  and  eighty-two.  Revised 
Statutes  of  Ohio,  over  the  total  salaries  and  expenditures  of  said  insurance  depart- 
ment, shall  equal  the  sum  of  fifteen  thousand  dollars,  the  said  superintendent  of 
insurance  shall  receive,  out  of  said  excess  of  fees,  a  sum  not  exceeding  ten  per  centum 
on  such  excess;  provided,  that  said  superintendent  shall  not  receive  in  such  fees 
exceeding  the  sum  of  one  thousand  dollars  per  annum  in  addition"  to  his  salary,  as 


32  Private  Corporations  in  Ohio. 


Superintendent  of  Insurance,  SS  271-273. 


now  provided  by  law;  provided  further,  that  all  fees  shall  be  paid  by  the  superin- 
tendent of  insurance  into  the  state  treasury  on  the  warrant  of  the  state  auditor. 
And  the  said  additional  salary,  so  provided,  shall  be  paid  under  appropriations,  by  the 
state  treasurer,  upon  the  warrant  of  the  state  auditor.  (May  12,  1902,  95  V.  549; 
May  1,  1885,  82  v.  202;  Rev.  Stat.  1880;  March  12,  1872,  69  v.  32,  §  4.) 

Note.— The  words  in  brackets  do  not  ap-     enactment  shows  that  they  were  undoubtedly 
pear  in  95  O.  L.  549.  but  are  required  by  the     omitted  by  mistake. 
sense,    and    an    examination    of    the    former 

§  271.  INSTRUMENTS  UNDER  SUPERINTENDENT'S  SEAL  TO  BE  EVI- 
DENCE, AND  ENTITLED  TO  RECORD.—  Any  certificate,  assignment,  or  convey- 
ance, executed  by  the  superintendent  in  pursuance  of  law,  and  sealed  with  his  seal 
of  office,  shall  be  received  as  evidence,  and  may  be  recorded  in  the  proper  recording 
office  in  the  same  manner  and  with  like  effect  as  a  deed  regularly  acknowledged 
before  an  officer  authorized  by  law  to  take  acknowledgments  of  deeds;  and  all  copies 
of  papers  in  the  office  of  the  superintendent,  certified  by  him  and  authenticated  by 
the  seal,  shall  in  all  cases  be  evidence  equally  and  in  like  manner  as  the  originals. 
(March  12,  1872,  69  v.  32,  §  5.) 

§    272.     EXAMINATIONS  OF  COMPANIES  DOING  BUSINESS  IN  THE  STATE. 

The  superintendent,  when  he  has  reason  to  suspect  the  correctness  of  any  state- 
ment of  an  insurance  company  doing  business  in  the  state,  whether  incorporated  in 
this  state  or  not,  or  that  its  affairs  are  in  an  unsound  condition,  shall  make,  or  cause 
to  be  made  by  some  person  by  him  for  that  purpose  appointed,  an  examination  into 
the  affairs  of  such  company;  and  such  company,  its  officers  and  agents  shall  submit 
their  books  and  business  to  such  examination,  and  in  every  way  facilitate  the  same, 
and  he  shall,  annually,  make  or  cause  to  be  made,  an  examination  of  the  assets  of 
every  life  insurance  company  organized  under  the  laws  of  this  state,  and  ascertain  if 
the  same  are  invested  in  the  manner  prescribed  by  law  at  the  date  each  investment 
was  made,  and,  also,  if  the  last  preceding  annual  statement  of  assets  and  unpaid  death 
claims  was  correct.  The  actual  expenses  incurred  by  said  examination  shall  be  paid 
by  the  state  treasurer  on  the  warrant  of  the  state  auditor  upon  the  certificate  of 
the  superintendent  of  insurance;  provided  that,  when  any  examination  is  made 
upon  the  demand  of  the  company  therefor,  the  expenses  of  the  same  shall  be  paid 
by  the  company;  and  provided  further,  that,  when,  by  the  laws  of  any  other  state, 
district,  territory  or  nation,  examinations  of  companies  of  this  state  are  required 
cr  permitted  to  be  made  by  the  insurance  department  or  other  authority  of  such  state, 
district,  territory  or  nation  at  the  expense  of  such  companies,  then  the  expenses  of 
all  examinations  made  by  the  insurance  department  of  this  state  of  all  companies 
of  such  state,  district,  territory  or  nation  shall  be  respectively  charged  to  and  col- 
lected from  the  companies  so  examined.  (May  12,  1902,  95  v.  549;  May  15,  1878, 
75  v.  576,  §  7;  March  12,  1872,  69  v.  32,  §   12.) 


Special  charter. 

Companies  organized  under  special  charter 
prior  to  the  constitution  of  1851  are  subject 
to  this  section. —  State  v.  Ins.  Co.,  50  Oh.  St. 
252:    s.  c,   153  U.  S.  446    (1893). 


No     appeal    from     superintendent's     de- 
cision. 

Appeal  will  not  lie  from  the  decision  of  the 
superintendent  in  revoking  the  license  of  a 
company  on  the  ground  of  being  in  an  "  un- 
sound condition."—  State  v.  Moore,  42  Oh. 
St.   103-106   (1884). 

§  273.  POWER  OE  EXAMINERS;  MAY  PUBLISH  RESULT.— For  the  pur- 
poses of  such  examination,  the  superintendent,  or  the  person  or  persons  so  appointed 
by  him,  have  power  to  administer  oaths  to  and  examine  the  officers  and  agents  of 
such  company  relating  to  its  business  and  affairs;  and  when  the  superintendent  deems 
it  to  the  interest  of  the  public,  he  may  publish  the  result  of  such  investigation  in  a 
newspaper  printed  in  Columbus,  and  of  general  circulation  in  the  state,  and  in  one 
printed  in  the  county  where  the  principal  office  of  such  company  is  located.  (March 
12,  1872,  69  v.  32,  §  8.) 


Miscellaneous  Provisions.  33 


Superintendent  of  Insurance,   §§  274-276. 


§  274.  PROCEEDINGS  AGAINST  UNSOUND  COMPANIES.  —  When  it  appears 
to  the  superintendent,  from  examination,  or  otherwise,  that  the  assets  of  any  life 
insurance  company,  organized  under  the  laws  of  the  state,  are  insufficient  to  reinsure 
its  outstanding  risks,  as  provided  by  this  chapter,  or  that  the  assets  of  any  joint  stock 
insurance  company  other  than  life,  organized  under  the  laws  of  this  state,  after 
deducting  therefrom  all  actual  liabilities  and  a  reinsurance  fund  equal  to  fifty  per 
cent,  of  the  whole  amount  of  premiums  on  all  unexpired  risks  and  policies,  are 
reduced  twenty  per  cent,  or  more  below  the  capital  stock  required  by  law,  he  shall 
require  the  officers  thereof  to  direct  the  stockholders  to  pay  in  the  amount  of  such 
deficiency,  within  such  period  as  he  designates  in  such  requisition;  and  after  the 
superintendent  issues  his  requisition  calling  for  a  sum  to  be  paid  by  the  stockholders 
of  any  company,  amounting  to  or  exceeding  forty  per  cent,  of  the  capital,  it  is  unlaw- 
ful for  the  company  to  issue  any  new  policies  or  transact  any  new  business  until  the 
superintendent  of  insurance  issues  to  such  company  a  license,  authorizing  it  to  resume 
business,  or  until  the  court  has  rendered  its  decision  in  the  case,  as  herein  provided; 
but  in  case  the  requisition  calls  for  a  less  amount  than  forty  per  cent,  of  the  capital, 
and  the  officers  of  the  company,  in  accordance  with  the  requisition,  direct  the  stock- 
holders to  pay  the  amount  required  for  making  up  the  capital,  and  so  signify  to  the 
superintendent,  then  it  will  be  lawful  for  the  company  to  continue  business  as  before 
the  issuing  of  the  requisition,  for  the  term  of  thirty  days  from  the  date  thereof;  and, 
if  at  the  expiration  of  the  thirty  days,  any  portion  of  the  requisition  of  the  superin- 
tendent remains  unpaid,  the  company  shall  not  issue  any  new  policies,  or  transact  any 
new  business  until  authorized  by  the  superintendent  as  aforesaid.  (April  26,  1873, 
70  v.  165,  §  9.) 

§  275.  PROCEDURE  IN  CASE  OP  DEFAULT  TO  COMPLY  WITH  REQUISI- 
TION. —  In  case  of  default  on  the  part  of  the  company  to  comply  with  such  requisi- 
tion, the  superintendent  shall  communicate  the  fact  to  the  attorney-general,  who 
shall  apply  to  the  court  of  common  pleas  of  the  county  in  which  the  principal  office 
of  the  company  is  located  for  an  order  requiring  such  company  to  show  cause  why 
the  business  thereof  should  not  be  closed,  and  shall  give  to  the  company  such  notice 
of  the  pending  of  such  application  as  the  court  directs,  and  the  court  shall  thereupon 
proceed  to  hear  the  allegations  and  proof  of  the  respective  parties;  or,  the  court  shall 
have  power  to  refer  the  application  of  the  attorney-general  to  a  referee,  to  inquire 
into  and  report  upon  the  facts  stated  therein:  In  case  it  appears  to  the  satisfaction 
of  the  court  that  the  assets  of  the  company  are  not  sufficient,  as  aforesaid,  or  that  the 
interests  of  the  public  so  require,  the  court  shall  decree  a  dissolution  of  the  company 
and  a  distribution  of  its  effects;  and  any  transfer  of  the  stock  of  a  company  made 
during  the  pendency  of  such  investigation  shall  not  release  the  party  making  the 
transfer  from  his  liability  for  losses  which  have  occurred  previous  to  the  transfer. 
(April  26,  1873,  70  v.  165,  §  10.) 

§  276.  IN  RELATION  TO  UNSOUND  MUTUAL  INSURANCE  COMPANIES.  — 
If,  upon  examination,  it  appears  to  the  superintendent  that  the  assets  of  any  company 
organized  on  the  plan  of  mutual  insurance,  after  deducting  therefrom  all  actual  lia- 
bilities and  a  reinsurance  fund  equal  to  fifty  per  cent,  of  the  advanced  cash  premiums 
received  on  all  unexpired  risks  and  policies,  are  insufficient  to  justify  the  continu- 
ance of  such  company  in  business,  he  shall  proceed,  in  relation  to  such  company,  in 
the  same  manner  as  is  herein  required  in  regard  to  joint  stock  companies;  and  the 
trustees  or  directors  of  such  company  are  hereby  made  personally  liable  for  any 
losses  which  are  sustained  upon  risks  taken  after  the  superintendent  of  insurance 
has  issued  his  requisition  for  filling"  up  the  deficiency  in  the  assets,  and  before  such 
deficiency  is  made  up;  but  nothing  herein  shall  be  so  construed  as  to  require  any 
mutual  fire  insurance  company  to  keep  on  hand  any  cash  reinsurance  reserve  or  funds 
invested  in  securities,  other  than  their  premium  notes,  when  the  premium  notes 
amount  in  gross  to  three  per  centum  of  the  amount  at  risk  by  the  company.  (April 
26,  1873,  70  v.  165,  §  11.) 

LAW   GOV.    PRIV.    COR. —  3. 


34 


Private  Corporations  in  Ohio. 


Superintendent  of  Insurance,   §§  277-279. 


Re-insurance   fund   not   a   debt. 

The  sum  set  aside  as  a  re-insurance  fund  is 
not  a  debt  to  be  deducted  in  making  returns 
for  taxation.  —  Ins.  Co.  v.  Cappellar,  38  Oh.  St. 
560.  568   (1883). 


Unpaid   assessment. 

A  stockholder,  who  has  not  paid  his  assess- 
ment, made  in  pursuance  to  this  section,  is  not 
entitled  to  share  in  dividends  afterwards 
declared  by  the  company  until  such  assessment 
is  paid. —  Rhodes  v.  Ins.  Co.,  3  0.  C.  C.  501 
(1888)  ;  s.  c,  2  C.  D.  2S8. 


§  277.  REVOCATION  OF  AUTHORITY  TO  SUCH  COMPANIES.  —  When  it 
appears  to  the  superintendent  of  insurance,  from  the  report  of  the  person  appointed 
by  him,  or  other  satisfactory  evidence,  that  the  affairs  of  any  company,  partnership, 
or  association,  not  organized  under  the  laws  of  this  state,  are  in  an  unsound  condi- 
tion, he  shall  revoke  the  authority  granted  to  such  company  to  do  business  in  this 
state,  and  cause  a  notice  thereof  to  be  published  in  at  least  one  newspaper  published 
in  the  city  of  Columbus,  and  in  the  county  where  the  general  agency  is  located  within 
this  state;  and  after  the  publication  of  such  notice,  it  is  unlawful  for  the  agents  of 
such  company  to  procure  any  new  applications  for  insurance  or  to  issue  any  new  poli- 
cies.    (March  12,  1872,  69  v.  32,  §  12.) 

Moore,    42    Oh.    St.    103,    106 


See    State 
(1884). 
Remedy  to  prevent  revocation. 

Mandamus   will   not  lie  to  prevent  the  re- 
voking  of   the   license   of   an   insurance   com- 


pany. Injunction  is  proper  remedv.  —  State 
v.  Hahn,  50  Oh.  St.  714  (1SH3)  :  overruling 
State  v.  Reinmund.  45  Oh.  St.  214  (1887). 


§  278.  RECORD  OF  PROCEEDINGS  AND  REPORT  THEREOF.  —  The  superin- 
tendent shall  keep  and  preserve,  in  a  permanent  form,  a  full  record  of  his  proceedings, 
including  a  concise  statement  of  the  condition  of  each  company  reported,  visited,  or 
examined  by  him;  and  he  shall,  annually,  at  the  earliest  practicable  date  after  the 
returns  are  received  from  the  several  companies,  make  a  report  to  the  legislature  of 
the  general  conduct  and  condition  of  the  insurance  companies  doing  business  in  this 
state,  with  such  suggestions  as  he  deems  expedient,  including  also  the  information 
contained  in  the  statements  required  of  the  companies,  and  the  result  of  the  official 
valuations  of  life  policies,  to  be  arranged  in  tabular  form,  and  prepare  the  same  for 
printing  in  two  separate  reports,  one  pertaining  to  life  insurance  companies,  and  the 
other  to  all  insurance  companies  other  than  life;  and  he  shall  also  report  the  names 
and  compensation  of  the  clerks  employed  by  him,  the  whole  amount  of  income,  the 
source  whence  derived,  and  the  expenses  in  detail,  during  the  year  ending  on  the 
thirty-first  day  of  the  preceding  December.     (March  12,  1872,  69  v.  32,  §  13.) 

See    State    v.    Reinmund.    45    Oh.    St.    214(1887). 

§  279.    ANNUAL  VALUATIONS,  RATE  OF  INTEREST,  ETC.;    EXCEPTION.  — 

The  superintendent  shall,  annually,  make  or  cause  to  be  made,  net  valuations  of  all 
outstanding  policies,  additions  thereto,  unpaid  dividends,  and  all  other  obligations  of 
every  life  insurance  company  transacting  business  in  this  state;  and  for  the  purpose 
of  such  valuations,  and  for  making  special  examinations  of  the  condition  of  life  insur- 
ance companies,  as  provided  in  the  laws  of  this  state  relating  to  life  insurance  com- 
panies, and  for  valuing  all  policies  of  whatever  description,  and  for  any  purpose 
whatever,  the  rate  of  interest  shall  be  four  per  cent,  per  annum,  and  the  rate  of  mor- 
tality shall  be  established  by  the  tables  known  as  the  American  experience  tables, 
but  when  the  laws  of  any  other  state  of  the  United  States  authorize  a  valuation  of  life 
insurance  policies,  by  some  designated  state  officer,  according  to  the  standard  herein 
provided,  or  according  to  any  other  standard  which  makes  the  value  of  the  policy  not 
less  than  that  of  the  standard  herein  provided,  the  valuation  made  according  to  the 
said  standard,  by  such  officer  of  the  policies  and  other  obligations  of  any  life  insur- 
ance company  not  organized  under  the  laws  of  this  state,  and  certified  by  said  officer, 
may  be  received  as  true  and  correct,  and  no  further  valuation  of  the  same  shall  be 
required  of  such  company  by  the  superintendent  of  insurance,  except  that  in  no  case 


Miscellaneous  Provisions.  35 

Superintendent  of  Insurance,   §§   280-282. 


shall  the  superintendent  of  insurance  accept  the  certificate  of  valuation  of  such  officer 
of  another  state  of  the  United  States,  when  such  officer  does  not  accept,  or  refuses  or 
fails  to  accept  a  like  certificate  from  him  of  the  valuation  of  the  policies  of  any  lif « 
insurance  company  incorporated  under  the  laws  of  Ohio,  or  when  any  such  officer  of 
another  state  is  prohibited  by  law  from  accepting  the  certificate  of  valuation  of  the 
superintendent  of  insurance  of  this  state,  the  said  superintendent  shall  forthwith 
require  the  officers  of  all  companies  located  in  such  state  to  submit  to  him,  within  a 
reasonable  time,  the  descriptions  of  the  policies  thereof  for  valuation,  and  he  shall 
proceed  to  make,  or  cause  to  be  made,  a  valuation  thereof  according'  to  the  standard 
herein  named,  and  in  case  said  descriptions  are  not  submitted  to  the  said  superin- 
tendent within  the  time  fixed  by  him,  he  shall  revoke  the  license  of  such  company  or 
companies  as  shall  fail  to  do  so,  and  shall  refuse  to  renew  the  same,  until  such 
description  shall  be  submitted  and  a  valuation  by  him  shall  have  been  completed. 
(February  7,  1889,  86  v.  11;    Rev.  Stat.  1880;    May  15,  1878,  75  v.  580,  §  14.) 

§  280.  FORMS  OF  STATEMENTS  TO  BE  FURNISHED.  —  The  superintendent 
shall,  annually,  in  September,  fui-nish  to  the  insurance  companies  doing  business  in 
this  state,  two  or  more  printed  copies  of  the  forms  of  statements  required  by  this 
chapter  to  be  made  by  them,  and  he  may  make  such  changes,  from  time  to  time,  in 
the  form  of  the  same,  and  such  additions  thereto,  as  seems  to  him  best  adapted  to 
elicit  from  the  companies  a  true  exhibit  of  their  condition.  (March  12,  1872,  69  v. 
32,  §  15.) 

§  281.  SECURITIES  SHALL  BE  DEPOSITED  IN  THE  STATE  TREASURY.— 
All  securities  deposited  with  the  superintendent  of  insurance,  pursuant  to  the  pro- 
visions of  any  law  of  the  state,  shall  be  deposited  by  him  with  the  treasurer  of  state, 
who,  with  his  sureties,  shall  be  responsible  for  the  safe  keeping  thereof;  and  the 
treasurer  shall  only  deliver  such  securities  or  coupons  attached  thereto  upon  the 
written  order  of  the  superintendent  of  insurance.     (April  26,  1873,  70  v.  165,  §  16.) 

§  282.  FEES  SHALL  BE  PAID  BY  COMPANIES.—  There  shall  be  paid  by  every 
insurance  company  doing  business  in  this  state,  to  the  superintendent  of  insurance, 
the  following  fees:  For  filing  copy  of  its  charter  or  deed  of  settlement,  twenty-five 
dollars;  for  filing  each  statement,  twenty  dollars;  for  each  certificate  of  authority,  or 
license  and  certified  copy  thereof,  two  dollars;  for  each  copy  of  a  paper  filed  in  his 
office,  the  sum  of  twenty  cents  per  folio;  and  for  affixing  the  seal  of  office  and  certify- 
ing any  paper,  one  dollar;  all  of  which  fees  shall  be  paid  by  the  superintendent  into 
the  state  treasury.  There  shall  also  be  paid  by  every  life  insurance  company  doing 
business  in  this  state,  annually,  by  way  of  compensation  for  the  valuation  of  its  poli- 
cies, in  case  no  certified  valuation  of  the  same  has  been  furnished  to  the  superin- 
tendent of  insurance,  as  provided  in  section  279  of  the  Revised  Statutes  of  Ohio,  one 
cent  on  every  one  thousand  dollars  insured  by  it  on  lives,  which  shall  be  paid  by 
the  superintendent  of  insurance  into  the  state  treasury.  When  by  the  laws  of  any 
other  state  or  nation,  any  taxes,  fines,  penalties,  license  fees,  deposits  of  money,  or 
of  [securties],  certificates,  or  other  obligations  or  prohibitions  are  imposed  on  insur- 
ance companies  of  this  state,  doing  business  in  such  state  or  nation,  or  upon  their 
agents  therein,  so  long  as  such  laws  continue  in  force,  the  same  obligations  and  pro- 
hibitions, of  whatever  kind,  shall  be  imposed  upon  all  insurance  companies  of  such 
other  state  or  nation,  doing  business  within  this  state,  and  upon  their  agents  here. 
(May  12,  1902,  95  v.  549;  March  30,  1892,  89  v.  167;  March  25,  1891,  88  v.  196; 
March  12,  1872,  69  v.  32,  §   17.) 


See  §  3631a. 

As  to  operation  of  last  clause  of  this  mo- 
tion, see  State  v.  Reinmund,  45  Oh.  St.  214 
(1887). 

As  to  valuation  of  policies.  State  v.  Rein- 
mund. 45  Oh.  St.  214   (1887). 


Section  retaliatory. 

This  section  is  retaliatory,  and  therefore 
must  be  confined  to  cases  fairlv  within  it. — 
State  v.   Ins.  Co..  49  Oh.   St.  440    (1892). 

Section  construed. —  State  v.  Ins.  Co.,  49 
Oh.  St.  440  (1692). 


3g  Private  Corporations  in  Ohio. 


Superintendent  of  Insurance,  §§  283-286. 


§  283.  LICENSE,  ETC.,  OF  PERSONS  MAKING  APPLICATION  FOR  INSUR- 
ANCE. —  It  shall  be  unlawful  for  any  person,  company,  or  corporation  in  this  state, 
either  to  procure,  receive,  or  forward  applications  for  insurance  in  any  company  or 
companies  not  organized  under  the  laws  of  this  state,  or  in  any  manner  to  aid  in  the 
transaction  of  the  business  of  insurance  with  any  such  company,  unless  duly  author- 
ized by  such  company  and  licensed  by  the  superintendent  of  insurance,  in  conformity 
to  the  provisions  of  this  chapter.     (March  12,  1872,  69  v.  32,  §  18.) 

§  284.  ANNUAL  PUBLICATION  OF  CERTIFICATE  REQUIRED.  —  Every 
insurance  company  doing  business  in  this  state  shall  publish,  at  least  once  a  year,  in 
some  newspaper  of  general  circulation,  in  every  county  where  such  company  has  an 
agent,  a  certificate  from  the  superintendent  of  insurance  that  such  company  has,  in 
all  respects,  complied  with  the  laws  of  the  state  relating  to  insurance;  and  the  cer- 
tificate shall  also  contain  a  statement,  under  the  oath  of  the  president  or  secretary  of 
such  insurance  company,  of  the  actual  amount  of  paid  up  capital,  the  aggregate 
amount  of  assets  and  liabilities,  together  with  the  aggregate  income  and  expenditures 
of  such  company  for  the  year  preceding  the  date  of  such  certificate;  a  copy  of  which 
certificate  shall  be  filed  in  the  office  of  the  recorder  in  each  county  in  which  the  com- 
pany has  an  agent,  and  for  every  such  paper  the  recorder  shall  receive  the  sum  of  ten 
cents.  No  other  publication  than  as  herein  provided  for  is  required  of  such  com- 
panies.    (March  12,  1872,  69  v.  32,  §§  19,  21;    S.  &  S.  227.) 

§  285.  FOREIGN  INSURANCE  COMPANIES  MAY  APPOINT  AGENTS,  ETC.  — 
Any  insurance  company  not  organized  under  the  laws  of  this  state  may  appoint  one 
or  more  general  agents  in  this  state,  by  resolution  of  its  board  of  directors  or  man- 
agers, with  authority  to  appoint  other  agents  of  the  company  in  this  state,  a  certified 
copy  of  which  resolution  shall  be  filed  with  the  superintendent  of  insurance;  and 
agents  of  such  company,  appointed  by  such  general  agent,  shall  be  held  to  be  the 
agents  of  sucb  company  as  fully,  to  all  intents  and  purposes,  as  if  they  were  appointed 
directly  by  the  company;  and  agents  for  any  such  company  in  this  state  may  be 
appointed  by  the  president,  vice-president,  chief  manager,  or  secretary  thereof,  in 
writing,  with  or  without  the  seal  of  the  company,  and  when  so  appointed  shall  be 
held  to  be  the  agents  of  such  company  as  fully  as  if  appointed  by  the  board  of  direc- 
tors or  managers  in  the  most  formal  mode.     (March  12,  1872,  69  v.  32,  §  20.) 

§  286.    DISCONTINUANCE  OF  BUSINESS  BY  LIFE  INSURANCE  COMPANY. 

When  any  life  insurance  company,  transacting  the  business  of  insurance  within 

the  state  of  Ohio,  desires  to  discontinue  its  business,  the  superintendent  shall,  upon 
application  of  such  company,  or  association,  give  notice  of  such  intention  in  a  paper 
published  and  having  general  circulation  in  the  county  in  which  such  company  or  its 
general  agency  is  located,  at  least  once  a  week  for  six  weeks,  the  expenses  of  publi- 
cation to  be  paid  by  the  company.  After  such  publication,  the  superintendent  shall 
deliver  up  to  such  company,  or  association,  the  securities  held  by  him  belonging  to  it, 
on  being  satisfied  by  the  exhibition  of  the  books  and  papers  of  such  company,  or 
association,  and  on  examination  to  be  made  by  himself,  or  some  competent  disinter- 
ested person  or  persons,  to  be  appointed  by  him,  and  upon  the  oath  of  the  president 
or  principal  officer,  and  the  secretary  or  actuary  of  the  same,  that  all  debts  and  liabili- 
ties of  every  kind  are  paid  and  extinguished,  that  are  due,  or  may  become  due,  upon 
any  contract  or  agreement  made  with  any  citizen  or  resident  of  the  United  States; 
and  the  superintendent  may  also,  from  time  to  time,  deliver  up  to  such  company,  or 
association,  or  its  assigns,  any  portion  of  said  securities,  on  being  satisfied  that  an 
equal  proportion  of  the  debts  and  liabilities,  of  every  kind,  that  are  due,  or  may 
become  due,  upon  any  contract  or  agreement  made  with  any  citizen  or  resident  of 
the  United  States,  by  said  company,  or  association,  has  been  satisfied;  but  the  amount 
of  securities  retained  by  him  shall  not  be  less  than  twice  the  amount  of  remaining 
liabilities.     (March  12,  1872,  69  v.  32,  §  22.) 


M  [SCELLANEOUS    PROVISIONS. 


37 


Superintendent  cf  Insurance,  £§  286a-289. 


§  286a.  DISCONTINUANCE  AND  WITHDRAWAL  OF  SECURITIES  EY  COM- 
PANY OTHER  THAN  LIFE.  —  When  any  insurance  company  or  corporation  other 
than  life,  which  has  made,  or  hereafter  shall  make,  a  deposit  with  the  superintendent 
of  insurance,  intends  to  discontinue  its  business  in  Ohio,  the  superintendent  shall, 
upon  application  of  such  company  or  corporation,  give  notice  of  such  intention  in 
three  newspapers  of  general  circulation  in  the  state  at  least  once  a  week  for  six  weeks, 
the  expense  of  such  publication  to  be  paid  by  the  company.  After  such  publication, 
and  on  being  satisfied  by  the  affidavit  of  the  principal  officers  of  the  company  and  by 
an  examination  of  the  books  and  records  of  the  company  or  corporation  to  be  made 
by  him  or  some  competent  disinterested  person  or  persons  by  him  appointed  for  that 
purpose,  if  such  examination  be  by  him  deemed  necessary,  that  all  debts  and  lia- 
bilities of  every  kind  that  the  deposit  is  made  to  secure,  or  that  may  become  due  on 
any  policy  issued  to  any  resident  or  citizen  of  the  state  of  Ohio,  are  fully  paid  off, 
satisfied  and  discharged,  the  superintendent  shall  deliver  up  to  such  company  or  cor- 
poration or  its  assigns  the  securities  held  by  him  belonging  to  it.     (March  22,  1893, 

90  v.  103.) 

§  287.  APPLICABLE  TO  COMPANIES  UNDER  LAWS  OF  THE  UNITED 
STATES.  —  All  the  provisions  of  this  chapter  relating  to  insurance  companies  organ- 
ized under  the  laws  of  any  other  state  of  the  United  States  shall  apply  to  any  company 
organized  under  the  laws  of  the  United  States,  for  any  of  the  purposes  specified  in 
this  chapter;  and  all  the  provisions  of  this  chapter  relating  to  agents  of  companies 
organized  under  the  laws  of  any  state  shall  apply  to  the  agents  of  such  companies 
organized  under  the  laws  of  the  United  States;  and  any  violation  of  the  provisions 
of  this  chapter  by  any  person,  or  agent,  in  the  employment  of  any  such  company, 
organized  under  the  laws  of  the  United  States,  shall  subject  the  offender  to  the  same 
penalties  provided  by  this  chapter  for  any  violation  of  its  provisions  by  persons  act- 
ing for  similar  companies  organized  under  the  laws  of  any  other  state  of  the  United 
States.     (March  12,  1872,  69  v.  32,  §  23.) 

§  288.  PENALTY  FOR  VIOLATION  OF  STATUTORY  PROVISIONS  RELAT- 
ING TO  INSURANCE  COMPANIES.  —  Any  person  who  violates  any  of  the  provi- 
sions of  this  chapter,  or  of  any  insurance  law  of  this  state  for  the  violation  of  which 
no  penalty  is  elsewhere  provided,  shall  be  fined  not  more  than  one  thousand  dollars 
or  imprisoned  not  more  than  six  months,  or  both.  Any  corporation,  company  or 
association  violating  any  of  the  provisions  of  this  chapter,  or  of  any  insurance  law  of 
this  state  for  the  violation  of  which  no  penalty  is  elsewhere  provided,  shall  be  liable 
to  a  penalty  of  not  more  than  one  thousand  dollars  nor  less  than  one  hundred  dollars, 
to  be  recovered  by  action  in  the  name  of  the  state,  and  on  collection  paid  to  the  super- 
intendent of  insurance  to  be  covered  by  him  into  the  state  treasury.     (May  19,  1894, 

91  v.  331;   April  17,  1885,  82  v.  138;    69  v.  32,  §  24.) 

Cited,  State  ex  rel.  v.  Ackerman,  51  Oh.  St.  1C3,  193   (1S94). 


§  289.  INSURANCE  BUSINESS  UNLAWFUL  EXCEPT  UNDER  PROVISIONS 
OF  THIS  CHAPTER.—  The  provisions  of  this  chapter  shall  apply  to  individuals  and 
parties,  and  to  all  companies  and  associations,  whether  incorporated  or  not,  now  or 
hereafter  engaged  in  the  business  of  insurance;  and  it  is  unlawful  for  any  company, 
corporation,  or  association,  whether  organized  in  this  state  or  elsewhere,  either  directly 
or  indirectly,  to  engage  in  the  business  of  insurance,  or  to  enter  into  any  contracts 
substantially  amounting  to  insurance,  or  in  any  manner  to  aid  therein,  in  this  state. 
or  to  engage  in  the  business  of  guaranteeing  against  liability,  loss  or  damage,  unless 
the  same  is  expressly  authorized  by  the  statutes  of  this  state,  and  such  statutes  and 
all  laws  regulating  the  same  and  applicable  thereto  have  been  complied  with.  (May 
12,  1902,  95  v.   553;  March  12,  1872,  69  v.  32,  §  25.) 


Cited.  State  v.   Ackerman,  51   Oh.  St.   163, 
193   (1894); 


Does   not    apply   to    insuring   one's    own 
■nroTJertv  in  nnwnfhorized  compamv. 

Pennsylvania  v.  Biddle,  11  L.  R.  A.  (Penn.) 
561    (1891). 


38  Private  Corporations  in  Ohio. 

Cemetery  Associations,   §§    1465-1-1465-3. 

An  Act  Providing  a  Method  of  Procedure    for    Collecting    Claims    Payable 
from  Fund*  Deposited  with  tlic  Superintendent  of  Insurance,  or  other 
state  Officer. 
Be  it  enacted  by  the  General  Assembly  of  the  State  of  Ohio: 

§  1.  ACTION  TO  SUBJECT  DEPOSIT  TO  PAYMENT  OF  LIABILITIES,  ETC.; 
DUTY  OF  ATTORNEY-GENERAL. —  If  any  company,  corporation,  or  association, 
which  may  by  the  statutes  of  this  state,  be  required  to  make  a  deposit  with  the  super- 
intendent of  insurance,  or  other  state  officer,  for  the  purpose  of  securing  the  contracts 
of  such  company,  corporation,  or  association,  or  for  any  other  purpose,  shall  fail  to 
pay  any  of  its  liabilities  upon  such  contracts,  or  other  obligations,  for  which  such  de- 
posit has  been  made,  according  to  the  terms  of  such  contract,  or  other  obligation,  after 
the  liability  thereon  shall  have  been  determined;  or  if  such  company,  corporation,  or 
association  has  ceased  to  do  business  within  this  state,  leaving  unpaid  any  such  liabil- 
ity, or  has  become  insolvent,  the  attorney  general  of  the  state,  on  behalf  of  the  super- 
intendent of  insurance,  or  such  other  officer,  shall,  upon  the  application  of  any  party 
entitled  to  participate  in  such  deposit,  or  the  proceeds  arising  therefrom,  commence  a 
civil  action  in  the  court  of  common  pleas  of  Franklin  county,  Ohio,  to  determine  the 
rights  of  all  parties  claiming  any  interest  in  such  deposit,  to  subject  such  deposit  to 
the  payment  or  satisfaction  of  all  liability  or  liabilities  and  to  distribute  said  fund 
among  the  persons  entitled  thereto,  making  the  company,  corporation,  or  association 
a  party  defendant.  Said  action  shall  be  brought  by  the  attorney  general,  but  for  such 
services  he  shall  receive  no  compensation  other  than  the  salary  provided  for  by  sec- 
tion 1284  of  the  Revised  Statutes  of  Ohio.     (May   10,  1902,  95  v.   480.) 

§  2.  NOTICE  TO  PARTIES  INTERESTED  IN  SAID  FUND;  PUBLICATION  OF; 
NOTICE  TO  COMPANY. —  That  upon  the  filing  of  such  petition,  the  superintendent  of 
insurance,  or  such  other  officer,  shall  cause  a  notice  thereof  to  be  published  for  six 
consecutive  weeks  in  three  papers  of  general  circulation  within  the  state  of  Ohio,  one 
of  which  shall  be  published  in  the  city  of  Columbus,  Ohio,  which  notice  shall  contain 
a  succinct  statement  of  the  object  and  prayer  of  said  petition,  and  notifying  all  per- 
sons claiming  to  have  any  interest  in  said  fund,  to  intervene  and  set  forth  such 
interest  therein,  and  when  they  are  required  to  answer  thereto.  A  copy  of  such  notice 
shall  be  forwarded  to  the  last  known  address  of  such  company,  corporation,  or  asso- 
ciation, by  the  clerk  of  said  court  as  provided  for  in  section  5048,  Revised  Statutes. 
Upon  the  hearing  of  said  cause,  such  order,  judgment,  or  decree  shall  be  entered  by 
the  court  as  may  be  deemed  just  and  equitable.     (May  10,  1902,  95  v.  481.) 

§  3.  PROCEDURE. —  The  code  of  civil  procedure  shall  govern  such  proceedings 
in  so  far  as  the  same  may  be  applicable.     (May  10,   1902,  95  v.  481.) 

§  4.  This  act  shall  take  effect  from  and  after  its  passage.  (May  10,  1902, 
95  v.  481.) 

§  1465-1.  TAX  FOR  ERECTION  OF  BUILDINGS  UPON  GROUNDS  OF  CEME- 
TERY ASSOCIATION. —  The  trustees  of  any  township  in  this  state,  wherein  their 
township  owns  a  burial-place  within  the  grounds  of  a  cemetery  association,  may  levy 
a  tax  not  exceeding  five  (5)  mills  upon  the  dollar  of  the  tax  duplicate  of  said  town- 
ship for  the  purpose  of  erecting  permanent  buildings  upon  and  within  such  cemetery 
grounds.     (April  20,   1893,  90  v.  218.) 

§  1465-2.  APPLICATION  OF  TAX. —  When  such  tax  shall  have  been  assessed 
and  collected  the  same  shall  be  paid  to  the  officers  of  said  cemetery  association,  and 
by  them  applied  to  the  erection  of  such  permanent  buildings  as  in  their  judgment 
may  be  requisite  for  the  accommodation  of  the  patrons  of  said  cemetery.  (April  20, 
1893,  90  v.  218.) 

§  1465-3.  BONDS  IN  ANTICIPATION  OF  TAX.—  The  officers  of  such  cemetery 
association  may  issue  and  sell  bonds  in  anticipation  of  said  tax;  such  bonds  to  bear 


Miscellaneous  Provisions.  39 

Cemetery  Associations,   §S   1469-1470-3. 

interest   at   a   rate    not   exceeding   six    (6)    per   cent,    per    annum.      (April   20,    1893, 
90  v.  218.) 

§  1469.  NO  LEVY  ON  LOTS.—  Any  lot  held  by  an  individual  in  a  cemetery 
shall,  in  no  case,  be  subject  to  be  levied  on  or  sold  on  execution.  (April  17,  1857,  54 
v.  187,  §  4;  S.  &  C.  228.) 

§  1470.  PENALTY  FOR  CORPSE  NUISANCE.— If  the  sexton  or  other  person 
in  charge  of  a  township,  or  other  cemetery  suffers  the  dead  to  remain  in  any  vault  or 
other  receptacle  until  the  same  become  offensive,  he  shall  be  liable,  on  the  complaint 
of  any  person  before  a  justice  of  the  peace  of  the  township,  to  a  fine  of  not  over  twenty 
dollars,  and  an  additional  penalty  of  five  dollars  for  every  day,  after  the  fine  afore- 
said, that  the  nuisance  is  continued.     (April  17,  1857,  54  v.  187,  §  5;  S.  &  C.  228.) 

§  1470-1.  TRUSTEES  OF  TOWNSHIPS  OR  CEMETERY  ASSOCIATIONS  MAY 
CAUSE  DEAD  BODIES  TO  BE  REMOVED  IN  CERTAIN  CASES.—  In  all  cases  in 
which  either  the  trustees  of  any  township  or  the  trustees  or  board  of  any  cemetery 
association,  incorporated  or  not,  in  Ohio,  or  both  combined,  shall  have  heretofore 
determined  or  shall  hereafter  determine  to  discontinue  the  use  of  any  burial  ground 
for  such  purposes,  and  there  shall  be  opened  for  public  use  a  burial  ground  in  the 
near  vicinity  thereof,  the  said  township  trustees,  or  the  said  trustees  or  board  of 
directors  of  such  cemetery  association,  or  both  combined,  may  order  and  provide  for 
the  removal  of  all  bodies  remaining  or  being  buried  within  said  burial  grounds  so  to 
be  discontinued,  and  for  the  removal  of  all  stones  and  monuments  marking  the  graves 
thereof,  and  for  the  reinterment  of  said  bodies  and  the  re-erection  of  such  stones  and 
monuments  in  some  suitable  and  public  ground  in  the  near  vicinity,  and  pay  for  the 
same  out  of  the  township  treasury;  provided,  however,  that  they  shall  cause  notice 
first  to  be  given  to  the  family,  friends  or  kindred  of  the  deceased,  if  known  to  such 
board  or  boards,  of  the  order  for  their  removal  and  of  the  time  within  which,  not  less 
than  thirty  days,  such  removal  must  be  made,  and  that  it  is  desired  that  such  removal 
be  made  by  the  friends  or  kindred  of  the  dead,  and  if  at  the  expiration  of  such  time 
such  removals  have  not  been  made,  such  boards  may  cause  them  to  be  made  as  afore- 
said.    (March  15,  1876,  73  v.  33.) 

§  1470-2.  MAY  SELL  BURIAL  GROUNDS  AT  PUBLIC  SALE;  PROVISO.— 
Township  trustees  and  trustees  and  boards  of  directors  of  cemetery  associations  are 
hereby  empowered  to  dispose  of  at  public  sale,  due  notice  thereof  being  first  given  in 
two  newspapers  of  the  county,  of  general  circulation,  if  there  be  so  many,  and  make 
conveyance  of  any  burial  grounds  under  their  control  that  they  may  have  determined 
to  discontinue  as  burial  grounds;  provided,  however,  that  possession  thereof  shall  not 
be  given  to  a  grantee  until  after  the  dead  therein  buried,  together  with  the  stones  and 
monuments,  shall  have  been  removed  as  hereinbefore  provided.  (March  15,  1876, 
73  v.  33.) 

§  1470-3.  DISINTERMENT,  ETC.,  OF  BODY  BURIED  IN  CEMETERY.— That 
the  trustees  or  board  of  any  cemetery  association,  or  other  officers  having  control  and 
management  of  a  cemetery,  shall  disinter  or  issue  a  permit  for  disinterment,  and 
deliver  any  body  now  buried,  or  that  may  hereafter  be  buried  in  such  cemetery  under 
their  control,  on  application  of  the  next  of  kin  of  the  deceased,  being  of  full  age  and 
sound  mind,  to  such  next  of  kin,  on  payment  of  the  reasonable  cost  and  expense  of 
the  disinterment;  provided,  however,  that  no  such  disinterment  shall  be  made  during 
the  months  of  April,  May,  June,  July,  August  and  September  of  any  year;  and  in  no 
event  where  the  deceased  has  died  of  a  contagious  or  infectious  disease,  and  not  until 
a  permit  has  been  issued  by  the  local  health  department.     (May  14,  1894,  91  v.  231.) 


Who  are  next  of  kin? 

Brothers  and  sisters  are  next  of  kin  of 
minor  children  deceased:  but  where  these 
brothers   and  sisters  are  minors,  the  parents 


are  next  of  kin  and  competent  to  make  the 
application. —  State  ex  rel.  v.  Shonhoft.  14  C. 
C.  354   (1897):  s.  c,  7  C.  D.  716. 


40 


Private  Corporations  in  Ohio. 


Price  of  Electric  Light  and  Gas,   §  2478. 


§  1470-4.  FORM  OF  APPLICATION.—  Such  application  shall  be  in  writing; 
shall  state  the  relation  of  the  applicants  to  the  deceased;  that  the  applicants  are  the 
next  of  kin  of  the  deceased,  of  full  age  and  sound  mind;  the  disease  of  which  the 
deceased  died;  where  the  body  shall  be  reinterred;  and  shall  be  subscribed  and  sworn 
to  before  some  officer  authorized  to  administer  oaths.     (May  14,  1894,  91  v.  231.) 

§  1470-5.  WRIT  OF  MANDAMUS. —  In  case  said  trustees  or  board  or  other  offi- 
cers in  charge  of  said  cemetery  shall  refuse  to  issue  said  permit  for  disinterment, 
there  shall  be  issued  by  the  court  of  common  pleas  of  the  county  wherein  the  ceme- 
tery is  situated,  a  writ  of  mandamus  requiring  said  trustees  or  board  or  other  officers 
to  issue  said  permit.     (May  14,   1894,  91  v.  231.) 

§  1471.  MAY  BE  REMOVED,  ETC. —  The  trustees  shall,  when  the  dead  laid  in. 
any  vault  or  other  receptacle  become  offensive,  on  complaint  of  any  householder  of 
the  township,  issue  an  order  forthwith  to  the  sexton  or  other  person  in  charge,  to  have 
the  same  immediately  interred;  and  in  case  the  interment  is  neglected  for  three  days 
after  the  complaint,  any  justice  of  the  peace  of  the  township  may  issue  his  written 
order  to  any  householder  of  the  township  to  inter  the  dead  at  the  expense  of  the  trus- 
tees, and  shall  allow  a  reasonable  charge  for  the  service  aforesaid.  (April  17,  1857, 
54  v.    187,   §    6;  S.  &  C.   228.) 

§  2478.  REGULATING  PRICE  OF  ELECTRIC  LIGHT,  ARTIFICIAL  AND 
NATURAL  GAS.—  The  council  of  any  city  or  village  in  which  electric  lighting  com- 
panies, natural  or  artificial  gas  companies,  or  gas  light  or  coke  companies  may  be 
established,  or  into  which  their  wires,  mains  or  pipes  may  be  conducted,  are  hereby 
empowered  to  regulate,  from  time  to  time,  the  price  which  said  electric  lighting, 
natural  or  artificial  gas,  or  gas  and  coke  companies  may  charge  for  electric  light  or 
for  gas  for  lighting  or  fuel  purposes,  furnished  by  such  companies  to  the  citizens, 
public  grounds  and  buildings,  streets,  lanes,  alleys,  avenues,  wharves  and  landing 
places;  and  such  electric  lighting,  natural  or  artificial  gas,  or  gas-light  and  coke  com- 
panies shall,  in  no  event,  charge  more  for  any  electric  light,  or  natural  or  artificial 
gas  furnished  to  such  corporation  or  individuals  than  the  price  specified  by  ordinance 
of  such  council;  and  such  council  shall  also  have  power  to  regulate  and  fix  the  price 
which  such  companies  shall  charge  for  rent  of  their  meters.  (March  1,  1889,  86  v. 
62;  March  4,  1887,  84  v.  39;  R.  S.  1880;  May  7,  1869,  66  v.  218,  §  415.) 


In  absence  of  ordinance  fixing  price, 
conipany  can  only  charge  reasonable 
price. 

If  the  authorities  fail  to  act  in  respect  to 
the  power  vested  in  them  by  this  section,  and 
an  individual  and  the  electric  light  company 
could  us  >i  agree  as  to  price,  on  appeal  to  the 
courts,  the  company  would  be  compelled  to 
furnish  light  at  a  reasonable  price. —  Cincin- 
nati, Hamilton,  etc.,  R.  R.  v.  Bowling  Green, 
57  Oh.  St.  336,  346  (1897).  See  §§  2494,  2495, 
and  notes  thereto. 

Company  chartered  prior  to  present 
constitiition,    subject   to    regulation. 

A  gas  company  chartered  prior  to  the  adop- 
tion of  the  presenl  constitution  is  neverthe- 
Less  subject  to  the  provisions  of  this  section, 
unless  the  right  to  fix  its  own  prices  is  ex- 
pressly  conferred  in  its  charter. —  Zanesville 
v.  Gas  Lighl  Co.,  57  Oh.  St.  1  (1889);  State 
ex  rel.  v.  Gas  Light  Co..  34  Oh.  St.  572.  See 
Cleveland  (las  Co.  v.  Cleveland,  35  W.  L.  B. 
155   (1891). 


Injunction  will  lie  to  compel  com- 
pany to  furnish  gas  at  prices  fixed  by 
ordinance. 

Gas   Light  Co.   v.  Zanesville,  57   Oh.  St.   35 

(1889). 

Presumption  in  favor  of  good  faith  of 
council. 

The  presumption  is  in  favor  of  the  good 
faith  and  validity  of  the  action  of  the  council 
in  passing  an  ordinance  regulating  price,  and 
this  presumption  can  only  be  overcome  by  the 
averment  of  issuable  facts  to  the  contrary.— 
See  State  ex  rel.  v.  Gas  Co.,  18  Oh.  St.  -262 
(  1868)  ;  approved  115  U.  S.  659,  and  118  U.  S. 
371;  State  ex  rel.  v.  Gas  Co..  37  Oh.  St.  45,  40 
(1881). 

Inadequacy     of     price;     what     must     be 

shown. 

On  the  absence  of  facts  showing  fraud  or 
bad  faith  on  the  part  of  the  council,  the  in- 
adequacy of  the  price  is  not  subject  to  inquiry. 
—  State  ex  rel.  v.  Gas  Co.,  37  Oh.  St.  45,  49 


M  [SCELLANEOUS    PROVISIONS. 


41 


Gas  Companies;   Use  of  Streets  by,   S§  2480-2481. 


(1881).  See  Cleveland  Gas  Co.  v.  Cleveland, 
35  W.  L.  B.  155  (1891).  Also  State  ex  rel.  v. 
Gas  Co.,  is  Oh.  St.  262  (1868);  approved,  115 
U.  S.  659,  and   118   U.  S.  371. 

Cannot  delegate  regulation  of  prices, 
etc. 

Does  not  authorize  a  contract  that  for  an 
indefinite  period  leaves  to  other  parties  the 
regulation  of  the  price  to  be  paid,  or  the 
quantity  or  quality  of  gas  that  shall  be  fur- 
nished.—  Cincinnati  Gas  Co.  v.  Avondale,  43 
Oh.  St.  257   (1885). 

Ordinance  fraudulently  passed,  or 
stipulating  unreasonable  price,  is 
void. 

An  ordinance  passed  for  a  fraudulent  pur- 
pose, and  fixing  the  price  at  a  rate  which  the 
council  knows  it  cannot  be  manufactured,  im- 
poses no  obligations  on  the  company  intended 


to  be  affected  t  herebj .      State  e     rel.        Ga 
Co.,  is  Oh.  St.  262  l  1868)  ;  approved,  1  15  I  ,  S 
659,  and   lis  r.  s.  371;  Cleveland  Gas  I  o.  v. 
Cleveland,  35  W.  !..   B.   155   i  1891  i. 

Sec  as  to  granting  exclusive  righl   to  indi- 
vidual   compa  ay,    and    t  he    Bubjeet    gi  w 
Ssi  2485  and  3550,  and  notes  thereto. 

See  as  to  regulal ion  of  prici  i el. 

v.  Gas  Co.,  3  0.  I  .  I  .  251  I  1888)  ;  9.  c,  I  leve- 
land  Gas  Co.  v.  (  leveland,  35  W.  L.  B.  L55 
1 1891 1.  Cited,  Findlay  Gas  Co.  v.  Findlay,  2 
0.  ('.  C.  237,  24:5   (1887). 

Extent   of  power   of   council. 

A  city  council  has  no  power  under  this 
and  the  next  section  to  compel  a  gas  com- 
pany, without  its  assent  to  the  ordinance,  to 
furnish  gas  in  a  manner  and  at  a  rate  entirelj 
at  the  option  of  the  consumer. —  Logan  Natu- 
ral Gas,  etc.,  Co.  v.  Chillicothe,  65  Oh.  St. 
180   (1901). 


§  2479.  MINIMUM  NOT  TO  BE  REDUCED  DURING  TERM  AGREED  UPON.— 
In  case  the  council  fixes  the  minimum  price  at  which  it  requires  any  company  to  fur- 
nish gas  to  the  citizens,  or  public  buildings,  or  for  the  purpose  of  lighting  the  streets, 
alleys,  avenues,  wharves,  landing  places,  and  public  grounds,  for  a  period  not  exceed- 
ing ten  years,  and  the  company  assents  thereto,  by  written  acceptance,  filed  in  the 
office  of  the  clerk  of  the  corporation,  it  shall  not  be  lawful  for  the  council  to  require 
such  company  to  furnish  gas  at  a  less  price  during  the  period  of  time  agreed  on,  not 
exceeding  ten  years,  as  aforesaid.     (May  7,   1869,  66  v.  218,  §  416.) 


Contract  for  longer  than  ten  years;  in- 
operative as  to  time  beyond  that 
period. 

Agreement  was  entered  into  between  a  city 
and  gas  company  by  which  the  latter  was  to 
furnish  gas  at  a  stipulated  price  for  a  period 
of  twenty  years.  City  performed  its  contract 
for  ten  years;  held  that  beyond  that  period 
the  contract  was  inoperative,  and  city  could 
regulate  price  thereafter. —  State  ex  rel.  v. 
Gas  Co.,  37  Oh.  St.  45  (1881).  See  Toledo  v. 
Gas  Co.,  5  O.  C.  C.  557   (1890). 

Applicable  to  natural   gas   companies. 

Toledo  v.  Gas  Co.,  5  O.  C.  C.  557   (1890). 


Agreement  unlimited  as  to  time,  valid 
for  ten  years  and  no  longer. 

Toledo  v.  Gas  Co.,  5  O.  C.  C.  557    (1890). 

This  section  limits  the  period  for  which 
municipalities  may  contract  for  the 
supply  of  gas  under    §   2491. 

Lima  Gas  Co.  v.  Lima,  4  O.  C.  C.  22  (1889). 

Contract  cannot  be  altered. 

When  a  council  has  fixed  the  price  of  gas 
under  this  section  and  the  company  has  ac- 
cepted the  same,  it  cannot  be  altered  without 
the  consent  of  the  company  within  ten  years. 
— ■  Logan  Natural  Gas,  etc.  Co.  v.  Chillicothe, 
G5  Oh.  St.  186  (1901). 


§  2480.  WHEN  COUNCIL  MAY  OCCUPY  STREETS  FOR  GAS  PURPOSES, 
ETC. —  If  such  companies  are,  at  any  time,  required  by  the  council  to  lay  pipes,  and 
light  any  street,  alley,  avenue,  wharf,  landing  place,  public  ground  or  building,  and 
refuse  or  neglect  for  six  months  after  being  notified,  by  authority  of  the  council,  to 
comply  with  such  requirement,  the  council  may  lay  pipes  and  erect  gas-works,  for 
lighting  such  streets,  alleys,  or  public  grounds,  and  all  other  streets,  alleys,  and  pub- 
lic grounds,  not  already  lighted;  and  such  gas  companies  or  gas-light  and  coke  com- 
panies, shall  thereafter  be  precluded  from  using  or  occupying  any  of  the  streets, 
alleys,  public  grounds  or  buildings,  not  already  furnished  with  gas  pipes  of  such 
companies;  and  the  council  may  open  any  street  for  the  purpose  of  conveying  gas  as 
aforesaid.     (May  7,  1869,  66  v.  218,  §  417.) 

§  2481.  GAS  COMPANIES  MAY  BE  PERMITTED  TO  OCCUPY  STREETS.— 
The  council  may,  at  any  time  after  the  default  mentioned  in  the  preceding  section, 
permit  such  gas  companies  to  use  and  occupy  the  streets,  alleys,  and  public  grounds  of 


42 


Private  Corporations  in  Ohio. 


Gas  Companies;.  Regulations  as  to,   §§  2482-2485. 


such  corporation,  for  the  purpose  of  lighting1  the  same,  and  furnishing  gas  to  the 
citizens  and  public  buildings.     (May  7,  1869,  66  v.  218,   §  418.) 

§  2482.  FORFEITURE  OF  CHARTER  FOR  NEGLECT  TO  FURNISH  GAS, 
ETC. —  A  neglect  to  furnish  gas  to  the  citizens,  and  other  consumers  of  gas,  or  to 
the  corporation,  by  any  company,  in  accordance  with  the  prices  fixed  and  established 
by  the  council,  from  time  to  time,  shall  forfeit  all  rights  of  such  company  under  the 
charter  by  which  it  has  been  established;  and  the  council  may  proceed  to  erect,  or,  by 
ordinance,  empower  any  person  to  erect  gas-works,  for  the  supply  of  gas  to  such  cor- 
poration and  its  citizens;  provided,  that  nothing  in  this  section  or  in  sections  twenty- 
four  hundred  and  seventy-nine  and  twenty-four  hundred  and  eighty,  shall  operate  to 
impair  or  affect  any  contract  heretofore  made  between  any  municipal  corporation  and 
any  gas-light  and  coke  company.     (May  7,  1869,  66  v.  219,  §  419.) 

Cited.  Toledo  v.  Gas    Co.,  5  O.  C.  C.  557  (1S90). 

§   2483.     A    TEMPORARY    FAILURE    SHALL    WORK    NO    FORFEITURE.— A 

temporary  failure  to  furnish  gas  shall  not  operate  as  a  forfeiture,  unless  such  failure 
is  through  the  neglect  or  misconduct  of  such  gas-light,  or  gas-light  and  coke  com- 
panies.    (May  7,    1869,   66  v.   219,   §   420.) 

§  2484.  COUNCIL  MAY  APPOINT  GAS  INSPECTOR;  HIS  DUTIES  AND  COM- 
PENSATION.—  The  council  of  any  corporation  in  which  gas-works  may  be  con- 
structed may  provide,  by  ordinance,  for  the  appointment  of  an  officer,  to  be  known  as 
inspector  of  gas,  whose  duty  it  shall  be  to  inspect  all  gas  and  gas-meters,  and  certify 
the  correctness  of  all  bills  against  consumers  of  gas,  make  photometric  tests,  and  per- 
form such  other  duties  as  may  be  prescribed  by  ordinance;  and  the  council  shall  fix 
his  compensation.  The  council  may  also  provide  for  the  inspection  and  testing  of 
meters  used  for  measuring  electric  current  for  electric  light,  power  or  other  purposes, 
furnished  by  any  individual  or  company  within  the  corporation,  and  may  prescribe  a 
suitable  charge  for  such  inspection  and  testing,  and  the  manner  of  collecting  the 
same.  (May  7,  1869,  66  v.  219,  5  421;  April  12,  1876,  73  v.  227,  §  4;  May  18,  1894, 
91  v.  300.) 

§  2485.  EXCLUSIVE  MONOPOLY  SHALL  NOT  BE  ALLOWED  TO  GAS  COM- 
PANIES.—  It  shall  not  be  lawful  for  any  council  to  agree  by  ordinance,  contract,  or 
otherwise,  with  any  person  or  persons,  for  the  construction  or  extension  of  gas-works 
for  manufacturing  or  supplying  the  corporation  or  its  inhabitants  with  gas,  which 
shall  give  or  continue  to  any  person  or  persons  making  such  agreements  with  the 
council  the  exclusive  privilege  of  using  the  streets,  lanes,  commons,  or  alleys,  for  the 
purpose  of  conveying  gas  to  the  corporation,  or  the  citizens  thereof,  or  which  shall 
deprive  the  council  of  the  right  to  designate  the  kind  of  meter  to  be  used  for  the 
correct  measurement  of  the  gas  furnished  under  such  agreement,  and  to  provide  for 
inspecting  or  regulating  the  same,  or  which  shall  not  specify  the  exact  quality  of  the 
gas  to  be  furnished,  and  reserve  to  the  ceuncil  the  right  to  enforce  an  exact  com- 
pliance with  such  specification,  under  such  uules  as  the  council  may  prescribe;  nor 
shall  the  council  make  any  such  agreement  which  shall  not  secure  to  the  council  the 
right  to  purchase  such  works,  and  all  the  appurtenances  belonging  thereto,  at  any  time 
within  the  existence  of  such  contract  or  agreement.     (May  7,  1869,  66  v.  219,  §  422.) 


No  exclusive  grant  without  express  au- 
thority. 

Municipality  cannot  grant  exclusive  right 
to  use  of  streets,  without  power  expressly 
granted,  <>r  so  far  necessary  to  the  proper 
powers  granted  as  to  be  free  from  doubt. — 
See  note  to  State  ex  rel.  v.  Hamilton,  under 
§  3550;  State  v.  Gas  Co.,  18  Oh.  St.  262 
(1868). 


Franchise      to       manufacture      includes 
right  to  purchase   gas. 

See  Hamilton  v.  Hamilton  Gas,  etc.,  Co.,  8 
N.  P.  610   (1901). 

Right  to  use  streets  is  a  franchise. 

The  right  to  use  the  street  for  the  laying 
of  the  pipes  to  convey  gas,  whether  in  the 
hands  of  an  individual  or  a  corporation,  is  a 


M  [SCELLANEOUS    PROVISIONS. 


43 


Railroads  in  Municipal  Corporation,  g  10  Mun.  Code. 


franchise,  and  must  directly  or  indirectly 
emanate  from  the  legislature. —  State  v.  Gas 
Co.,   18  Oh.  st.  262   (1868). 

"  Person    or    persons,"   include    corpora- 
tion. 

The  words  "  person  or  persons,"  as  used  in 
this  section,  include  corporations.— Cincin- 
nati Gas  Co.  v.  Avondale,  43  Oh.  St.  257 
(1885). 


Contract   legal,   though   it   fails    to    give 
right  to  purchase  franchise. 

A  contract    hd  wren  the  city  and  a  gas-light 
company  is  legal,  though  it   fails  to   jecu 

the  city  the  right  to  purchase  plant. —  Lima 

Gas  <  'O.    V.    Lima.    I   <>.(.(.    11    i  l  - 

Not    applicable     to     natural     gas     com- 
panies. 
Logan  Natural  Gas,  etc.,  Co.  v.  Chillicothe. 

65  I  Hi.   St.   186   (1901). 


§  2485a.  CONSOLIDATION  OF  COMPANIES  DOING  BUSINESS  IN  SAME 
MUNICIPALITY. —  Any  two  or  more  of  the  companies  mentioned  in  section  2478, 
which  are  doing  business  in  the  same  municipal  corporation,  or  which  are  incorpo- 
rated and  organized  for  the  purpose  of  doing  business  in  the  same  municipal  corpo- 
ration, may  consolidate  into  a  single  corporation  in  the  same  manner  and  with  the 
same  effect  as  provided  for  the  consolidation  of  railroad  companies  in  sections  3381, 
3382,  3383,  3384,  3385,  3386,  3387,  3388,  3390,  3391  and  3392  of  the  Revised 
Statutes,  and  any  and  all  acts  amendatory  and  supplementary  to  said  sections.  (April 
16,   1900,  94  v.  315.) 

§  2491.  CONTRACT  TO  SUPPLY  MUNICIPALITY  WITH  ELECTRIC  LIGHT 
OR  GAS. —  A  municipal  corporation  may  contract  with  such  company  for  supplying, 
with  electric  light,  natural  or  artificial  gas  for  the  purpose  of  lighting  (or  heating) 
the  streets,  squares  and  other  public  places  and  buildings  in  the  corporation  limits; 
but  this  section  shall  be  subject  to  the  restrictions  in  the  last  clause  of  section  thirty- 
five  hundred  and  fifty-one.  (March  1,  1889,  86  v.  62;  March  4,  1887,  84  v.  39; 
R.  S.   1880.) 


237  (18S7)  ;  Toledo  v.  Gas  Co.,  5  0.  C.  C.  557. 
571  (1890);  Bellaire  Goblet  Co.  v.  Findlav.  5 
0.  C.  C.  418.  4:24   (1890). 


Power   to   contract  limited  to  period  of 
ten  years  by  §  2479. 

Lima  Gas  Co.  v.  Lima.  4  0.  C.  C.  22  (1889). 
Cited,  Findlay  Gas  Co.  v.  Findlav.  2  O.  C.  C 

RAILROADS  IN  MUNICIPAL  CORPORATION. 

Municipal  Code,  §  10.  WHEN  MUNICIPAL  CORPORATIONS  MAY  APPROPRI- 
ATE RAILROAD  PROPERTY. —  All  municipal  corporations  shall  have  power  to 
appropriate,  enter  upon  and  hold,  real  estate  within  their  corporate  limits,  for  the 
following  purposes: 

1st.  For  opening,  widening,  straightening,  changing  the  grade  of  and  extend- 
ing streets  and  all  other  public  places,  and  for  this  purpose  the  corporation  may 
appropriate  the  right  of  way  across  railway  tracks  and  lands  held  by  railway  com- 
panies where  such  appropriation  will  not  unnecessarily  interfere  with  the  reasonable 
use  of  the  property  so  crossed  by  such  improvement;  and  for  obtaining  material  for 
the  improvement  of  streets  and  other  public  places.     *     *      * 


When  city  will  be  enjoined. 

The  appropriation  for  a  street  crossing  over 
railroad  tracks  will  not  be  interfered  with  if 
the  use  of  the  property  by  the  railroad  com- 
pany is  not  destroyed,  and  if  the  city  is  acting 
in  good  faith. —  Little  Miami  R.  R.  Co.  v. 
Dayton,  23  Oh.  St.  510  (1872);  Baltimore, 
etc',  R.  R.  Co.  v.  Bellaire,  4  W.  L.  B.  201 
(1872).  See  Railroad  Co.  v.  Hyde  Park,  4 
X.  P.  296   (1897);  s.  c,  7  Dec.  150. 

Appropriation    proceedings    under    this 
section,  pleading,  etc. 

See  Toledo,  etc..  Ry.  Co.  v.  Fostoria,  7  O.  C. 
C.  293  (1893)  ;  s.  c,  4  C.  D.  602;  Railroad  Co. 


v.  Hyde  Park.  4  X.  P.  290  (1897) 
156. 


Dec, 


City    cannot    appropriate    property    for 
use  of  railroad. 

See  Morehouse  v.  Norwalk,  6  W.  L.  B.  267 

(1880). 

Appropriation  of  railroad  property  for 
other  purposes. 

See  Railroad  Co.  v.  Belle  Centre.  48  Oh.  St. 
273   (1891). 

When  company  estopped  to  deny  right 
to  extension. 

Where  a  company  obtains  the  right  to  cross 
certain    streets    on    condition    that    when    it 


44 


Private  Corporations  in  Ohio. 


Railroads  in  Municipal  Corporation,   §§  2494-2495. 


becomes  necessary  to  open  or  extend  the  same 
it  shall  grant  a'  right  of  way,  it  is  estopped 
from  denying  the  right  to  make  such  opening 
or  extension. —  Chicago,  etc.,  R.  R.  Co.  v. 
Hamilton.  3  0.  C.  C.  455  (188S)  ;  s.  c,  2  C.  D. 
259. 


Appropriation  for  parks. 

See  Toledo,  etc.,  R.  R.  Co.  v.  Toledo, 
285   (1894);   s.  c,  5  Dec.  306. 


N.  P. 


Appropriation  for  ditches. 

Lake  Erie,  etc.,  Ry.  Co.  v.  Seneca  County, 
57  Fed.  944   (1893). 


§   2494.     COUNCIL  TO  PASS  ORDINANCE  TO  LIGHT  BRIDGE  OR  RAILWAY. 

—  When  it  is  deemed  necessary  by  the  council  of  any  city  or  village  to  have  any 
bridge  or  railway,  located  in  whole  or  in  part  in  such  corporation,  owned,  pos- 
sessed, or  operated  by  any  individual,  company,  association  or  corporation,  or  any 
portion  of  the  same,  lighted,  the  council  shall  pass  an  ordinance  for  that  purpose, 
requiring  the  individual,  company,  association,  or  corporation,  owning  possessing  or 
operating  the  same,  to  light  such  bridge  or  railway  within  a  specified  time:  Provided, 
that  it  shall  not  require  any  such  railway  or  portion  thereof  to  be  lighted  with  elec- 
tric arc  lights.     (May  7,  1902,  95  v.  419;  March  23,  1872,  69  v.  47,  §  429.) 


Constitutionality. 

This  act  is  a  police  regulation,  and  is  con- 
stitutional.—  Cincinnati,  etc.,  R.  R.  Co.  v. 
Sullivan.  32  Oh.  St.  152  (1877);  Cleveland, 
etc.,  Ry.  Co.  v.  St.  Bernard,  15  O.  C.  C.  588 
(1898);  s.  c,  8  C.  D.  385. 

Applicable  to  what  railroads. 

Although  the  company  operating  the  rail- 
road is  not  the  owner  or  the  lessee,  it  is  liable 
under  this  section.— Cincinnati,  etc.  v.  Bowl- 
ing Green,  57  Oh.  St.  336   (1899). 


Notice    of   intention   to   pass    ordinance. 

The  passage  of  an  ordinance  is  not  rendered 
nugatory  by  failure  of  the  village  to  notify 
the  company  of  its  intention. —  Cleveland, 
etc.,  Ry.  Co.  v.  St.  Bernard,  19  0.  C.  C.  299 
(1900)  ;  s.  c,  10  C.  D.  415. 

See  generally  Bowling  Green  v.  Railroad 
Co.,  10  C.  C.  63  (1894);  s.  c,  4  C.  D.  39; 
Railroad  Co.  v.  Bowling  Green,  9  0.  C.  C.  524 
(1895);  s.  c,  6  C.  D.  531;  Railroad  Co.  v.  St. 
Mary's,  14  O.  C.  C.  202  (1897);  Railroad  Co. 
v.  St.  Bernard,  15  O.  C.  C.  588  (1898)  ;  s.  c,  S 
C.   D.   385. 


§  2495.  CHARACTER  OF  THE  ORDINANCE.—  The  ordinance  shall  specify  the 
manner  in  which  such  bridge  or  railway  shall  be  lighted,  the  number  and  style  of 
lamp-posts,  gas-posts,  electric  lights  or  other  lights  and  fixtures  and  the  time  such 
lights  shall  be  kept  burning  in  each  twenty-four  hours.  (April  13,  1894,  91  v.  147; 
May  7,   1869,  66  v.  220,  §  430.) 


Constrtiction  of  ordinance. 

An  ordinance  under  this  section  should  re- 
ceive a  reasonable  construction.  The  instru- 
ment should  be  reasonably  certain  in  its 
requirements,  but  no  particular  form  of  words 
is  necessary.  It  will  not  be  held  defective  as 
failing  to  fix  a  specified  time  for  the  perform- 
ance of  such  requirement  by  the  company,  if 
its  language,  taking  the  ordinance  all  together, 
is  sufficiently  definite  to  inform  the  company 
that  such  lighting  is  required  to  be  done,  how 
and  when  it  is  to  be  done.— St.  Mary's  v. 
Lake  Erie,  etc.,  R.  R.  Co.,  60  Oh.  St.  136 
(1899). 

Reasonableness  of  ordinance. 

It  is  a  good  defense  that  the  ordinance  is 
unreasonable  in  that  the  light  required  will 
oli-cure  headlights  and  endanger  the  service 
of  the  company. —  Cleveland,  etc.,  Ry.  Co.  v. 
St.  Bernard,  15  0.  C.  C.  588  (1898);  s.  c,  8  C. 
D.  385. 

Number  of  hours. 

An  ordinance  prescribing  that  "the  number 
of  hours  that  said  electric  lights  shall  be  re- 
quired to  he  lighted  during  each  period  of 
twenty-four  hours  shall  be  the  same  as  the 
said  council  does  now  or  may  hereafter  re- 
quire for   electric  lamps  within  the  limits  of 


said  village  for  lighting  streets,  shall  be 
lighted,"  is  sufficiently  definite. —  Cincinnati, 
etc.,  R.  R.  Co.  v.  Bowling  Green,  57  Oh.  St. 
336   (1S97). 

Kind  and  manner  of  lighting. 

The  city  or  village  has  authority  to  pre- 
scribe the  kind  of  light  that  shall  be  em- 
ployed, and  where  an  electric  light  plant  is  in 
operation  within  such  city  or  village  lighting- 
its  streets  and  furnishing  light  to  its  inhab- 
itants, an  ordinance  is  not  unreasonable  be- 
cause it  requires  a  railroad  company  to  use 
the  particular  kind  of  lamp  and  illuminating 
material  in  use  for  lighting  the  streets  of  such 
city  or  village. —  Cincinnati,  etc..  R.  R.  Co.  v. 
Bowling  Green,  57  Oh.  St.  336   (1897). 

What  time  reasonable. 

A  requirement  that  the  company  proceed  to 
do  the  lighting  by  electricity  within  twenty 
days  after  notice  of  the  passage  of  the  or- 
dinance is  not  necessarilv  unreasonable. —  St. 
Mary's  v.  Lake  Erie,  etc.,  R.  R.  Co.,  60  Oh.  St. 
136  (1S99). 

Duty   of   electric   light   company  to    sell 
light. 

See  Cincinnati,  etc.,  R.  R.  Co.  v.  Bowling 
Green,  57  Oh.  St.  336  (1897). 


Miscellaneous  Provisions. 


45 


Railroads  in  Municipal  Corporation,   SS  2496-2499. 


§  2496.  NOTICE  OF  REQUIREMENT  TO  BE  GIVEN.—  Notice  of  such  require- 
ment to  light  any  bridge  or  railway  shall  be  given  at  least  twenty  days  before  pen- 
alty or  charge  shall  be  imposed  for  default,  and  such  notice  may  be  given  by  deliver- 
ing to  any  owner  or  part  owner,  or  any  person  having  possession,  charge  or  manage- 
ment of  such  bridge  or  railway,  a  written  or  printed  copy  of  the  ordinance,  provided, 
however,  that  when  such  ordinance  requires  the  lighting  of  a  railway,  service  of 
such  written  or  printed  copy  of  the  ordinance  upon  any  ticket  or  freight  agent  of 
such  railway  company  in  such  city  or  village,  and  if  there  be  no  such  ticket  or  freight 
agent  in  such  city  or  village,  upon  any  ticket  or  freight  agent  of  such  railway  com- 
pany in  the  county  wherein  such  city  or  village  is  located,  shall  be  deemed  sufficient 
and  shall  charge  the  person,  company,  corporation,  or  partnership,  owning  or  operat- 
ing such  railway  with  notice  of  the  passage  of  said  ordinance  and  the  requirements 
thereof.     (May  6,  1902,  95  v.  369;  May  7,  1869,  66  v.  220.) 

Notice  to  agent  not  sufficient. 

See  C,  O,  C.  &  St.  L.  Ry.  Co.  v.  I)e  Graft,  20  O.  C.  C.  710  (1899) ;   Dayton  v.  C,  C,  C.  & 
St.  L.  Ry.  Co.,  46  W.  L.  B.  287  (1901>. 

§  2497.  PROCEDURE  ON  FAILURE  TO  LIGHT  BRIDGE  OR  RAILWAY.—  If 
the  person,  company,  or  corporation,  owning,  possessing,  or  operating  such  railway  or 
bridge,  neglect  or  fail  to  do  such  lighting  in  conformity  with  the  provisions  of  the 
ordinance  for  twenty  days  after  notice  as  aforesaid,  the  council  may  immediately 
proceed  to  cause  the  lighting  to  be  done  at  the  expense  of  such  person  or  persons,  com- 
pany, or  corporations.     (March  23,  1872,  69  v.  47,  §  432.) 

§  2498.  ASSESSMENT  FOR  EXPENSE  OF  SUCH  LIGHTING,  ETC.—  The  coun- 
cil may  direct  the  manner  in  which  the  expense  of  lighting  such  bridge  or  railway 
shall  be  assessed  and  collected,  and  when  assessed,  the  amount  shall  be  a  debt  due 
against  and  payable  by  such  person,  company,  or  corporation,  and  shall  be  a  lien  to 
be  enforced  as  any  other  lien  on  such  bridge  and  the  land  on  which  the  same  is  built, 
or  upon  the  real  estate  of  the  railway  company  or  leasehold  interest  situate  or  being 
within  the  county  wherein  such  city  or  village  is  located.  (March  23,  1872,  69  v. 
47,  §  433.) 


Lien  for  expense. 

When,  on  default  of  the  railway  company, 
such  lighting  is  procured  to  he  done  by  the 
council,  the  expense  of  such  lighting  may,  by 
the  council,  he  assessed  or  declared  a  lien 
upon  any  of  the  real  estate  of  the  railway 
company  within  the  municipality. —  Cincin- 
nati, etc.,  R.  R.  Co.  v.  Sullivan,  32  Oh.  St. 
152  (1877). 

How  liability  enforced. 

The  liability  of  the  railway  company  to 
pay  such  expenses  can  only  be  enforced  by 
suit  or  action,  or  in  the  language  of  the  con- 
stitution, "  by  due  course  of  law."     It  is  not 

§  2499.  HOW  LIEN  MAY  BE  ENFORCED. —  The  charge  may  be  collected  or  the 
lien  enforced  in  the  manner  pointed  out  in  the  chapter  providing  for  the  assessment 
of  damages  and  expenses  for  making  public  improvements.  (May  7,  1869,  66  v. 
221,  §  434.) 


a  tax  or  an  assessment  in  the  nature  of  a  tax 
for  local  improvements,  and  cannot  therefore 
be  summarily  placed  upon  the  county  dupli- 
cate and  collected  as  a  tax  or  assessment 
proper. —  Cincinnati,  etc.,  R.  R.  Co.  v.  Sul- 
livan, 32  Oh.  St.  152    (1877). 

Evidence  of  expense. 

Where  an  assessing  ordinance,  fixing  the 
expense  of  such  lighting,  has  been  enacted  in 
conformity  with  this  section,  such  ordinance 
of  itself  furnishes  prima  facie  evidence  of  the 
expense  of  the  lighting. —  St.  Mary's  v.  Lake 
Erie,  etc.,  R.  R.  Co.,  60  Oh.  St.  136  (1899). 


pal  corporation,  in  a  court  of  competent  juris- 
diction.—  Cincinnati,  etc.,  R.  R.  Co.  v.  Sulli- 
van, 32  Oh.  St.  152  (1877). 


Mode  of  collection. 

The  mode  of  collecting  such  charge  or  en- 
forcing the  lien  thereof,  prescribed  by  this 
section,  is  by  suit  in  the  name  of  the  muniei- 

§  2500.  REGULATION  OF  RATE  OF  SPEED.— When  a  railroad  track  is  laid 
in  a  municipal  corporation,  the  council  may  by  ordinance  regulate  the  speed  of  all 
locomotives  and  railroad  cars  within  the  corporate  limits;  provided,  such  ordinance 


46 


Private  Corporations  in  Ohio. 


Street  Railway  Franchises,  §  1. 


shall  not  require  a  less  rate  cf  speed  than  four  miles  an  hour,  and  in  villages  having 
a  population  of  two  thousand  or  less  it  shall  not  be  fixed  at  a  less  rate  than  eight 
miles  an  hour;  and  the  corporate  authorities  may  by  civil  action,  recover  against  any 
engineer,  conductor,  or  company  violating  such  ordinance  a  sum  not  less  than  five 
dollars  nor  more  than  fifty  dollars  for  each  offense.     (April  27,  1877,  74  v.  132,  §  1.) 


Evidence  in  negligence  cases. 

In  an  action  to  recover  for  an  injury  alleged 
to  have  been  caused  by  cars  moving  on  a  rail- 
road track,  proof  that  the  company  was  mov- 
ing its  cars  in  violation  of  a  city  ordinance  at 
the  time  uie  injury  was  inflicted,  while  not 
sufficient  per  se  to  create  a  liability,  is  yet 
competent  to  go  to  the  jury  as  tending  to  show 
negligence  and  to  excuse  contributory  negli- 
gence.—  Meek  v.  Pennsylvania  Co.,  38  Oh.  St. 
632  (1883);  Hart  v.  Devereux,  41  Oh.  St.  565 
(1885)  :  Becker  v.  Cincinnati  Street  Rv.  Co., 
1  N.  P.  359   (1894);  s.  c,  2  Dee.  137;   Cincin- 


nati, etc.,  R.  R.  Co.  v.  Murphy,  18  0.  C.  C.  298 
(1899);  s.  c,  10  C.  D.  195;  Pennsylvania  Co. 
v.  Trainer,  18  0.  C.  C.  716  (1897)  ;  s.  c,  7  C.  D. 
507;  Railway  Co.  v.  Herrick.  49  Oh.  St.  25,  32 
(1892)  ;  Engleman  v.  Lake  Shore,  etc.,  Ry.  Co., 
34  W.  L.  B.  229    (1895). 

Power  to  regulate  rnnning  of  trains. 

See  Ravenna  v.  Pennsylvania  Co.,  45  Oh.  St. 
118  (1887). 

Gates,  watchmen,  etc. 

See  §§  247a,  247b,  and  notes. 


An  Act  Authorizing  Changes  and  the  Extensions  of  Existing  Street  Railway 
Routes,   and  in  Existing   Transfer  Systems. 
Be  it  enacted  by  the  General  Assembly  of  the  State  of  Ohio: 

§  1.  MUNICIPALITIES  MAY  AGREE  WITH  STREET  RAILWAY  COMPANY 
FOR  PAYMENT  OF  PERCENTAGE  OF  GROSS  RECEIPTS  IN  LIEN  OF  CAR 
LICENSE  FEES. —  That  it  shall  be  competent  for  the  board  of  public  service,  in  any 
city  of  the  first  grade  of  the  first  class,  and  for  the  council  or  other  legislative  body 
of  any  other  municipal  corporation,  by  and  with  the  consent  of  the  mayor,  to  agree 
with  any  street  railway  company  or  companies  operating  any  street  railway  route  or 
routes  in  such  city  or  other  municipal  corporation  for  the  payment  of  a  percentage  or 
additional  percentage  not  less  than  one  per  cent,  upon  its  gross  receipts  in  lieu  of  car 
license  fees  that  may  have  been  exacted  under  existing  grants,  and  upon  such  changes 
in  and  extensions  of  existing  street  railway  route  or  routes,  and  any  changes  in  or 
revision  of  any  prevailing  or  existing  system  of  transfers  between  such  routes  as  such 
board  of  public  service  or  council,  or  other  legislative  body  may  deem  to  be  to  the 
benefit,   convenience  or  advantage  of  the  public. 

NO  INCREASE  IN  RATE  OF  FARE;  CONSENTS  TO  CHANGES  OR  EXTEN- 
SIONS OF  EXISTING  ROUTES  NOT  NECESSARY,  WHEN.—  Provided,  that  nothing 
herein  contained  shall  be  construed  to  authorize  any  increase  in  the  rate  of  fare  by 
reason  of  any  such  changes,  revisions  or  extensions;  and  provided,  further,  that  when 
any  such  changes  in  or  extensions  of  existing  routes  are  made  so  as  to  run  in  whole 
or  in  part  over  and  along  existing  tracks  already  belonging  to  such  company  or 
companies,  it  shall  not  be  necessary  to  secure  and  file  the  consents  to  such  changes  or 
extensions  of  the  owners  of  the  property  abutting  on  the  streets  on  which  such  exist- 
ing tracks  are  located.  Provided,  further,  that  nothing  herein  contained  shall  be 
construed  to  authorize  the  extension  of  the  track  or  route  of  one  street  railway  com- 
pany over  those  of  any  other  street  railway  company,  otherwise  than  in  the  manner 
already  provided  by  law,  excepting  by  agreement  of  both  such  companies.  . 

NO  EXTENSION  IN  LENGTH  OF  FRANCHISE;  NOTICE  AS  TO  ORDINANCE 
TO  EXTEND  OR  CHANGE  ROUTE;  CONSENTS  NECESSARY  WHEN.— Provided, 
that  nothing  herein  contained  shall  authorize  the  extension  of  existing  street  railway 
routes  or  any  portion  thereof  over  and  along  existing  tracks  or  portions  thereof  for  a 
longer  period  than  the  terms  for  which  the  original  franchises  for  such  roads  or  routes 
existing  at  the  time  of  the  passage  of  this  act,  were  granted.  Provided,  further,  that 
no  resolution  or  ordinance,  providing  for  such  extension  or  change  of  route  or  routes, 
or  changes  or  revision  of  systems  of  transfers,  shall  be  passed  until  public  notice 
of  the  pendency  of  such  resolution  or  ordinance  shall  have  been  given  in  one  or  more 
of  the  daily  newspapers  published  in  said  municipal  corporation,   if  there  be  such. 


Miscellaneous  Provisions. 


47 


Street  Railway  Franchises,  §  2-§  29  Mun.  Code. 


and,  if  not,  then  in  one  or  more  newspapers  of  general  circulation  in  said  municipal 
corporation,  for  the  period  of  at  least  three  consecutive  weeks;  and  provided,  further, 
that  no  change  or  extension  of  any  existing  route  shall  be  granted  over  any  street 
or  streets  now  occupied  by  street  railway  tracks,  unless  the  consent  of  a  majority  of 
the  owners  of  property  abutting  on  such  street  or  streets  shall  have  been  first  obtained 
as  now  by  law  required.     (May  10,   1902,  95  v.   502.) 

§  2.  NO  SUBSEQUENT  CHANGE  IN  FIVE  YEARS.—  Whenever  any  street  rail- 
way route  or  routes  shall  have  been  changed  under  agreement  as  provided  in  the 
preceding  section  of  this  act,  no  subsequent  change  of  said  route  or  routes  shall  be 
made  within  a  period  of  five  years  thereafter.     (May   10,   1902,  95  v.   503.) 

§  3.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage.  (May 
10,   1902,  95  v.  503.) 

§  2501.  TERMS  AND  CONDITIONS  OF  CONSTRUCTION  AND  OPERATION 
TO  BE  FIXED  BY  COUNCIL;  RENEWAL  OF  GB  ANT.— No  corporation,  individual 
or  individuals  shall  perform  any  work  in  the  construction  of  a  street  railroad,  until 
application  for  leave  is  made  to  the  council  in  writing,  and  the  council  by  ordinance 
shall  have  granted  permission,  and  prescribed  the  terms  and  conditions  upon,  and 
the  manner  in  which  the  road  shall  be  constructed  and  operated,  and  the  streets  and 
alleys  which  shall  be  used  and  occupied  therefor,  but  the  council  may  renew  any  such 
grant  at  its  expiration  upon  such  conditions  as  may  be  considered  conducive  to  the 
public  interest.  (April  21,  1896,  92  v.  206;  March  4,  1887,  84  v.  40;  R.  S.  1880; 
June  12,  1879,  76  v.  156,  §  4;  May  7,  1869,  66  v.  217,  §  411.) 

What  is   sufficient  application. 

The  presentation  of  the  ordinance  for  a 
street  railway  grant  to  a  common  council  is  a 
sufficient  written  application  therefor. —  San- 
fleet  v.  Toledo,  10  0.  C.  C.  460  (1893);  s.  c.. 
S  C.  D.  711. 

Application    by    corporation    before    or- 
ganization. 

A  grant  to  a  corporation  is  not  invalid  he- 
cause  the  application  to  the  city  for  a  fran- 
chise was  filed  hefore  the  articles  of  incorpo- 
ration of  the  railway  company  reached  the 
secretary  of  state. — Sloane  v.  People's,  etc.. 
Ry.  Co.!  7  0.  C.  C.  84  (1891):  s.  c,  3  C.  D. 
674. 

Application  in  alternative. 

An  application  to  a  city  council  for  leave  to 
construct  a  street  railway  may  designate  a 
portion  of  the  proposed  route  in  the  alterna- 
tive.—Simmons  v.  Toledo,  5  O.  C.  C.  124 
(1889);  s.  c,  3  C.  D.  64. 

Application  by  trustee. 

The  city  may  entertain  an  application  from 
a  person  describing  himself  as  trustee. — 
Simmons  v.  Toledo,  5  0.  C.  C.  124  (1889); 
s.  c.  3  C.  D.  64. 

Extension  of  term. 

An  extension  of  the  term  of  a  grant  is  not 
invalid  because  made  without  competitive  bid- 
ding, notice  or  consents. —  Clement  v.  Cincin- 
nati,   16    W.    L.    B.    355    (1886);    Raskins    v. 


Cincinnati,  etc.,  R.  R.  Co.,  4  W.  L.  P..  1126 
(1880)  ;  State  ex  rel.  v.  East  Cleveland  P.  R. 
Co.,  0  O.  C.  C.  318   (1891)  ;  s.  c,  3  C.  D.  471. 

Renewal  of  grant. 

A  street  railway  grant  may  be  renewed  be- 
fore its  expiration. —  Cincinnati  v.  Cincinnati 
Ry.  Co.,  31  W.  L.  B.  308   -  L894). 

See  generally  as  to  renewal.  Louisville  Trust 
Co.  v.  Cincinnati,  76  Fed.  296  (1896);  3.  <•.. 
73  Fed.  716;  Louisville  Trust  Co.  v.  Cincin- 
nati, etc.,  Ry.  Co.,  78  Fed.  307   (1897). 

Same  subject. 

The  consent  of  abutting  lot-owners  upon  a 
street  occupied  by  a  street  railroad  is  not  a 
condition  precedent  to  the  right  of  the  council 
to  grant  a  renewal  of  the  franchise  of  -uch 
street  railroad  company. — ■  Pelton  v.  East 
Cleveland  R.  R.  Co..  22  W.  L.  B.  67   (18S9). 

Cars  without  conductors. 

See  as  to  enforcement  of  ordinance  requir- 
ing companv  to  furnish  conductors,  Thora- 
lii'll  v.  Cincinnati,  4  O.  C.  C.  354  (1890)  :  s.  c, 
2  C.  D.  592. 

See  Municipal  Code.  §  28. 

Violation      of     terms      and      conditions, 
remedy. 

The  city  may  have  a  remedy  by  action  on 
the  contract  or  the  state  may  proceed  by 
way  of  quo  warranto. —  State  ex  rel.  v.  Toledo 
Ry.  &   l.i-ln   <  o.,  23  O.  C.  C.  603   (1902). 


Municipal  Code,  §  29.  STREET  RAILWAY  FRANCHISES;  STREET  RAIL- 
WAY FRANCHISES. —  The  right  so  to  construct  or  extend  such  railway  as  provided 
in  section  3437  Revised  Statutes  of  Ohio,  within  or  beyond  the  limits  of  a  municipal 
corporation  can  be  granted  only  by  the  council  thpr"°f,  by  ordinance,  and  the  right 


48 


Private  Corporations  in  Ohio. 


Street  Railway  Franchises,  §  30  Mun.  Code. 


to  construct  such  railway  within  or  beyond  the  limits  of  an  unincorporated  village 
can  be  granted  only  by  the  county  commissioners,  by  order  entered  on  their  journal; 
raid  pfter  said  grant  or  renewal  of  any  grant  shall  have  been  made,  whether  by  gen- 
eral or  special  ordinance,  or  by  the  order  of  the  county  commissioners,  neither  the 
municipal  corporation  nor  the  county  commissioners  shall  release  the  grantee  from 
any  obligations  or  liabilities  imposed  by  the  terms  of  said  grant  or  renewal  of  a 
grant  during  the  term  for  which  said  grant  or  renewal  shall  have  been  made.  Pro- 
vided, that  no  authority  shall  be  given  by  such  municipal  or  county  authorities,  to 
occupy  the  track,  whether  single  or  double,  or  other  structure,  of  any  existing  street 
railways  for  more  than  one-eighth  of  the  entire  distance  between  the  termini  of  the 
route,  as  actually  constructed,  operated  and  run  over,  of  the  company  or  individual 
to  whom  such  grant  is  made;  except,  however,  in  granting  permission  to  extend  exist- 
ing routes  in  cities,  such  cities,  and  the  companies  owning  such  route,  shall  have 
the  same  rights  and  powers  they  have  under  the  laws  and  contracts  now  existing; 
and  that  no  extension  of  any  street  railroad  located  wholly  without  any  such  city, 
or  of  any  street  railroad  wherever  located,  which  has  been  or  shall  be  built  in  pur- 
suance of  a  right  obtained  from  any  source  or  authority  other  than  a  municipal 
corporation,  shall  be  made  within  the  limits  of  such  city,  except  as  a  new  route,  and 
subject  to  the  provisions  of  section  2501  of  the  Revised  Statutes  of  Ohio  and  section 
30  of  this  act. 

Municipal  Code,  §  30.  PUBLICATION,  BIDS,  CONSENTS,  TERM,  RELEASE  OF 
OBLIGATIONS. —  Nothing  mentioned  in  section  2501  of  the  Revised  Statutes  of 
Ohio  shall  be  done;  no  ordinance  or  resolution  to  establish  or  define  a  street  railroad 
route  shall  be  passed,  and  no  action  inviting  proposals  to  construct  and  operate  such 
railroad  shall  be  taken  by  the  council;  and  no  ordinance  for  the  purpose  specified  in 
section  2501  of  the  Revised  Statutes  of  Ohio  shall  be  passed  until  public  notice  of  the 
application  therefor  has  been  given  by  the  clerk  of  the  corporation  once  a  week,  for 
the  period  of  at  least  three  consecutive  weeks  in  one  or  more  of  the  daily  papers,  if 
there  be  such,  and  if  not,  then  in  one  or  more  weekly  papers  published  in  the  corpo- 
ration; and  no  such  grant  as  mentioned  in  section  2501  of  the  Revised  Statutes  of 
Ohio  shall  be  made,  except  to  the  corporation,  individual  or  individuals,  that  will 
agree  to  carry  passengers  upon  such  proposed  railroad  at  the  lowest  rates  of  fare,  and 
shall  have  previously  obtained  the  written  consent  of  a  majority  of  the  property 
holders  upon  each  street  or  part  thereof,  on  the  line  of  the  proposed  street  railroad, 
represented  by  the  feet  front  of  the  property  abutting  on  the  several  streets  along 
which  such  road  is  proposed  to  be  constructed;  provided,  that  no  grant  nor  renewal 
of  any  grant  for  the  construction  or  operation  of  any  street  railroad,  shall  be  valid  for 
a  greater  period  than  twenty-five  years  from  the  date  of  such  grant  or  renewal;  and 
after  such  grant  or  renewal  of  a  grant  is  made,  whether  by  special  or  general  ordi- 
nance, the  municipal  corporation  shall  not,  during  the  term  of  such  grant  or  renewal, 
release  the  grantee  from  any  obligation  or  liability  imposed  by  the  terms  of  such 
grant  or  renewal  of  a  grant. 

Other  statutes. 

See  §  3437  et  seq. 


Publication  of  notice. 

Publication  of  notice  of  an  application  on 
the  same  day  of  the  week  for  three  consecutive 
weeks  in  a  daily  newspaper  published  and  of 
general  circulation  in  such  city  is  sufficient  in 
.;  case  where  the  council  proceeding  under 
such  notice  passes  nn  ordinance  granting  the 
right,  notwithstanding  a  general  ordinance  of 
the  city  required  such  notices  to  be  published 
in  two  dailv  papers  of  the  citv. —  Simmons  v. 
Toledo,  5  0.  C.  C.  124  (1889)  ;  s.  c.  3  C.  P.  64. 
nith  v.  Columbus,  etc.,  Ry.  Co.,  8  N.  P. 
1    (1900). 


When  publication  should  be  made. 

If  the  notice  of  the  application  is  to  be 
given  before  the  passage  of  the  first  ordinance' 
or  resolution,  to  merely  establish  or  define  a1 
route,  and  inviting  proposals  for  the  construc- 
tion thereof,  on  certain  terms,  it  is  not  so  far 
jurisdictional  in  its  character  as  to  make  the 
first  ordinance  or  resolution  invalid  if  notice 
is  not  given,  and  if  such  notice  is  given  before 
the  passage  of  the  final  ordinance  it  will  be 
sufficient,  but  if  not  so  given,  the  final  ordi- 
nance will  be  invalid. —  Avdelott  v.  Cincinnati. 
11  O.  C.  C.  11  (1893):  s.'c,  4  C.  P.  4R6.  See 
Sloane  v.  People's,  etc.,  Ry.  Co.,  7  0.  C.  C.  S4 
(1891);   s.  c.  3  C.  P.  074;   Hamilton  v.  C.   & 


MlSCELLA  N  KOUS    PROV  I SIONS. 


49 


Street  Railway  Franchises,   §  30  Mun.   Code. 


II..  etc.,    Ry.  Co.,  5  N.  P.  457    (1898);   s.  c, 
8  Dec.   174." 

Ordinances  regulating  publication,  etc. 

Where  the  council  has  enacted  ;i  general 
ordinance  regulating  publication,  etc.,  it  may 
make  a  granl  without  reference  to  such  or- 
dinance bv  following  the  general  statutes. 
See  Aydelott  v.  Cincinnati,  11  0.  C.  C.  11 
(1893);  9.  c,  4  ('.  I).  486;  Simmons  v.  Toledo. 
5  0.  C.  C.  124  (1S89)  ;  s.  c,  3  C.  D.  04. 

Who  should  order  publication. 

A  grant  is  not  invalid  because  the  city  clerk 
caused  the  application  and  invitation  for  bids 
to  be  published  without  any  action  having 
been  taken  by  the  city  council  directing  such 
publication  where  the  council  afterwards 
recognizes  and  acts  upon  such  application. — 
Sloane  v.  People's,  etc.,  Ey.  Co.,  7  O.  C.  C.  84 
(1891);  s.  c.,  3  C.  D.  674. 

Mandamus    to    compel    advertisement. 

Mandamus  will  not  lie  upon  the  relation  of 
a  citizen  and  owner  of  land  abutting  upon  a 
street  through  which  a  line  of  railroad  is  to 
pass,  if  constructed,  to  compel  the  city  clerk 
to  make  the  advertisement  required  of  him  by 
the  ordinance  when  he  wrongfully  refuses  or 
neglects  so  to  do. —  State  ex  rel.  v.  Henderson, 
38   Oh.    St.   644    (18S3). 

Bids,  acceptance. 

A  city  council  may  adopt  reasonable  regula- 
tions as  to  the  form  of  bids  and  as  to  the  time 
when  bidding  shall  close,  but  in  the  absence 
of  such  regulations,  if  the  application  is  pub- 
lished for  the  time  required  by  the  statute, 
and  the  council  acting  in  good  faith,  after  the 
expiration  of  that  time,  make  the  grant  to  the 
only  bidder  therefor,  and  whose  bid  is  reason- 
able, the  exercise  of  such  franchise  will  not  be 
enjoined  on  account  of  irregularities  on  the 
part  of  the  council  in  opening  and  considering 
such  bid. —  Sloane  v.  People's,  etc.,  Ry.  Co.. 
7  0.  C.  C.  84  (1891) ;  s.  c,  3  C.  D.  674. 

Irregularities  in  bids. 

Informalities  in  bids  which  do  not  go  to  the 
substance  of  the  bid  are  to  be  disregarded. — 
Compton  v.  Johnson,  9  0.  C.  C.  532  (1895); 
s.  c,  6  C.  D.   110. 

Good   faith    of   bidder  —  rules   to    deter- 
mine. 

See  Gallagher  v.  Johnson,  30  W.  L.  B.  139 
(1893);  s.  c.,  31  W.  L.  B.  24;  Compton  v. 
Johnson,  9  0.  C.  C.  532  (1895);  s.  c,  6  C.  D. 
110. 

Bidder's  bond  —  what  is  valid. 

See  Gallagher  v.  Johnson,  30  W.  L.  B.  139 
(1893);  Compton  v.  Johnson,  9  O.  C.  C.  532 
(1895);    s.   c,   6   C.   D.    110. 

Bidder's   bond  —  power   of   council. 

See  Sloane  v.  People's,  etc.,  Ry.  Co..  7  O.  C. 
C.  84  (1891);  s.  c,  3  C.  D.  674;  Simmons  v. 
Toledo,  5  0.  C.  C.  124  (1889)  ;  s.  c,  3  C.  D.  64. 

LAW    GOV.    PRIV.    COR. —  d. 


Who  is  lowest  bidder. 

The  granl  of  a  franchise  to  one  whom  the 
council  bas  in  good  faith  found  and  deter- 
mined to  be  the  bidder  offering  to  carrj  pas- 
sengers ai  the  lowesl  rates  oi  fare,  will  no1  be 
held  invalid  withoul  clear  proof  that  the  coun- 
cil erred  in  its  finding.— Simmons  v.  Toledo, 
5  0.  C.  C.  12-1   (1889)  :  b.  c,  3  C.  D.  64. 

Same  subject. 

The  question  whether  a  valid  contrad  has 
been   made  by  the  i  i1  pa  rty  for  t  he 

construction    and   operation   of   a    streel    rail- 
road route  under   this   section   depend-   upon 
the  fact  whether  such  party  in  his  bid  a 
to  carry  passengers  a1  the  lowesl  ra1 

-  Knorr  v.  Miller,  5  0.  C.  C.  609  ( 1891 1 ; 
3  C.  D.  297. 

When     ordinance     inviting     bids     takes 
effect. 

See  Sloane  v.  People's,  etc.,  Ry.  Co.,  7  O.  C. 
C.  84,  93   (1891);  s.  c,  3  C.  D.  674. 

Power  of  council  over  bids. 

Simmons  v.  Toledo,  5  O.  C.  C.  124  (1889); 
s.  c,  3  C.  D.  64. 

Lowest  rates  of  fare  —  what  are. 

The  council  is  not  authorized  to  make  a 
grant  to  the  company  which  will  bid  "  the 
lowest  price  of  commutation  tickets  in  pack- 
ages," and  where  an  ordinance  contains  such 
unauthorized  provisions,  and  they  are  so  con- 
nected with  authorized  provisions  that  their 
separation  is  impracticable,  the  whole  or- 
dinance is  invalid. —  Cincinnati  Street  R.  R. 
Co.  v.   Smith,  29  Oh.   St.   291    (1876). 

Right  to  fix  rates  of  fare. 

Though  a  grant  may  be  made  fixing  rates  of 
fare,  there  is  no  power  in  a  city  after  a  grant 
is  made  to  change  the  rates. —  See  Cleveland 
City  Ry.  Co.  v.  Cleveland,  94  Fed.  385   (1899). 

Duration  of  term. 

A  city  has  the  right  to  limit  the  life  of  a 
franchise,  and  the  fact  that  the  life  of  a 
corporation  is  for  an  unlimited  term  does 
not  abridge  its  capacity  to  accept  a  grant  of 
a  street  franchise  for  a  shorter  term. —  Louis- 
ville Trust  Co.  v.  Cincinnati.  76  Fed.  296 
(1896);  s.  c,  10  0.  F.  D.  112;  s.  c,  73  Fed. 
716;   s.   c,   8   0.  F.   D.   704. 

Grant  for  more  than  twenty-five  years. 

When  a  grant  is  made  for  a  period  greater 
than  twenty-five  years,  it  will  be  valid  to  the 
extent  of  twenty-five  years. —  Sommers  v. 
Cincinnati,  8  A.  L.  Pec. ' 012   (1880). 

Expiration  —  injunction    pending    nego- 
tiations for  new  franchise. 

Where  the  franchise  of  a  company  has  ex- 
pired, and  it  has  been  perpetually  enjoined 
from  operating,  but  the  operation  of  the  de- 
cree has  been  suspended  for  a  time,  the  court 
will  not  take  charge  of  the  road  and  operate 


50 


Private  Corporations  in  Ohio. 


Street  Railway  Franchises,  §  31  Muri.  Code-§  2503. 


it  by  a  receiver,  but  will  enjoin  interference 
•with  the  operation  while  the  decree  is  sus- 
pended.—  Cincinnati  v.  Cincinnati,  etc.,  Ry. 
Co.,  4  N.  P.  187;  s.  c,  7  Dec.  2  (1S96);  s.  c., 
4    \.   P.   57,   6  Dec.   81. 

Route  through  private  property — effect. 

See  Harrison  v.  Mt.  Auburn,  etc.,  Ry.  Co., 
17  W.  L.  B.  205  (1887). 

Line  may  fork  a^i  he  hut  one  route. 

See  Aydelott  v.  Cincinnati,  11  O.  C.  C.  11 
(1893)  ;'s.  c,  4  C.  D.  486. 

Effect  of  §  3439  on  this  section. 

See  Neare  v.  Mt.  Auburn,  etc.,  Ry.  Co.,  29 
W.  L.  B.  171,  54  Oh.  St.  153   (1896). 

Council  cannot   delegate  authority. 

A  grant  of  a  street  railway  franchise  must 
be  made  directly  to  the  successful  bidder,  and 
authority  to  make  a  grant  cannot  be  delegated 
to  any  officer  or  board. — State  ex  rel.  v.  Bell, 
34  Oh.  St.  194    (1877). 

Signature  of  mayor  not  necessary. 

See  Aydelott  v.  Cincinnati,  11  O.  C.  C.  11 
(1893)  ;  s.  c,  4  C.  D.  486;  State  ex  rel.  v.  Hen- 
derson, 38  Oh.  St.  644   (1883). 

"What  is  release  of  ohligation. 

A  modification  of  a  contract  between  the 
city  and  a  company,  made  in  good  faith,  for 
the  better  accommodation  of  the  public,  is  not 
void  by  virtue  of  this  section  as  a  release  from 
an  obligation,  although  in  consideration  of 
more  rapid  transit  at  a  greater  rate  of  fare. 
—  See  Cincinnati,  etc.,  Ry.  Co.  v.  Cincinnati, 
8  K  P.  80   (1900);   Clement  v.  Cincinnati,  16 


W.  L.  B.  355  (1886)  ;  Cincinnati  v.  Cincinnati, 
2  N.  P.  298  "(1893);  s.  c,  2  Dec.  408:  (eve- 
land   City   Ry.   Co.  v.  Cleveland,  94  Fed.  385 

(1S99). 

Illegal  contract  hy  company  with  coun- 
cilman. 

A  contract  with  a  member  of  a  city  council 
to  assist  a  company  in  procuring  a  right  of 
way  over  city  streets  is  against  public  policy 
and  will  not  be  enforced. —  Railroad  Co.  v. 
Morris,  10  O.  C.  C.  502  (1895)  ;  s.  c,  6  C.  D. 
640. 

Cities  may  require  companies  to  employ 
conductors. 

Municipal  Code,  §§  8-28. 

Validity  and  effect  of  speed  ordinances. 

See  Lewis  v.  Street  Ry.  Co.,  10  Dec.  53 
(1900)  ;  Ulrich  v.  Street  Ry.  Co.,  10  O.  C.  C. 
635  (1895);  s.  c,  5  C.  D.  Ill;  Becker  v. 
Street  Ry.  Co.,  1  N.  P.  359  (1894);  s.  c,  2 
Dec.  137. 

Rule  where  there  is  no  speed  ordinance. 

Where  no  speed  ordinance  has  been  enacted 
the  speed  must  be  reasonable  in  view  of  all 
the  facts  and  circumstances. —  Cincinnati 
Street  Ry.  Co.  v.  Lewis,  23  0.  C.  C.  127  (1901). 

Reading  ordinance. 

See  Smith  v.  Columbus,  etc.,  Ry.  Co.,  8  N. 
P.  1    (1900). 

Injunction  to  restrain  citv  and  com- 
pany from  carrying  ordinances  into 
effect,  when  granted. 

See  Ross  v.  Columbus,  8  N.  P.  420   (1901). 


Municipal  Code,   §  31.     RIGHTS  OF  ABUTTING  OWNERS;  CURATIVE  ACT.— 

Nothing  herein  contained  shall  be  construed  to  impair  the  rights  of  abutting  prop- 
erty owners,  where  unnecessary  or  additional  burdens  are  placed  upon  the  streets 
by  operation  of  any  grants  herein  authorized  to  be  made,  and  nothing  in  this  act,  or 
any  part  thereof,  shall  be  construed  to  impair  or  enlarge  the  rights  of  any  corpora- 
tion now  using  the  streets  of  any  municipality  in  the  state  under  authority  of  any 
law  now  or  hereafter  in  force;  but  all  unexpired  grants  of  rights  or  franchises  here- 
tofore made  by  any  municipality,  in  accordance  with  the  provisions  of  any  statute 
or  act  of  the  General  Assembly  existing  at  the  time  when  they  were  made,  and  which 
have  been  accepted  and  where  money  has  been  expended  in  good  faith  on  account 
thereof,  are  hereby  regranted  for  such  unexpired  portion  of  the  respective  periods  of 
the  original  grants  in  accordance  with  the  terms  and  conditions  of  the  same;  any 
law,  or  part  of  law,  to  the  contrary  notwithstanding. 

5  2503.     GRADE  OF  STREETS  WHEN  STREET  RAILROAD  IS  CONSTRUCTED. 

—  Before  any  street  railroad  shall  be  constructed,  on  any  street  less  than  sixty  feet 
in  width,  with  a  roadway  of  thirty-five  feet,  or  under,  the  council  shall  provide,  that 
the  crown  of  the  street  shall  he  made  a  nearly  flat  uniform  curve,  from  curb  to  curb, 
without  ditch  gutters,  and  in  such  manner  as  to  give  all  wheeled  vehicles  the  full 
use  of  the  roadway  up  to  the  face  of  the  curb,  after  the  plan  of  the  streets  in  the  cities 
of  Philadelphia  and  New  York.  And  on  any  street,  whenever  the  tracks  of  two  street 
railroads,  or  of  a  street  railroad  and  a  steam  railroad,  cross  each  other  at  a  convenient 
grade,  the  crossings  shall  he  made  with  crossing-frogs  of  the  most  approved  pattern 


M ISCELLA N  E<  >US    PROVISIONS. 


51 


Street  Railway  Franchises,  SS  2504-2505. 


and  materials  and  kept  up  and  in  repair  at  the  joint  expense  of  the  companies  owning 
said  tracks.     (April  20,  1881,  78  v.  296;  R.  S.   1880;  May  7,  1867,  66  v.  217.) 


Duty  to  renew. 

A  compliance  witl  the  terms  of  this  section 
on  one  occasion  does  tmi  absolve  the  com- 
panies so  complying  from  the  duty  of  using 
other  crossing-frogs  and  materials  when  the 
latter  are  subsequently  found  to  he  of  a  more 
approved  pattern  or  character. —  Cincinnati, 
etc.,  Ely.  Co.  v.  Cincinnati,  etc.,  R.  R.  Co.,  32 
W.   L.   B.  4    (1894). 


Constitutionality. 

This  section,  so  far  as  concerns  crossing- 
frogs,  is  a  valid  exercise  of  the  police  power  of 
the  state. —  Cincinnati,  etc.,  Ely.  Co.  v.  Cincin< 
nati,  etc.,  R.  R.  Co.,  32  W.  L.B.  4  (1894). 

Applicable  to  what   companies. 

The  provisions  of  this  section  apply  to  all 
such  companies,  whether  their  lines  have  been 
constructed     before    or    after     its     passage. 
Cincinnati,   etc.,   Ry.   Co.   v.    Cincinnati,   etc., 
R    R.  Co.,  32  W.  L.  B.  4   (1894). 

§  2504.    PAVEMENT  OF  STREETS  WHERE  RAILROADS  ARE  CONSTRUCTED; 

PROVISO. —  The  council  may  require  any  part  or  all  of  the  track,  between  the  rails 
of  any  street  railroad  constructed  within  the  corporate  limits,  to  be  paved  with  stone, 
gravel,  boulders,  or  the  Nicholson  or  other  wooden  or  asphaltic  pavement,  as  may  be 
deemed  proper,  but  without  the  corporate  limits,  paving  between  the  rails  with  stone, 
boulders,  or  the  Nicholson  or  other  wooden  or  asphaltic  pavement  shall  not  be 
required;  provided,  that  in  cities  of  the  second  grade  of  the  first  class,  the  council 
may  require  of  any  street  railroad  company  to  pave  and  keep  in  constant  repair,  six- 
teen feet  for  a  double  track  or  seven  feet  for  a  single  track,  all  of  which  pavement 
shall  be  of  the  same  material  as  the  balance  of  the  street  is  paved  with.  (April  21, 
1890,  87  v.  246;  May  7,  1867,  66  v.  217,  §  414.) 


mav  be  recovered. —  Columbus  v.  Street  R.  R. 
Co.',  45  Oh.  St.  98  (1887).  Sec  Cincinnati, 
etc.,    Ry.    Co.    v.    Carthage,    36    Oh.    St.    631 

(1881). 

Franchises  and  tracks  subject  to  assess- 
ment. 

See  Cleveland  v.   Cleveland,  etc.,  R.  R.   Co., 
1  C.  L.  Rep.  304   (1878). 

Paving  in  Cleveland. 

See  Cleveland  v.  Cleveland,  etc..  R.  R.  Co., 
1  N.  P.  413   (1894);   s.  c,  3  Dec.  92. 


Obligation    to    repair    under    ordinance 
conditions. 

When  the  granting  ordinance  provides  that 
the  company  shall  repair  the  street  between 
rails,  and  that  in  case  of  default  the  city  may 
do  the  work  and  recover  the  cost;  the  city  is 
not  divested  of  its  right  to  control  the  street, 
and  it  may  cause  new  improvements  to  be 
made  and  determine  the  kind  of  improvement. 
The  company,  in  accepting  the  grant,  incurs 
the  obligation  to  repair,  and  if  the  company 
is  notified  to  do  the  work  any  time  before  the 
work  is  commenced,  and  on  default  the  city 
does  the  work,  the  reasonable  cost  of  the  same 

§  2505.  COUNCIL  OF  CITY  OR  VILLAGE  MAY  GRANT  EXTENSION  OF 
STREET  RAILROAD. —  The  council  of  any  city  or  village  may  grant  permission, 
by  ordinance,  to  any  corporation,  individual,  or  company  owning,  or  having  the  right 
to  construct,  any  street  railroad,  to  extend  their  track,  subject  to  the  provisions  of 
sections  three  thousand  four  hundred  and  thirty-seven,  three  thousand  four  hundred 
and  thirty-eight,  three  thousand  four  hundred  and  thirty-nine,  three  thousand  four 
hundred  and  forty,  three  thousand  four  hundred  and  forty-one,  three  thousand  four 
hundred  and  forty-two,  and  three  thousand  four  hundred  and  forty-three,  on  any 
street  or  streets  where  council  may  deem  such  extension  beneficial  to  the  public;  and 
when  any  such  extension  is  made,  the  charge  for  carrying  passengers  on  any  street 
railroad  so  extended,  and  its  connections  made  with  any  other  road  or  roads,  by  con- 
solidation under  existing  laws,  shall  not  be  increased  by  reason  of  such  extension  or 
consolidation.     (March  9,  1880,  77  v.  43;  R.  S.  1880;  May  7,  1869,  66  v.  140,  §  1.) 

Consents  for  extensions. 

See  Sommers  v.  Cincinnati,  8  A.  L.  Rec.  612 
(1880). 


Publication  of  notice. 

The  advertisement  of  the  application  pro- 
vided for  in  §  2502  is  intended  to  apply  only 
to  proposed  construction  of  new  routes,  arid 
not  to  extension  of  existing  routes  upon  which 
no  additional  fare  is  to  be  charged. —  Shite 
ex  rel.  v.  Cincinnati,  etc.,  Ry.  Co.,  19  0.  C.  C. 
79  (1899);  Sommers  v.  Cincinnati,  8  A.  L. 
Rec.  612    (1880). 


Consents  —  how  counted. 

The  consent  of  a  property  owner  for  a  cer- 
tain designated  extension  cannot  be  made 
available,  and  counted  as  a  consent  for  an- 
other and  different  extension. —  Neare  v.  lit. 


52 


Private  Corporations  in  Ohio. 


Street  Railway  Franchises,  §  2505a. 


Auburn. 
I  1893). 


etc.,    Ry.    Co.,    29    W.    L.    B.    171 


Consents    for    each,    street    must    he    oh- 
tained. 

In  the  extension  of  a  street  railway  over 
streets  not  occupied  by  any  road,  the  consents 
of  the  owners  of  more  than  one-half  of  the  feet 
front  of  the  lots  or  lands  abutting  on  each 
street  to  be  occupied  by  such  extension  are 
requisite. —  Mt.  Auburn,  etc.,  Rv.  Co.  v.  Neare, 
54  Oh.  St.   153   (1896);  s.  c,  29  W.  L.  B.  171. 

"What  is  an  extension. 

A  prolongation  of  an  existing  street  rail- 
road track  through  any  street  or  streets 
within  the  corporation  within  which  the 
council  declare  that  the  same  will  be  beneficial 
to  the  public,  no  matter  in  what  direction 
such  prolongation  may  be  made.,  is  an  exten- 
sion of  an  existing  track  within  the  meaning 
of  this  section,  the  requisites  of  such  extension 
being  that  it  shall  be  constructed  only  in  such 
streets  as  are  so  designated  by  council,  and 
that  no  additional  fare  shall  be  charged. — 
Sommers  v.  Cincinnati,  8  A.  L.  Rec.  612 
(1880). 

Power  to  declare  extension  beneficial. 

When  the  council  designates  two  or  more 
streets  in  which  they  declare  it  beneficial  to 
the  public  to  have  an  extension  located,  leav- 
ing to  the  company  the  choice  of  the  various 
routes  so  designated,  the  discretion  conferred 
upon  the  council  by  this  section  has  been  com- 
pletely exercised,  and  no  part  of  this  discre- 
tion can  be  said  to  be  delegated  to  the 
company. —  Sommers  v.  Cincinnati,  8  A.  L. 
Rec.  612  (1880). 


Interference  hy  courts. 

The  courts  will  interfere  with  the  public  au- 
thorities authorizing  an  extension  only  when 
fraud  or  bad  faith  is  shown. —  Cincinnati  v. 
Cincinnati,  etc.,  Rv.  Co.,  31  W.  L.  B.  308 
(1894);  Sims  v.  Street  R.  R.  Co.,  37  Oh.  St. 
556   (1S82). 

The    ordinance    does    not    confer    corpo- 
rate power. 

The  corporate  power  to  make  an  extension 
is  conferred  by  statutes  under  which  the  com- 
pany is  incorporated  and  acting.  The  ordi- 
nance granting  permission  to  make  an  exten- 
sion is  not  a  grant  of  corporate  power,  but  a 
permit  to  exercise  powers  already  granted. — 
Sims  v.  Street  R.  R.  Co.,  37  Oh.  St.  556  (1882). 

Extension  of  steam  road. 

A  steam  railroad  cannot  be  extended  under 
this  section,  but  only  under  the  general  rail- 
road act.  A  street  railroad,  operating  under 
a  charter  authorizing  a  steam  railroad,  cannot 
be  extended  by  condemnation  or  appropria- 
tion.—  Cincinnati,  etc.,  Rv.  Co.  v.  Cincinnati, 
7  N.  P.  511   (1897);  s.  c,  5  Dec.  562. 

Conditions  —  power  to   impose. 

An  extension  may  be  granted  on  conditions. 
— ■  See  Cincinnati  v.  Cincinnati,  etc.,  Ry.  Co., 
31  Y\.  L.  B.  30S  (1894). 

Consents    not    required    when    existing 
tracks  used. 

Where  a  company  obtains  permission  to  ex- 
tend its  line  over  existing  tracks,  the  consents 
of  property  owners  need  not  be  obtained. — ■ 
See  State  ex  rel.  v.  Cincinnati,  etc.,  Rv.  Co., 
19  O.  C.  C.  79  (1899). 


§  2505a.  POWER  TO  LEASE  OR  PURCHASE,  TO  ENTER  INTO  BENEFICIAL 
ARRANGEMENT,  TO  PURCHASE  STOCK,  ETC.;  PERFECTION  OF  LEASE  OR 
PURCHASE;  RIGHTS  OF  DISSENTING  STOCKHOLDERS;  INCREASE  OF  FARE 
PROHIBITED. —  Any  corporation  or  company  organized  for  street  railway  purposes, 
may  lease  or  purchase  any  street  railroad,  or  street  railroads,  or  railroad  operated  as 
a  street  railroad  and  by  electric  power  or  inclined  plane  railroad  or  railroads,  together 
with  all  the  property,  real,  personal  or  mixed,  and  all  the  franchises,  rights  and  privi- 
leges respecting  the  use  and  operation  of  such  railroad  or  railroads,  situate  or  exist- 
ing in  whole  or  in  part  within  this  state,  constructed  and  held  by  any  other  corpora- 
tion or  company,  corporations  or  companies,  the  latter  being  hereby  invested  with  cor- 
responding power  to  let  or  sell  upon  such  terms  and  conditions  as  may  be  agreed  upon 
between  the  corporations  or  companies;  and  any  two  or  more  of  such  corporations  or 
companies  may  enter  into  any  agreement  for  their  common  benefit  consistent  with  and 
calculated  to  promote  the  objects  for  which  they  were  created.  No  such  lease  or  pur- 
chase shall  be  perfected  until  a  meeting  of  the  stockholders  of  each  of  the  companies 
has  been  called  for  that  purpose  by  the  directors  thereof,  on  thirty  days'  notice  to 
each  stockholder,  at  such  place,  and  in  such  manner,  as  is  provided  for  annual  meet- 
ings of  the  companies,  and  the  holders  of  at  least  two-thirds  of  the  stock  of  each 
company,  in  person  or  by  proxy,  at  such  meeting,  or  at  any  properly  adjourned  meet- 
ing, assent  thereto.  Provided  that  any  stockholder  who  refuses  to  assent  to  such 
lease  or  sale  and  signifies  the  same  by  notice  in  writing  to  the  lessee  or  purchaser 
within  ninety  days  thereafter,  shall  be  entitled  to  demand  and  receive  compensation 


Miscellaneous  Provisions.  53 


Street  Railways,    SS   2505b,  2505c. 


in  the  manner  provided  for  the  compensation  of  stockholders  in  sections  3302,  3303 
and  3304  of  the  Revised  Statutes,  and  the  said  sections  are  adopted  and  made  to  be 
a  part  of  this  section.  Provided,  that,  whenever  any  such  lease  or  purchase  is  made 
as  herein  provided,  there  shall  be  no  increase  of  the  existing  rates  of  fare  by  reason  of 
such  lease  or  purchase  nor  shall  any  fare  be  charged  upon  any  of  the  separate  routes 
so  leased  or  purchased  in  excess  of  the  fare  charged  over  such  separate  routes  prior 
to  the  lease  or  purchase  thereof,  and  provided  that  when  any  such  lease  or  pur- 
chase is  made  as  herein  provided,  the  fare  charged  for  one  continuous  route  or  ride 
in  the  same  general  direction  over  all  such  leased  or  purchased  lines  within  any 
municipal  corporation  shall  not  exceed  the  maximum  fare  charged  over  any  one  of 
said  lines  prior  to  such  lease  or  purchase.  (April  23,  1898,  93  v.  214;  April  22, 
1896,  92  v.  277;  May  1,  1891,  88  v.  493.) 


Remedy      when      excessive      fares      are 
charged. 

When  a  company  has  made  a  lease  or  pur- 
chase under  this  section  and  is  charging  more 
for  a  continuous  ride  in  the  same  general  di- 


rect ion  than  is  lawful,  quo  warranto  will  lie. 
As  to  what  allegations  are  sufficient  on  de- 
murrer, see  State  ex  rel.  v.  Toledo  Ry.  & 
Lighl    Co.,  23  O.  C.  C.  603    (1902). 


§  2505b.  CONSOLIDATION.— Whenever  the  lines  or  authorized  lines  of  road 
of  any  street  railroad  corporations  or  companies  meet  or  intersect,  or  can  be  conveni- 
ently operated  from  one  power  house  or  from  a  power  house  or  power  houses  owned, 
under  lease  or  operated  by  one  of  such  street  railroad  corporations  or  companies,  or 
whenever  any  such  line  of  any  street  railroad  corporation  or  company,  and  that  of  any 
inclined  plane  railway  or  railroad  company  or  corporation,  or  any  railroad  operated 
by  electricity  may  be  conveniently  connected,  to  be  operated  to  mutual  advantage, 
or  whenever  any  such  line  of  any  street  railroad  corporation  or  company  and  that  of 
any  inclined  plane  railway  or  railroad  company  or  corporation  or  the  railway  of  any 
company  operated  by  electricity  can  be  conveniently  operated  from  one  power  house 
or  from  a  power  housa  owned,  under  lease  or  operated  by  one  of  such  street  railroad 
corporations  or  companies  or  inclined  plane  railway  or  railroad  companies  or  corpo- 
rations or  by  any  company  or  corporation,  the  railway  of  which  is  operated  by  elec- 
tricity such  corporations  or  companies,  or  any  two  or  more  of  them,  are  hereby  author- 
ized to  consolidate  themselves  into  a  single  corporation,  provided  they  are  not  com- 
peting lines,  but  the  provisions  herein  as  to  competing  lines  shall  have  no  application 
to  such  companies  or  corporations  whose  lines  are  nearby  or  wholly  situate  in  any 
city  of  the  state  of  Ohio  or  whenever  a  line  of  road  of  any  street  railroad  company 
or  corporation  organized  in  this  state  is  made,  or  is  in  process  of  construction  to  the 
boundary  line  of  the  state,  or  to  any  point  either  within  or  without  the  state,  such 
corporation  or  company  may  consolidate  its  capital  stock  with  the  capital  stock  of  any 
corporation  or  company,  or  corporations  and  companies  in  an  adjoining  state,  the  line 
or  lines  of  whose  road  or  roads  have  been  made  or  are  in  process  of  construction  to  the 
same  point  or  points,  in  the  same  manner  and  with  the  same  effect  as  provided  for 
the  consolidation  of  railroad  companies  in  sections  3381,  3382,  3383,  3384,  3385, 
3386,  3387,  3388,  3389,  3390,  3391  and  3392  of  the  Revised  Statutes,  and  any  and 
all  acts  amendatory  and  supplementary  to  said  sections  and  each  of  them;  and  the 
said  sections,  including  these  so  amended  and  supplemented  are  adopted  and  made 
a  part  of  this  section.  (May  10,  1902,  95  v.  510;  April  22,  1896,  92  v.  277;  April 
18,  1892,  89  v.  406;  May  1,  1891,  88  v.  493.) 

See  Greene  v.  Woodland,  etc..  R.  R.  Co..  G2  Oh.  St.  67   (1900). 

§  2505c.  USE  OF  STREET  RAILWAY  TRACKS  FOR  OPERATION  OF  PAS- 
SENGER CARS  OF  OTHER  RAILWAY  COMPANY,  ETC.—  Whenever  any  railway 
company  is  incorporated  and  organized  under  the  laws  of  this  state  for  the  purpose 
of  building,  acquiring,  owning,  leasing,  operating  and  maintaining  a  railroad  or  rail- 
roads to  be  operated  by  electricity  or  other  motive  power  from  one  municipal  corpora- 
tion or  point  in  this  state,  to  any  other  municipal  corporation,  municipal  corporations, 
or  point  in  this  state,  it  shall  have  an  authority  to  make  an  arrangement  or  agreement 


54  Private  Corporations  in  Ohio. 


Street  Railways,  §  2505e. 


with  any  street  railway  company  or  companies  owning  or  operating  any  street  rail- 
way or  railways  in  any  such  municipal  corporation  or  corporations,  and  said  street 
railway  company  or  companies  shall  have  authority  to  make  and  enter  into  such 
arrangement  or  agreement  with  said  railway  company,  whereby  the  passenger  cars 
of  such  railway  company  may  be  run  and  propelled  over  and  along  the  track  or 
tracks  of  such  street  railway  company  or  companies,  for  such  compensation  and  upon 
such  terms  as  may  be  agreed  upon  in  the  same  manner,  upon  the  same  conditions  and 
for  the  same  length  of  time  as  the  cars  owned  or  operated  by  said  street  railway  com- 
pany or  companies  are  operated  in  such  municipal  corporation  or  corporations.  The 
said  cars  of  said  railway  company  shall,  while  they  are  running  and  being  operated 
over  and  along  the  track  or  tracks  of  such  street  railway  company  or  companies  in 
any  such  municipal  corporation,  be  entitled  to  all  the  privileges  and  subject  to  all  the 
obligations  enjoyed  and  imposed  by  and  upon  the  cars  of  such  street  railway  company 
or  companies  owning  or  operating  its  cars  in  any  such  municipal  corporation,  and 
shall  be  operated  only  by  the  same  motive  power  with  which  the  cars  of  such  street 
railway  company  or  companies  are  or  may  be  operated.  Such  arrangement  and  agree- 
ment, when  authorized  by  not  less  than  two-thirds  in  amount  of  the  stockholders  of 
each  company  proposing  to  enter  into  such  arrangement  and  agreement,  ratified  by  a 
majority  of  the  directors  and  executed  by  the  proper  officers  thereof,  shall  give  to 
such  railway  company  full  authority  to  operate  its  said  cars  on  the  tracks  of  said 
street  railway  company  or  companies  in  such  municipal  corporation  or  municipal 
corporations.  Provided  that  it  shall  not  be  necessary  for  such  railway  company,  in 
case  it  uses  in  any  such  municipal  corporation  or  municipal  corporations,  only  the 
tracks  of  a  street  railway  company  or  companies  owning  or  operating  a  street  railway 
or  railways  within  such  municipal  corporation  or  municipal  corporations  to  obtain 
any  additional  grant,  franchise  or  right,  except  by  said  arrangement  or  agreement 
with  said  street  railway  company  or  companies.  Provided  further,  that  the  fare 
charged  by  said  railway  company  for  transporting  passengers  within  the  municipal 
corporation  or  municipal  corporations,  shall  not  be  greater  than  that  fixed  in  the 
franchise  or  franchises  held  or  owned  by  such  street  railway  company  or  companies; 
and  where  there  is  a  public  park  or  cemetery  on  the  line  of  such  railway  and  within 
one  mile  of,  and  owned  by,  such  municipal  corporation,  such  company  shall  for  such 
fare  so  transport  passengers  to  and  from  said  park  or  cemetery  the  same  as  though 
either  was  within  the  limits  of  such  corporation.     (May  21,  1894,  91  v.  379.) 

See  State  ex  rel.  v.  Cincinnati,  etc.,  Ry.  Co.,  19  O.  C.  C.  79   (1S99). 

§  2505e.  STREET  RAILWAY  COMPANY  MAY  LEASE  OR  PURCHASE  PROP- 
ERTY, ETC.,  OF  ELECTRIC  LIGHT  AND  POWER  COMPANY;  STOCKHOLDERS' 
MEETING  TO  PERFECT  LEASE  OR  PURCHASE;  DISSENTING  STOCKHOLDER; 
POWERS  OF  PURCHASING  COMPANY;  LEASE  OR  SALE  NOT  TO  AFFECT  LIA- 
BILITY OF  LIGHT  AND  POWER  COMPANY. —  Any  corporation  or  company  main- 
taining and  operating  a  street  railroad,  or  a  railroad  operated  by  electricity,  may 
lease  or  purchase  all  the  property,  real,  personal  and  mixed,  and  all  the  franchises, 
rights  and  privileges  of  any  company  organized  for  the  purpose  of  supplying  elec- 
tricity, or  natural  or  artificial  gas,  or  both  electricity  and  natural  or  artificial  gas, 
for  power,  light,  heat  or  fuel  purposes,  or  which  has  been  engaged  in  such  business 
in  whole  or  in  part  in  any  municipality  within  this  state,  the  latter  being  hereby 
vested  with  corresponding  power  to  let  or  sell,  upon  such  terms  and  conditions  as 
may  be  agreed  upon  between  the  corporation  and  company.  No  such  lease  or  pur- 
chase shall  be  perfected  until  a  meeting  of  the  stockholders  of  each  of  the  companies 
has  been  called  for  that  purpose  by  the  directors  thereof,  on  thirty  (30)  days'  notice 
to  each  stockholder  at  such  time  and  place  and  in  such  manner  as  is  provided  for  the 
annual  meetings  of  the  companies  and  the  holders  of  at  least  two-thirds  of  the  stock 
of  each  company  in  person  or  by  proxy,  at  such  meeting,  or  at  any  properly  adjourned 
meeting  assent  thereto.     Provided,  that  any  stockholder  who  refuses  to  assent  to  such 


Miscellaneous  Provisions.  55 


Taxation  of  Corporations,   §§  2734,  2735. 


lease  or  sale  and  so  signifies  by  riotice  in  writing  to  the  lessee  or  purchaser  within 
ninety  (90)  days  thereafter  shall  be  entitled  to  demand  and  receive  compensation  in 
the  manner  provided  for  the  compensation  of  stockholders  in  sections  3302,  3303  and 
3304  of  the  Revised  Statutes  and  the  said  sections  are  adopted  and  made  a  part  of  this 
section.  Any  such  company  so  leasing  or  purchasing  the  property,  rights  and  fran- 
chises of  an  electric  light  and  power  company,  or  natural  or  artificial  gas  company, 
or  electric  light  and  power  and  natural  or  artificial  gas  company,  shall  have  all  the 
rights,  power  and  authority  of  the  company  where  property  rights  and  franchises  are 
so  leased  or  purchased,  but  the  liability  of  an  electric  light  and  power  company  or 
natural  or  artificial  gas  company,  or  electric  light  and  power  and  natural  or  artificial 
gas  company,  shall  in  no  manner  be  affected  by  its  lease  or  sale  as  herein  provided. 
(May  6,   1902,  95  v.  390;  April  19,  1898,  93  v.  139.) 

TAXATION  OF  CORPORATIONS. 
§  2734.  WHO  SHALL  LIST  PERSONAL  PROPERTY.— Every  person  of  full 
age  and  sound  mind  shall  list  the  personal  property  of  which  he  is  the  owner,  and  all 
moneys  in  his  possession,  all  moneys  invested,  loaned  or  otherwise  controlled  by  him, 
as  agent  or  attorney,  or  on  account  of  any  other  person  or  persons,  company  or  corpo- 
ration whatsoever,  and  all  moneys  deposited  subject  to  his  order,  check,  or  draft,  and 
all  credits  due  or  owing  from  any  person  or  persons,  body  corporate  or  politic,  whether 
in  or  out  of  such  county;  all  money  loaned  on  pledge  or  mortgage  of  real  estate, 
although  a  deed  or  other  instrument  may  have  been  given  for  the  same,  if  between 
the  parties  the  same  is  considered  as  security  merely;  the  property  of  every  ward  shall 
be  listed  by  his  guardian,  of  every  minor  child,  idiot,  or  lunatic  having  no  guardian, 
by  his  father,  if  living;  if  not,  by  his  mother,  if  living;  and  if  neither  father  nor 
mother  be  living,  by  the  person  having  such  property  in  charge;  of  every  wife  by  her 
husband,  if  of  sound  mind,  if  not,  by  herself;  of  every  person  for  whose  benefit  prop- 
erty is  held  in  trust,  by  the  trustees;  of  every  estate  of  a  deceased  person,  by  his 
executor  or  administrator;  of  corporations  whose  assets  are  in  the  hands  of  receivers, 
by  such  receivers;  of  every  company,  firm,  or  corporation,  by  the  president  or  prin- 
cipal accounting  officer,  partner  or  agent  thereof;  and  all  surplus  or  undivided  profits 
held  by  any  society  for  savings  or  bank  having  no  capital  stock,  by  the  president  or 
principal  accounting  officer.  (March  7,  1879,  76  v.  28,  §  2;  May  11,  1878,  75  v.  441, 
§  1;  April  8,  1865,  62  v.  105,  §  4.) 

§  2735.  WHERE  PERSONAL  PROPERTY  SHALL  BE  LISTED.—  Every  person 
required  to  list  property  on  behalf  of  others  shall  list  the  same  in  the  same  township, 
city,  or  village  in  which  he  would  be  required  to  list  it  if  such  property  were  his  own; 
but  he  shall  list  it  separately  from  his  own,  specifying  in  each  case  the  name  of  the 
person,  estate,  company,  or  corporation,  to  whom  it  belongs;  all  merchants'  and  manu- 
facturers' stock,  and  all  personal  property  upon  farms  shall  be  listed  in  the  township, 
city,  or  village  in  which  the  same  may  be  situated;  and  all  other  personal  property, 
moneys,  credits,  and  investments,  except  as  otherwise  specially  provided,  shall  be 
listed  in  the  township,  city,  or  village  in  which  the  person  to  be  charged  with  taxes 
thereon  may  reside  at  the  time  of  the  listing  thereof,  if  such  person  reside  within  the 
county  where  the  same  are  listed,  and  if  not,  then  in  the  township,  city,  or  village 
where  the  property  is  when  listed.     (April  8,  1865,  62  v.  105,  §  4.) 


Where   corporation    resides. 

A  corporation  resides  at  the  place  of  its 
principal  office  as  fixed  by  its  articles  of  in- 
corporation.—  Pelton    v.    Transportation    Co., 

37  Oh.  St.  450   (1882). 

Removal  of  residence. 

A  corporation  whose  principal  office  is  lo- 
cated in  a  specified  township,  and  without  the 


limits  of  a  city,  may.  if  the  city  limits  be  so 
extended  as  to  include  the  site  of  the  office, 
remove  the  same  to  some  other  part  of  the 
township  and  thus  avoid  municipal  taxation. 
— -Pelton  v.  Transportation  Co..  37  Oh.  St. 
450   (1882). 

Valuation   of   stocks. 

See  §  2739. 


56 


Private  Corporations  in  Ohio. 


Taxation  of  Corporations,   §  2744. 


§  2744.     CORPORATIONS    GENERALLY;    THEIR    RETURNS.— The   president, 
secretary,  and  principal  accounting  officer  of  every  canal  or  slack-water  navigation 
company,   turnpike  company,  plank-road  company,  bridge  company,   insurance  com- 
pany, telegraph  company,  or  other  joint  stock  company,  except  banking  or  other  cor- 
porations whose  taxation  is  specifically  provided  for,  for  whatever  purpose  they  may 
have  been  created,  whether  incorporated  by  any  law  of  this  state  or  not,  shall  list  for 
taxation,  verified  by  the  oath  of  the  person  so  listing,  all  the  personal  property,  which 
shall  be  held  to  include  all  such  real  estate  as  is  necessary  to  the  daily  operations  of 
the  company,  moneys  and  credits  of  such  company  or  corporation  within  the  state, 
at  the  actual  value  in  money,  in  manner  following:     In  all  cases  return  shall  be  made 
to  the  several  auditors  of  the  respective  counties  where  such  property  may  be  situated, 
together  with  a  statement  of  the  amount  of  said  property  which  is  situated  in  each 
township,  village,  city,  or  ward  therein.     The  value  of  all  movable  property  shall  be 
added  to  the  stationary  and  fixed  property  and  real  estate,  and  apportioned  to  such 
wards,  cities,  villages,  or  townships,  pro  rata,  in  proportion  to  the  value  of  the  real 
estate  and  fixed  property  in  said  ward,  city,  village,  or  township,  and  all  property  so 
listed  shall  be  subject  to  and  pay  the  same  taxes  as  other  property  listed  in  such  ward, 
city,  village,  or  township.     It  shall  be  the  duty  of  the  accounting  officer  aforesaid  to 
make  return   to  the  auditor  of  state  during  the  month  of  May  of  each  year  of  the 
aggregate  amount   of   all   property   by  him   returned   to   the  several   auditors   of  the 
respective  counties  in  which  the  same  may  be  located.      It  shall  be  the  duty  of  the 
auditor  of  each  county,  on  or  before  the  first  Monday  of  May,  annually,  to  furnish  the 
aforesaid   president,   secretary,   principal   accounting   officer,   or   agent,   the   necessary 
blanks  for  the  purpose  of  making  aforesaid  returns;  but  no  neglect  or  failure  on  the 
part  of  the  county  auditor  to  furnish  such  blanks  shall  excuse  any  such  president, 
secretary,  principal  accountant,  or  agent,  from  making  the  returns  within  the  time 
specified  herein.     If  the  county  auditor  to  whom  returns  are  made  is  of  the  opinion 
that  false  or  incorrect  valuations  have  been  made,  or  that  the  property  of  the  corpo- 
ration or  association  has  not  been  listed  at  its  full  value,  or  that  it  has  not  been  listed 
in  the  location  where  it  properly  belongs,  or  in  cases  where  no  return  has  been  made 
to  the  county  auditor,  he  is  hereby  required  to  proceed  to  have  the  same  valued  and 
assessed:  provided,  that  nothing  in  this  section  shall  be  so  construed  as  to  tax  any 
stock  or  interest  in  any  joint-stock  company  held  by  the  state.     (April  8,  1876,  73 
v.   139,   §    16.) 


Charitable  institutions  exempt. 

See  §  2732;  Cleveland,  etc.,  Ass'n  v.  Pelt  on, 
36  Oh.  St.  253  (1880);  Humphries  v.  Little 
Sisters,  29  Oh.  St.  201  (1876);  Morning  Star 
Lodge  v.  Hayslip,  23  Oh.  St.  144  (1S72). 

Express,  telegraph,  and  telephone  com- 
panies. 

See  §§  2778,  2780-17  et  seq. 

Sleeping-car  companies. 

See  §  2780-13. 

Freight-line  and  equipment  companies. 

See  §  2780-8. 

Electric  light,  gas,  natural  gas,  pipe 
line,  water  works,  street,  suburban 
or  interurban  railroad,  messenger  or 
signal,  union  depot,  and  railroad 
companies. 
See   §  2780-17  et  seq. 


Manufacturers. 

See  §  2742. 

Franchise    to    be    a    corporation    is    not 
property. 

See  Exchange  Bank  v.  Hines,  3  Oh.  St.  1,  7 
(1853). 

Unpaid     stock     subscriptions     must     be 
listed. 

See  Farmers'  Ins.  Co.  v.  La  Rue,  22  Oh.  St. 
630   (1872). 

Interests  in  unincorporated  companies. 

When  a  corporation  has  an  interest  in  an 
unincorporated  company,  it  is  relieved  from 
the  duty  of  listing  its  interest  in  such  unin- 
corporated company. —  See  Pomeroy  Salt  Co. 
v.  Davis,  21   Oh.  St.  555    (1871). 

How  value  of  property  ascertained. 

See  State  ex  rel.  v.  Jones,  51  Oh.  St.  492, 
511   (1S94). 


Miscellaneous  Provisions. 


57 


Taxation  of  Corporations  —  Insurance   Companies,   §   2745. 


Capital  stock  listed   under  this  section. 

The  legislature  intended  by  the  description 
of  property  in  this  section  to  embrace  the 
capital  stock  of  corporations;  for  the  fund 
subscribed  and  paid  in  to  carry  out  the  pur- 
poses of  the  organization  remains  the  capital 
stock  of  the  company  after  it  has  been  con- 
verted into  property  necessary  for  the  business 
operations,  and  for  which  i!  was  originally  sub- 
scribed.—Jones  v.  Davis,  35  Oh.  St.  474,  477 
(1880). 


What  listed   by  foreign  corporation. 

See     Hubbard     v.    Brush,    CI    Oh.    St.    252 
(1899). 

Correction  of  returns. 

See  Ohio,  etc.,  Co.   v.    Hard,  59  Oh.  St.  248 
( L898). 

Returns  for  five  years —  8  2781. 

S«c  Ohio,  etc.,  Co.  v.  Hard.  59  Oh.  St.  248 

(1898). 


§  2745.  FOREIGN  INSURANCE  COMPANIES;  ANNUAL  STATEMENTS.— 
Every  insurance  company,  incorporated  by  the  authority  of  any  other  state  or  gov- 
ernment shall,  in  its  annual  statement  to  the  superintendent  of  insurance,  set  for(th) 
the  gross  amount  of  premiums  received  by  it  in  the  state  during  the  preceding  calen- 
dar year,  without  deductions  for  commissions,  return  premiums  or  considerations  paid 
for  reinsurance,  or  any  deductions  whatever;  and  shall,  also,  therein  set  forth,  in 
separate  items,  return  premiums  paid  for  cancellations  and,  also,  considerations 
received  from  other  companies  for  reinsurance  in  this  state,  during  such.  year. 

PAYMENT  OF  TAX  TO  SUPERINTENDENT  OF  INSURANCE.— Every  such 
company  shall,  annually,  in  the  month  of  November,  pay  to  the  superintendent  of 
insurance  an  amount  equal  to  two  and  one-half  per  cent  of  the  balance  of  such  gross 
amount,  after  deducting  such  return  premiums  and  considerations  received  for  rein- 
surances, as  shown  by  its  next  preceding  annual  statement. 

RETALIATORY  PROVISION.— If  the  laws  of  any  other  state,  territory  or 
nation  authorize  charges  for  the  privilege  of  doing  business  therein,  or  taxes  against 
any  insurance  companies,  which  are,  or  may  be  organized  in  this  state,  exceeding 
the  charges  herein  provided,  the  same  shall  be  charged  against  all  insurance  com- 
panies of  such  state,  territory  or  nation,  doing  business  in  this  state,  in  place  of  the 
charges  herein  provided. 

PENALTY  FOR  FAILURE  TO  PAY  TAX  OR  MAKE  TRUE  STATEMENT.— 
If  any  such  company  refuse  to  pay  said  tax,  after  demand  therefor  has  been  made; 
or,  if  the  statement  made  by  it,  under  this  section  is  false,  the  superintendent  of 
insurance  shall  revoke  the  license  of  such  company  to  do  business  in  this  state. 

EXAMINATION  OF  BOOKS  OF  COMPANY.—  If,  at  any  time,  said  superintend- 
ent has  reason  to  suspect  the  correctness  of  any  such  statement  he  may,  at  the 
expense  of  the  state,  make  an  examination  of  the  books  of  such  company,  or  of  its 
agents,  for  the  purpose  of  verifying  the  same.  All  taxes  collected  under  the  pro- 
visions of  this  section  by  the  superintendent  of  insurance  shall  be  paid  by  him,  upon 
the  warrant  of  the  auditor,  into  the  general  revenue  fund  of  the  state. 

Insurance  companies  and  associations,  incorporated  by  the  authority  of  another 
state  or  government  or  the  superintendent  of  insurance,  shall  not  be  required  to  make 
returns  of  deposits  of  such  companies  or  associations,  made  as  required  by  law  with 
such  superintendent  of  insurance  for  the  benefit  and  security  of  policy  holders,  and 
shall  not  be  governed,  in  respect  to  such  deposits,  by  the  provisions  of  section  2744, 
or  of  section  2734  of  the  Revised  Statutes  of  Ohio.  (April  29,  1902,  95  v.  290;  March 
27,  1894,  91  v.  91;  April  19,  1893,  90  v.  201;  April  12,  1889,  86  v.  274;  April  11, 
1888,  85  v.  183;  R.  S.  1880;  April  8,   1876,  73  v.   138.) 


Annual   valuation  of  outstanding  poli- 
cies. 

See  §  279. 

When  retaliatory  provision   efFective. 

This  section  prescribes  the  rate  of  taxation 
upon  every  foreign  insurance  company  doing 


business  in  this  state.  The  last  clause  of 
§  282  is  operative  only  when  it  is  shown  that 
the  law  of  the  state  where  such  company  is 
organized  taxed  Ohio  corporation?  doing  busi- 
ness there  at  a  rate  higher  than  foreign  c<  m- 
panies  are  taxed  by  this  section.  In  such  case 
the  foreign  company,  in  addition  to  the  tax 


58 


Private  Corporations  in  Ohio. 


Taxation  of  Corporations — Insurance  Companies,  §§  2745a7  2745b. 


on  the  gross  receipts,  should  be  taxed  in  such 
additional  sum  as  will  be  sufficient  to  make 
the  total  equal  to  the  amount  that  would  be 
realized  were  the  rule  of  the  state  where  the 
company  was  organized  applied  to  its  trans- 
actions in  this  state,  but  no  more. —  State  ex 
rcl.  v.  Reinmund,  45  Oh.  St.  214  (1887). 

Amount  to  be  paid. 

Under  this  section  a  regular  foreign  mutual 
life  insurance  company,  having  hied  a  state- 
mem  as  required  by  §  3606  and  §  3608,  is 
required  to  pay  to  the  superintendent  of  in- 
surance such  sum  as,  added  to  the  amounts 
paid  to  the  different  county  treasurers,  will 
produce  an  amount  equal  to  two  and  one-half 
per  cent,  of  the  gross  premium  and  assessment 
receipts  of  such  company  for  the  year  as 
shown  by  such  statements  filed  in  the  insur- 
ance department. —  State  ex  rel.  v.  Hahn,  50 
Oh.   St.  714   (1893). 


Remedy  to  test  amount  of  taxes. 

Mandamus  is  not  the  proper  remedy  to  test  . 
the  amount  of  taxes  to  be  paid  to  the  super- 
intendent of  insurance  under  this  section,  and 
to  prevent  the  superintendent  of  insurance 
from  revoking  the  license  of  an  insurance 
company  to  do  business  in  this  state.  Injunc- 
tion is  the  proper  remedy. —  State  ex  rel.  v. 
Hahn,  50  Oh.  St.  714  (1893). 

When  license  may  be  revoked. 

The  power  of  the  superintendent  of  insur- 
ance to  revoke  or  decline  to  renew  a  license 
continues  and  may  be  exercised  notwithstand- 
ing the  commencement  and  pendency  of  an 
action  brought  by  him  against  a  company  to 
recover  the  taxes  thus  assessed. — State  ex  rel. 
v.  Matthews,  58  Oh.  St.  1  (1898). 


§  2745a.  INSURANCE  POLICY  ON  OHIO  PROPERTY  NOT  TO  BE  PLACED  IN 
AGENCY  OUTSIDE  STATE;  RE-INSURANCE. —  It  shall  be  unlawful  for  any  insur- 
ance company  or  agent  legally  authorized  to  transact  insurance  business  in  the  state 
of  Ohio  to  write,  place  or  cause  to  be  written  or  placed,  any  policy,  renewal  of  policy, 
contract  for  insurance  upon  property  situated  or  located  in  the  state  of  Ohio,  except 
through  a  legally  authorized  agent  in  the  state  of  Ohio,  who  shall  countersign  all 
policies  so  issued  and  enter  the  payment  of  the  premium  upon  his  record,  and  the 
■writing,  renewal,  placing  or  causing  to  be  written  or  placed  any  policy  of  insurance 
in  any  other  manner  or  form  is  hereby  declared  to  be  a  violation  of  the  law  providing 
for  the  payment  of  taxes  by  foreign  insurance  companies  doing  business  in  the  state  of 
Ohio,  as  set  out  and  provided  in  section  2745  of  an  act  passed  by  the  General  Assembly 
of  the  state  of  Ohio,  April  12,  1889  (88  v.  487).  And  no  fire  insurance  company  or 
association  authorized  to  do  business  in  this  state  shall  reinsure,  dispose  of,  cede, 
pool,  divide  or  in  any  manner  or  form  whatsoever,  reduce  any  portion  of  its  risk  or 
liability,  covering  property  located  in  whole  or  in  part  in  this  state,  in  or  with  any 
company,  association,  person  or  persons  whatever,  incorporated  or  otherwise,  not 
authorized  by  law  to  do  the  business  of  fire  insurance  in  this  state,  or  to  reinsure,  or 
assume  as  a  reinsuring  company  or  otrTerwise,  in  any  manner  or  form  whatsoever, 
the  whole  or  any  part  of  any  risk  or  liability,  covering  property  located  in  whole  or 
in  part  in  this  state,  of  or  for  any  insurance  company,  association,  person  or  persons; 
incorporated  or  otherwise,  not  authorized  by  law  to  do  the  business  of  fire  insurance 
in  this  state.  It  shall  be  the  duty  of  the  superintendent  of  insurance  of  this  state 
annually,  and  at  such  times  as  he  may  see  fit,  to  require  the  president  or  other  chief 
officer  of  each  company  or  association,  to  file  a  statement  under  oath,  showing  the 
names  of  each  fire  insurance  company,  or  association,  with  whom  or  for  whom  any 
liability  for  insurance  on  property  located  in  whole  or  in  part  in  this  state  has  been 
reinsured,  disposed  of,  ceded,  pooled,  divided,  or  in  any  manner  or  form  whatsoever 

reduced  or  increased.     (April  16,  1900,  94  v.  299;  88  v.  487.)  I 

I 
See  also   §§  2745b  and  2745c.  ' 


§  2745b.  REVOCATION  OE  LICENSE  FOR  VIOLATING  ABOVE.— That  any 
company  or  companies  violating  the  provisions  of  section  2745a  of  this  act,  upon 
notice  and  satisfactory  proof  thereof  being  made  to  the  superintendent  of  insurance 
of  the  state  of  Ohio,  shall  have  its  or  their  authority  to  transact  business  in  the  state 
of  Ohio  revoked  for  a  period  of  not  less  than  ninety  days;  and  any  insurance  company 
whose  license  to  do  business  in  the  state  of  Ohio  may  be  so  revoked  by  the  superin- 
tendent of  insurance  of  the  state  of  Ohio,  shall  not  be  again  permitted  to  do  business 


Miscellaneous  Provisions. 


59 


Taxation  of  Corporations,  SS  2745c~2746. 


in  the  state  of  Ohio,  until  all  taxes  and  penalties  due  thereon  shall  have  been  paid, 
together  with  any  expense  that  may  be  due  under  the  provisions  of  this  bill,  to  the 
superintendent  of  insurance  of  the  state  of  Ohio;  and  such  company  shall  only  be 
re-admitted  to  transact  business  in  the  state  of  Ohio  upon  a  complete  re-compliance 
with  the  laws  now  in  force  in  regard  to  the  admission  of  insurance  companies  to  do 
business  in  Ohio.     (May  1,   1891,  88  v.  488.) 

§  2745c.  SUPERINTENDENT  OF  INSURANCE  TO  INSPECT  COMPANY 
CHARGED  WITH  VIOLATING  THE  LAW.—  That  when  notice  of  any  violation  of 
the  first  section  of  this  act  is  received  by  the  superintendent  of  insurance  of  the  state 
of  Ohio,  (that)  it  shall  forthwith  be  his  duty  in  person,  or  by  deputy,  to  visit  the 
office  of  such  company  or  companies  where  such  contract  of  insurance  may  have  been 
written  or  made,  and  demand  an  inspection  of  the  books  and  records  of  such  company 
or  companies;  any  company  or  companies  refusing  to  exhibit  its  or  their  books  and 
records  for  his  inspection  shall  be  deemed  guilty  of  violating  the  provisions  of  the 
first*  section  of  this  act,  and  the  penalties  provided  in  this  act  shall  immediately  be 
enforced  against  such  company  or  companies,  by  the  superintendent  of  insurance  of 
the  state  of  Ohio.      (May  1,  1891,  88  v.  488.) 

*  The  first  section  includes  §§  2745a,  b,  c,  and   d. 

§  2745d.  EXPENSES  OF  INSPECTION.— The  superintendent  of  insurance  of 
the  state  of  Ohio  shall  receive,  as  a  compensation  for  the  services  rendered  under  the 
provisions  of  this  act,  his  necessary  expenses,  which  sum  shall  be  charged  against 
the  company  or  companies  so  visited  by  him,  and  shall  be  collected  from  such  com- 
pany or  companies  by  suit  in  any  court  of  competent  jurisdiction.  (May  1,  1891,  88 
v.   488.) 


§  2746.  IN  WHOSE  NAME  PROPERTY  TO  BE  LISTED;  BUT  STOCK  IN  COM- 
PANIES WHICH  MAKE  RETURN  OF  CAPITAL  NOT  TO  BE  LISTED  BY  SHARE- 
HOLDER.—  Personal  property  of  every  description,  moneys  and  credits,  investments 
in  bonds,  stocks,  joint  stock  companies,  or  otherwise,  shall  be  listed  in  the  name  of 
the  person  who  was  the  owner  thereof  on  the  day  preceding  the  second  Monday  of 
April,  in  each  year;  but  no  person  shall  be  required  to  list  for  taxation  any  share  or 
shares  of  the  capital  stock  of  any  company,  the  capital  stock  of  which  is  taxed  in  the 
name  of  such  company.     (May  5,  1859,  56  v.  175,  §  59.) 


Definition  of  investments  in  stocks. 

See  §  2730. 

Capital  stock  of  domestic  corporations 
listed  under  §  2744.  Shares  need  not 
be  listed. 

The  personal  property  which  a  corporation 
organized  and  doing  business  under  the  laws 
of  this  state  is  required  to  list  under  §  _!744 
embraces  the  capital  stock  of  the  corpora tion. 
and  such  being  the  case,  an  owner  of  shares  of 
the  capital  stock  of  such  company  is  not  re- 
quired to  list  his  shares  for  taxation. — 
Jones  v.  Davis,  35  Oh.  St.  474   (1880). 

Meaning  of  capital  stock. 

Capital  stock  and  capital  property  mean 
practically  the  same  thing.  Primarily  the 
capital  stock  is  the  money  paid  in  by  the 
stockholders  in  compliance  with  the  terms  of 
their  subscriptions.  It  soon,  however,  takes 
the  form  of  real  estate  or  personal  property, 
or'  both,  including  machinery,  buildings,  cred- 
its, rights  in  action,  etc.     So  that  it  may  be 


taken  to  mean  personal  property,  and  such 
real  estate  as  may  be  necessary  to  the  daily 
operations  of  the  company,  and  its  moneys 
and  credits.  The  capital  is  thus  represented 
by  the  property  in  which  it  has  been  invested. 
—  Lee  v.  Stunjes,  46  Oh.  St.  153.  160  (ISS'J); 
Jones  v.  Davis,  35  Oh.  St.  474,  476  (1880). 

Exemption  must  clearly  appear. 

An  exemption  from  taxation  must  be  shown 
to  indubitably  exist.  At  the  outset  every  pre- 
sumption is  against  it.  A  well-founded  doubt 
is  fatal  to  the  clahn.  It  is  only  where  the 
terms  of  the  concession  are  too  explicit  to 
admit  fairly  of  any  other  construction  that 
the  proposition  can  be  supported. —  See  Lee 
v.  Sturges,  46  Oh.  St.  160   (1889). 

How  exemption  shown. 

A  stockholder  is  not  required  to  show  that 
the  corporation  has  listed  all  the  property. 
He  is  only  required  to  show  that  the  corpora- 
tion is  required  to  list. —  See  Lee  v.  Sturges, 
46  Oh.  St.  153,  175   (1889). 


60 


Private  Corporations  in  Ohio. 


Taxation  of  Corporations,  §§  2747-2748. 


Stock  in  foreign  corporations. 

Investments  in  stocks  of  foreign  corpora- 
tions by  residents  of  Ohio  may  lawfully  be 
taxed  in  Ohio,  and  the  act  imposing  such 
taxes  is  constitutional. —  Worthington  v. 
Sebastian,  25  Oh.  St.  1  (1874);  Bradley  v. 
Bauder,   36  Oh.  St.  28    (1S80). 

Stock  in  foreign  corporations. 

This  section  does  not  apply  to  shares  of  a 
foreign  corporation,  although  the  capital  of 
the  corporation  is  taxed  in  the  state  where 
located,  and  although  the  corporation  has  sub- 
stantial property  in  Ohio  on  which  it  pays 
taxes  here. —  Lee  v.  Sturges,  46  Oh.  St.  153 
(1889).  See  Bradley  v.  Bauder,  36  Oh.  St.  28 
(1880)  j  Sturges  v.  Carter,  114  U.  S.  511 
(1885).     See   §   148c  and  148d. 

Same  subject. 

Where  all  the  business  of  a  foreign  corpora- 
tion is  transacted  in  this  state,  and  all  of  its 
property  situated  and  taxed  here,  shares  of 
its  capital  stock  held  here  are  exempt. — 
Hubbard   v.   Brush,   61    Oh.   St.  252    (1899). 

Stock  in  consolidated  companies. 

This  section  does  not  apply  to  shares  of  a 
railroad  company  which  is  formed  by  the 
consolidation  of  an  Ohio  company  with  com- 
panies of  other  states,  notwithstanding  such 
company  pays  taxes  in  Ohio  on  the  portion  of 
its  property  which  is  situated  here. —  Lee  v. 
Sturges,  46  Oh.   St.   153    (1889). 

Preferred  stock. 

This  section  makes  no  distinction  between 
common  and  preferred  stock. —  Miller  v.  Rat- 
terman.  47  Oh.  St.  141   (1S90). 

Scrip  certificates. 

Issuing  scrip  certificates  to  the  stockholders 
of  a  corporation,  redeemable  in  the  future  in 
stock  of  the  company,  for  surplus  earnings,  is 
not  a  division  of  the  surplus  in  money,  or  a 
promise  to  pay  money  to  the  stockholders.     In 


such  case  the  corporation  continues  thereafter 
to  be  the  owner  of  such  surplus,  and  the 
stockholders  have  nothing  more  than  a  prom- 
ise to  have  stock  in  the  future  for  the  surplus: 
and  if  tne  company  is  required  to  list  its  prop- 
el ty  in  Ohio,  then  such  scrip  certificates  aie 
not  taxable. —  Adams  v.  Shields.  17  0.  C.  C. 
129  (1S98):  s.  c,  9  C.  D.  558:  s.  c..  5  N.  P. 
1901.     See  State  v.  Franklin,  10  Oh.  91  (1840) 

Pledged  stock  taxed  in  name  of  pleds-or. 

Shares  of  stock  which  have  been  pledged  as 
collateral  security  for  loans,  with  power  to 
the  pledgee  to  transfer  the  shares  to  his  own 
name,  and  in  case  the  loans  are  not  paid,  to 
sell,  but  which  stand  on  the  books  of  the  com- 
pany in  the  name  of  tne  pledgor,  are  property 
taxable  in  his  name. —  Ratterman  v.  Ingalls, 
48  Oh.  St.   468    (1891). 

Construction  of  law  by  officials  does  not 
bind   the    state. 

A  construction,  by  officers  having  the  en- 
forcement of  the  tax  laws,  to  the  effect  that 
stock  of  certain  companies  is  not  taxable  in 
Ohio,  does  not  bind  the  successors  of  such 
officers,  nor  the  state  in  the  assessment  and 
collection  of  taxes  on  such  stock. —  Lee  v. 
Sturges,   46  Oh.    St.    153    (188y). 

■What  is  "  false  return  of  stock." 

See  Ratterman  v.  Ingalls,  48  Oh.  St.  468 
(1891):  Ratterman  v.  Phipps,  7  O.  C.  C.  458 
(1S93)  :    s  c,  4  L.  D.  678. 

Void  or  illegal   stock  not  taxable. 

See  McDonald  v.  Hasgertv,  7  O.  C.  C.  508 
(1893);  s.  c,  4  C.  D.  702. 

What  stock  not  exempt. 

Stock  held  by  residents  of  Ohio  in  domestic 
or  foreign  corporations  is  not  exempt  under 
this  section  except  when  the  property  of  the 
corporation  is  taxed  in  its  name  in  tuis  state. 
—  Lander  v.  Burke,  65  Oh.  St.  532  (1902). 


§  2747.  WHEN  LISTS  TO  BE  MADE;  NOTICE  AND  FORMS  TO  BE  GIVEN 
BY  ASSESSORS. —  The  listing  of  all  personal  property,  moneys,  credits,  investments 
in  bonds,  stocks,  joint  stock  companies,  or  otherwise,  shall  be  made  between  the 
second  Monday  of  April  and  the  third  Monday  of  May,  annually;  and  the  assessor 
shall,  on  or  before  the  first  Monday  of  May,  annually,  leave  with  each  person,  resi- 
dent in  his  township  or  ward,  of  full  age,  and  not  a  married  woman,  or  insane  person, 
or  at  the  office,  usual  place  of  residence  or  business  of  each  person,  a  written  or  printed 
notice,  requiring  such  person  to  make  out  for  the  assessor  a  statement  of  the  property 
which,  by  law,  he  is  required  to  list,  accompanied  with  printed  forms,  in  blank,  of  the 
statement  required;  and  the  assessor  shall,  at  the  time  he  delivers  such  notice  and 
blank  forms,  demand  and  receive  such  statement,  unless  such  person  shall  require 
further  time  to  make  out  the  same,  in  which  case  he  shall  call  for  the  same  before 
the  third  Monday  of  May.     (May  5,   1859,  56  v.  175,  §  17.) 


§  2748.  STATEMENTS  TO  BE  VERIFIED  BY  OATH.— Every  such  statement 
shall  be  verified  by  the  oath  of  the  person  making  the  same.  (May  5,  1859,  56  v.  175, 
§  17.) 


Miscellaneous  Provisions.  61 

Taxation  of  Corporations  —  Banks,  §  2759. 


§  2749.  STATE  AUDITOR  TO  FURNISH  BLANKS;  OATH  OF  PERSON  LIST- 
ING PROPERTY;  FIXING  VALUES;  COUNTY  AUDITOR  TO  ASSEMBLE  AND 
INSTRUCT  ASSESSORS  AND  FURNISH  BLANKS.—  The  auditor  of  the  state  shall, 
annually,  on  or  before  the  first  Monday  of  April,  furnish  each  county  auditor  with  a 
blank  form  of  statement  for  listing  personal  property,  moneys,  credits,  investments 
in  bonds,  stocks,  joint-stock  companies,  or  otherwise,  containing  all  the  items  required 
in  section  2737,  and  such  subdivisions  thereof,  and  additional  items,  as  he  may  deem 
necessary  to  secure  accurate,  full  and  honest  returns,  and  values  for  taxation;  and 
county  auditors,  all  assessors,  and  parties  required  to  list  all  or  any  of  the  items 
named  in  said  statement,  shall  use  true  copies  of  said  blank  statement,  and  fill  up  the 
blanks  therein  with  the  true  value  in  money  of  the  several  items  therein  named; 
and  every  person  or  party  so  listing  property,  or  other  items  named  in  said  statement, 
shall  take  and  subscribe  an  oath  or  affirmation  according  to  law,  to  be  actually  admin- 
istered by  the  assessor,  to  the  effect  (adapting  the  form  to  the  capacity  in  which  the 
person  making  the  return  acts),  that  the  statement  contains,  as  he  verily  believed, 
a  true  account  of  all  the  taxable  personal  property,  moneys,  credits,  and  investments 
in  bonds,  stocks,  joint-stock  companies,  annuities  or  otherwise,  owned  or  controlled 
by  such  party,  for  his  own  use,  or  as  husband,  parent,  guardian,  trustee,  executor, 
administrator,  receiver,  accounting  officer,  agent,  factor,  or  otherwise,  and  also  of  all 
moneys,  credits,  investments  in  bonds,  stocks,  joint-stock  companies,  or  otherwise, 
held  for  him,  or  any  one  residing  in  this  state,  for  whom,  he  is  required  by  law  to  list, 
by  any  party  residing  in  or  out  of  this  state,  and  not  listed  for  taxation  in  pursuance 
of  law  in  this  state  by  such  holder,  and  every  interest  and  right,  legal  or  equitable, 
of  the  party  listing  and  of  those  for  whom  he  is  required  by  law  to  list  in  any  bonds, 
stocks,  joint-stock  companies,  or  otherwise,  which  he  is  required  by  law  to  list  for 
taxation,  and  that  the  value  affixed  to  each  of  said  items  is  the  value  thereof  as  ascer- 
tained by  the  usual  selling  price  thereof  for  cash,  at  voluntary  sales  thereof,  at  the 
time  and  place  of  listing;  and  if  there  be  no  usual  selling  price,  then  at  such  price  as 
could  be  obtained  therefor  in  money,  at  such  time  and  place,  and  that  he  has  not  made 
any  acknowledgment  or  agreement,  or  contracted  any  debt,  without  receiving  an 
adequate  consideration  therefor  or  resorted  to  any  device,  or  created  any  trust,  or  sold 
or  exchanged  or  disposed  of  any  money,  property,  or  effects,  which  were  taxable  in 
this  state,  for  United  States  bonds  or  other  non-taxable  securities  or  moneys,  for  the 
purpose  of  evading  taxation,  or  diminishing  the  amount  of  his  return  for  taxation, 
and  that  all  interest  that  he  has  or  owns  in  any  credit  or  evidence  of  indebtedness, 
secured  in  any  manner,  upon  real  estate  or  personal  property,  situated  outside  of  the 
county  in  which  he  resides,  or  in  any  taxable  stocks  or  bonds,  or  in  any  stocks  or 
bonds  of  any  foreign  corporation,  has  been  duly  listed  bv  him  for  taxation.  Each 
county  auditor  shall,  before  the  fifteenth  day  of  April,  annually,  issue  a  call  to  all 
the  assessors  of  his  county,  to  meet  at  his  office  or  some  other  place  designated  by 
him,  at  the  county  seat,  within  five  days,  for  consultation,  and  said  assessors  shall 
meet  as  so  ordered;  and  the  auditor  shall  meet  with  said  assessors,  and  answer  such 
questions  and  give  such  instructions  as  shall  tend  to  a  uniformity  in  the  action  of  the 
assessors  in  his  county,  and  it  shall  be  his  duty  to  specially  call  their  attention  to 
the  provisions  of  law  relating  to  their  duties,  and  to  the  listing  of  property,  and  to 
require  of  them  full  compliance  therewith;  and  the  auditor  shall  provide  and  deliver 
to  said  assessors  blank  forms  and  instructions,  or  forward  them  to  the  township 
clerks,  immediately  after  the  meeting  of  said  assessors.  (March  13,  1891,  88  v.  96; 
62  v.  114,  §  56.) 

§  2759.  STATEMENT  BY  BANKS;  DEDUCTIONS  BY  COUNTY  AUDITOR.— 
All  unincorporated  banks  and  bankers,  except  as  provided  in  §  2765,  shall  annually, 
between  the  first  and  second  Mondays  of  May.  make  out  and  return  to  the  auditor  of 
the  proper  county,  under  oath  of  the  owner  or  principal  officer  or  manager  thereof. 
a  statement  setting  forth: 

First  —  The  average    amount   of  notes  and  bills    receivable,    discounted   or  pur- 


62 


Private  Corporations  in  Ohio. 


Taxation  of  Corporations  —  Banks,  §§  2759a,  2759b. 


chased  in  the  course  of  business,  by  such  unincorporated  bank,  banker  or  bankers, 
and  considered  good  and  collectible. 

Second  —  The  average  amount  of  accounts  receivable. 

Third  —  The  average  amount  of  cash  and  cash  items  in  possession  or  in  transit. 

Fourth  —  The  average  amount  of  all  kinds  of  stocks,  bonds,  including  United 
States  government  bonds,  or  evidences  of  indebtedness,  held  as  an  investment,  or  in 
any  way   representing   assets. 

Fifth  —  The  amount  of  real  estate  at  its  assessed  value. 

Sixth  —  The  average  amount  of  all  deposits. 

Seventh  —  The  average  amount  of  accounts  payable. 

Eighth  —  The  average  amount  of  United  States  government  and  other  securities 
that  are  exempt  from  taxation. 

Ninth  —  The  true  value  in  money  of  all  furniture  and  other  property  not  otherwise 
herein  enumerated.  From  the  aggregate  sum  of  the  first  five  items  above  enumerated, 
the  said  auditor  shall  deduct  the  aggregate  sum  of  the  fifth,  sixth,  seventh  and  eighth 
items,  and  the  remainder  thus  obtained,  added  to  the  amount  of  item  nine,  shall  be 
deemed  to  be  the  property  employed  by  such  bank  or  bankers  in  the  business  of  bank- 
ing, and  shall  be  entered  on  the  duplicate  of  the  county  in  the  name  of  such  bank, 
banker  or  bankers,  and  taxes  thereon  shall  be  assessed  and  paid  on  the  same  as  pro- 
vided for  other  personal  property  assessed  and  taxed  in  the  same  city,  ward,  or 
township.     (April  16,   1900,  94  v.  347;  April  17,  1882,  79  v.  109;  R.  S.  1880;  April 


16,  1867,  64  v.  204,  §  10.) 

Deductions  of  liabilities. 

Private  bankers  cannot  deduct  their  liabili- 
ties from  their  moneys  and  credits. —  Ex- 
change Bank  v.  Hines,  3  Oh.  St.  1  (1853); 
Ellis  v.  Linck,  3  Oh.  St.  66  (1853). 

Deposits. 

Moneys  deposited  with  a  bank  or  banker 
(unless  special  deposits)  become  the  moneys 
of  the  bank  or  banker,  appertaining  to  the 
business  of  banking,  and  proper  to  be  listed 
with  the  other  moneys  belonging  to  that  busi- 
ness, and  this  is  equally  true  of  general 
deposits,  whether  they  happen  to  be  used  in 
the  discounting  of  paper,  or  held  in  reserve  to 
pay  probable  current  demands. —  Ellis  v. 
Linck,  3  Oh.  St.  66  (1853). 

What   must   be   averaged  and  returned. 

Under  the  act  of  April  13,  1852,  §  19,  all  the 
assets  and  resources  of  a  bank,  whether  specie 
or  balances  in  other  banks,  should,  if  employed 
in  any  manner  whereby  the  bank  received  a 
profit,  be  averaged  for  taxation.     So  balances 

§  2759a.  FURTHER  STATEMENT  REQUIRED.— The  said  bank,  banker  or 
bankers  shall,  at  the  same  time,  make  statement  under  oath,  of  the  amount  of  capital 
paid  in  or  employed  in  such  banking  business,  together  with  the  number  of  shares  or 
proportional  interest  each  shareholder  or  partner  has  in  such  association  or  partner- 
ship.    (April  17,   1882,  79  v.    109,  110.) 

§  2759b.  SAVINGS  BANKS.— That  the  provisions  of  section  2759  shall  apply 
to  and  govern  savings  banks  incorporated  under  the  act  of  April  16,  1867.  (April  16, 
1890,  87  v.  215.) 


upon  which  no  profit  was  received  were  not 
required  to  be  returned. —  Stark  County  Bank 
v.  McGregor,  6  Oh.  St.  45   (1856). 

Constitutionality. 

This  section  is  constitutional  except  to  the 
extent  of  including  the  entire  third  item 
among  those  from  which  the  deduction  is  to  be 
made. —  Treasurer  v.  Bank,  47  Oh.  St.  503 
(1890).  See  Patton  v.  Commercial  Bank,  10 
Dec.  321  (1900).  Section  cited  Chapman  v. 
First  Nat.  Bank,  56  Oh.  St.  310,  329    (1897). 

Principle  of  taxation. 

The  provision  of  the  statute  for  obtaining 
the  value  of  the  capital  stock  of  a  bank,  and 
the  provisions  for  obtaining  the  value  of  the 
capital  of  an  unincorporated  bank,  are  merely 
different  methods  provided  by  law,  which  is 
permissible,  for  arriving  at  the  true  value  in 
money  of  each  kind  of  propertv. —  See  Cleve- 
land'Trust  Co.  v.  Lander,  19  0.  C.  C.  271 
(1900)  ;   s.  c,  10  C.  D.  4f>2. 


Constitutionality. 

This  section  is  not  repugnant  to  either  §  2 
or  §  3  of  article  12  of  the  constitution. — 
Collett  v.  Springfield  Savings  Society,  13  O.  C. 
C.   131    (1896);   s.  c,  7  C.  D.  146. 


Deposits. 

The  deposits  in  such  societies  are  the  prop- 
erty of  the  depositors ;  the  societies  are  merely 
incorporated  agencies  for  the  depositors  as 
principals  to  receive,  loan  and  invest  the  sav- 


Miscellaneous  Provisions. 


63 


Taxation  of  Corporations  —  Banks,   SS   2760-2762. 


undivided  pmlils,  real  estate  arid  lurnil  nre  do 
not  add  tn  t  he  taxable  \  alue  oi  I  he  depositoi  b 
interests,  and  a  complete  taxation  of  all  the 
taxable  property  is  effected  bj  requirii] 
depositors  to  pay  upon  the  value  of  their  in- 
terests and  the  society  to  pay  upon  the  sur- 
plus, undivided  profit  .  real  estate  and  furni- 
ture.-—  < 'niicit  v.  Springfield  Savings  Society, 
L3  <).  C.  C    131    (1896). 


ings    of    the    latter. —  Collett    v.    Springfield 
Savings  Society,  13  0.  C.  C.  131    (1896). 

Subject  of  taxation. 

The  depositors  are  required  to  return  and 
pay  taxes  upon  the  value  of  their  interests  in 
the  society,  and  the  society  1"  return  and  pay 
taxes  upon  the  remainder  of  the  property  not 
the  reciprocal  of  such  interests.     The  surplus, 

§  2760.  HOW  AVERAGES  OBTAINED.—  The  averages  provided  for  in  the  pre- 
ceding section  shall  be  obtained  by  adding  together  the  amounts  of  each  item  above 
specified,  owned  by  or  standing  on  the  books  of  such  bank,  banker,  or  bankers,  on 
the  first  Monday  of  each  month  of  the  year  preceding  the  Monday  of  May  in  which 
the  return  is  made,  and  dividing  the  same  by  the  number  of  months  in  the  year:  pro- 
vided, that  in  cases  where  such  bank,  banker,  or  bankers  commenced  business  during 
the  preceding  year,  the  division  shall  be  made  by  the  number  of  months  elapsed  after 
the  commencement  of  such  business.     (April  16,  1867,  64  v.  204,   §   11.) 

§  2761.  PERSONS  COMMENCING  THE  BUSINESS  OF  BANKING  AFTER  THE 
DAY  PRECEDING  THE   SECOND   MONDAY  OF  APRIL;   HOW  TO  BE  LISTED.— 

When  any  person,  persons,  company,  or  association  unincorporated,  shall  commence 
or  engage  in  the  business  of  banking,  after  the  day  preceding  the  second  Monday  in 
April,  in  any  year,  the  average  value  of  whose  pefsonal  property  intended  to  be 
employed  in  such  business  shall  not  have  been  previously  entered  on  the  assessor's 
list  for  taxation,  in  said  county,  such  person,  persons,  company,  or  association  shall 
report  to  the  auditor  of  the  county  the  probable  average  value  of  the  personal  property 
by  him  or  them  intended  to  be  employed  in  such  business  until  the  day  preceding  the 
second  Monday  in  April  thereafter,  and  shall  pay  into  the  treasury  of  such  county  a 
sum  which  shall  bear  the  same  proportion  to  the  levy  for  all  purposes,  on  the  average 
value  so  employed,  as  the  time  from  the  day  on  which  he  or  they  shall  commence  or 
engage  in  such  business  as  aforesaid,  to  the  day  preceding  the  second  Monday  in 
April  next  succeeding,  shall  bear  to  one  year.     (April  5,  1859,  56  v.  175,  §  14.) 

§  2762.  SHARES  TO  BE  LISTED.—  All  the  shares  of  the  stockholders  in  any 
incorporated  bank  or  banking  association,  located  in  this  state,  whether  now  or  here- 
after incorporated  or  organized  under  the  laws  of  this  state  or  of  the  United  States, 
and  all  the  shares  of  the  stockholders  in  any  unincorporated  bank  located  in  this 
state,  the  capital  stock  of  which  is  divided  into  shares,  shall  be  listed  at  their  true 
value  in  money,  and  taxed  in  the  city,  ward,  or  village  where  such  bank  is  located, 
and  not  elsewhere.     (April  16,  1900,  94  v.  348;  April  16,  1867,  64  v.  204,  §  1.) 


Deduction  of  debts. 

The  holder  of  national  bank  shares  has  no 
right  under  the  statutes  to  deduct  his  legal 
bona  fide  debts  from  the  value  of  such  shares, 
but  he  is  legally  bound  to  pay  tax  upon  tin- 
assessed  value  of  such  shares  without  deduc- 
tion.—  Chapman  v.  First  Nat.  Bank,  56  Oh. 
St.  310  (1897);  Niles  v.  Shaw.  50  Oh.  St.  370 
(1893);  Whitbeck  v.  Mercantile  Nat.  Bank, 
127  U.  S.  193  (1S88);  Mercantile  Nat.  Bank 
v.  Shields,  59  Fed.  952   (1894). 

Value  of  shares. 

See  Chapman  v.  First  Nat.  Bank,  56  Oh.  St. 
310    (1897). 

Power  to  tax  national  bank  stock. 

The  state  has  power  to  tax  shares  in  the  na- 
tional banks  located  in  Ohio,  subject  to  the 
limitations  that  such  tax  shall  not  exceed  the 


rate  imposed  upon  other  moneyed  capital  of 
individuals,  nor  that  imposed  upon  shares  in 
state  banks,  as  provided  in  the  act  of  congress 
of  June  3,  1864.—  Frazer  v.  Siebern,  16  <  »h. 
St.  614  (1866);  Cleveland  Trust  Co.  v.  Lander, 
62  Oh.  St.  266  (1900).  See  Mercantile  Nat. 
Bank  v.  Hubbard.  9S  Fed.  465    (1899). 

What  shares  taxed. 

The  shares  in  national  banks  to  be  taxed 
are  to  be  understood  as  the  individual  prop- 
erty or  choses  of  the  stockholders,  as  contra- 
distinguished from  aliquot  parts  of  the  capital 
and  property  of  the  bank,  and  as  such  may  be 
taxed  at  their  full  value  without  deduction 
for  the  franchise,  for  real  estate  otherwi? 
taxed  or  for  untaxable  bonds  owned  by  the 
bank.— Frazer  v.  Siebern,  16  Oh.  St!  614 
(1866). 


64 


Private  Corporations  in  Ohio. 


Taxation  of  Corporations  —  Banks,   §§   2763-2766. 


Remedy  when  tax  is  excessive. 

Where  the  tax  on  shares  in  national  banks 
exceeds  the  rate  of  that  imposed  upon  the 
banks  of  the  state,  its  collection  will  only  be 
enjoined  upon  payment  of  a  sum  which  shall 
be  a  fair  equivalent  for  the  tax  on  state 
banks.— Frazer  v.  Siebern,  16  Oh.  St.  614 
(1866). 

§  5219,  R.  S.  U.  S. 

The  restriction  in  §  5219,  Revised  Statutes 
of  the  United  States,  as  to  the  taxation  of 
national  bank  shares  at  a  rate  not  greater 
titan  on  other  moneyed  capitals,  requires  that 
both  the  rate  per  centum  of  taxation  and  the 
value  of  the  assessment  against  such  shares 
shall  not  be  greater  than  on  other  moneyed 


capital  in  the  hands  of  individual  citizens  of 
the  state. —  Cleveland  Trust  Co.  v.  Lander, 
62  Oh.  St.  266    (1900). 

Bank  not  liable  for  back  taxes. 

An  agreement  by  a  bank  to  pay  the  taxes  i 
assessed  on  the  shares  of  stockholders  does  not' 
make  the  bank  liable  for  assets  not  returned 
or  admitted  by  the  bank  or  stockholders  to  b.' 
assessable^  nor  for  any  other  than  the  current 
tax  on  the  duplicate.  Such  agreement  does 
iMt  authorize  the  assessment  of  a  back  tax 
against  the  bank  upon  what  is  claimed  to  be 
newly-discovered  resources  not  returned  for 
back  years. —  Miller  v.  First  Nat.  Bank,  9  W. 
I..  B.  353  (1883);  Miller  v.  Fourth  Nat. 
Bank,   12  W.  L.  B.  66   (1884). 


§  2763.  TAX  ON  REAL  ESTATE. —  The  real  estate  of  any  such  bank  or  banking 
association  shall  be  taxed  in  the  place  where  the  same  may  be  located,  the  same  as 
the  real  estate  of  individuals.     (April  16,  1867,  64  v.  204,  §  2.) 

§  2764.  NAMES  OF  STOCKHOLDERS  AND  NUMBER  OF  SHARES  HELD  BY 
EACH. —  There  shall  at  all  times  be  kept  in  the  office  where  the  business  of  such 
bank  or  banking  association  is  transacted,  a  full  and  correct  list  of  the  names  and 
residences  of  the  stockholders  therein,  and  the  number  of  shares  held  by  each,  which 
shall  be  at  all  times  during  business  hours  open  to  the  inspection  of  all  officers  who 
are  or  may  be  authorized  to  list  or  assess  the  value  of  such  shares  for  taxation.  (April 
16,   1867,  64  v.   204,   §   3.) 

§  2765.  RETURN  TO  BE  MADE  BY  CASHIER  TO  THE  AUDITOR.—  The  cash- 
ier of  each  incorporated  bank,  or  of  each  unincorporated  bank  whose  capital  stock  is 
divided  into  shares  held  by  the  owners  of  such  bank,  shall  make  out  and  return  to 
the  auditor  of  the  county  in  which  every  such  bank  is  located,  between  the  first  and 
second  Monday  of  May,  annually,  a  report  in  duplicate  under  oath,  exhibiting  in 
detail,  and  under  appropriate  heads,  the  resources  and  liabilities  of  such  bank,  at  the 
close  of  business  on  the  Wednesday  next  preceding  said  second  Monday,  together  with 
a  full  statement  of  the  names  and  residences  of  the  stockholders  therein,  with  the 
number  of  shares  held  by  each,  and  the  par  value  of  each  share.  (April  16,  1900, 
94  v.  347;  April' 12,  1877,  74  v.  88,  §  1.) 


Shares     must     be     listed     in     names     of 

owners. 

There  is  no  authority  in  the  statutes  of  the 
state,  nor  of  the  United  States,  for  listing 
and  valuing  the  shares  in  a  national  bank  in 
the  aggregate,  and  placing  such  aggregate  on 
the  tax  list  in  the  name  of  the  bank.  Such 
shares,  when  listed  and  valued  for  taxation, 
are  required  to  be  placed  on  the  proper  tax 


list  in  the  names  of  the  respective  owners. — 
Miller   v.    First   Nat.   Bank,    46    Oh.    St.    424 

(18S9). 

Correction  of  return. 

The  correction  of  returns  made  by  the  cash- 
ier of  the  bank  to  the  county  auditor  is  pro- 
vided for  by  §  2769  and  not  by  §  27S2,  R.  S.— 
Miller  v.  First  Nat.  Bank,  supra. 


§  2766.  AUDITOR  TO  FIX  VALUE  OF  BANK  SHARES,  AND  REPORT  TO 
BOARD  OF  EQUALIZATION. —  Upon  receiving  such  report  the  county  auditor  shal! 
fix  the  total  value  of  the  shares  of  such  banks  according  to  their  true  value  in  money, 
and  deduct  from  the  aggregate  sum  so  found  the  value  of  the  real  estate  included  in 
the  statement  of  resources  as  the  same  stands  on  the  duplicate,  and  thereupon  he  shall 
make  out  and  transmit  to  the  annual  state  board  of  equalization  for  incorporated 
banks  a  copy  of  the  report  so  made  by  the  cashier,  together  with  the  valuation  of  such 
shares  as  so  fixed  by  the  auditor.  (March  9,  1883,  80  v.  54;  April  13,  1880,  77  v. 
191;  R.  S.  1880;  April  12,  1877,  74  v.  88,  §  2;  April  16,  1867,  64  v.  204,  §  5.) 


Miscellaneous  1  'rovisions. 


65 


Taxation  of  Corporations  —  Railroads,  §§  2770-2771. 


Discriminations   in   valuation. 

A   petition  for  an  injunction  againsl    ;i   tax 

on  bank  shares,  which  shows  thai  the  plain- 
tiff's property  was  valued  only  at  eighty  per 
cent,  of  its  line  value  in  money,  while  other 
property  in  the  county  was  valued  at  only 
forty  per  cent,  of  its  value,  and  avers  that 
such  valuations  were  unequal,  unjust  and 
illegal,  does  not  state  sufficient  facts. —  Wag- 
oner v.  Loomis,  37  Oh.  St.  571  (1881).  See 
Pelton  v.  National  Bank,  101  U.  S.  143  (1879)  ; 
Exchange  Nat.  Bank  v.  Miller,   19  Fed.  372 


Bank    \.    Treasurer,    25 


(1884);     Firsl     Nat. 
Fed.  749   (1885). 

Deduction  of  liabilities. 

The  holder  of  national  hard:  shares  has  no 
right  to  deduct  his  legal  bona  fide  debts  from 
the  value  of  such  -hares,  but  he  is  bound  to 
pay  taxes  on  the  full  assessed  value. —  Chap- 
man  v.  First  National  Bank/56  Oh.  St  310 
(1897);  Niles  v.  Shaw,  50  Oh 
Whitbeck  v.  Mercantile  Nat. 
193   (1888). 


.  St.  370  (1893); 
Bank,  127   U.  S. 


§  2769.  PROCEEDINGS  WHEN  BANK  FAILS  TO  MAKE  RETURN;  PENALTY 
FOR  MAKING  FALSE  STATEMENT.—  If  any  bank  shall  fail  to  make  out  and  fur- 
nish to  the  county  auditor  the  statement  required,  within  the  time  herein  fixed,  it 
shall  be  the  duty  of  said  auditor  to  examine  the  books  of  said  bank;  also,  to  examine 
any  officer  or  agent  thereof  under  oath,  together  with  such  other  persons  as  he  may 
deem  proper,  and  make  out  the  statement.  Any  bank  officer  failing  to  make  out  and 
furnish  to  the  county  auditor  the  statement,  or  willfully  making  a  false  statement, 
as  required  in  section  twenty-seven  hundred  and  sixty-five,  shall  be  liable  to  a  fine 
not  exceeding  one  hundred  dollars,  together  with  costs  and  other  expenses  incurred 
by  the  auditor  or  other  proper  officer  in  obtaining  such  statement  aforesaid;  and  said 
auditor  shall  have  the  same  powers,  and  the  probate  judge  of  the  county  shall  exer- 
cise the  same  powers,  and  perform  the  same  duties  in  aid  of  the  auditor  in  the  perform- 
ance of  his  duties  under  this  section,  as  are  authorized  by  law  in  cases  where  the 
county  auditor  is  informed,  or  has  reason  to  believe,  that  any  party  has  failed  to 
make  any  return,  or  has  made  a  false  return  for  taxation;  and  the  statement  so  made 
out  by  the  auditor  shall  in  all  respects  stand  as  the  statement  required  to  be  made  by 
the  cashier.     (April  16,  1867,  64  v.  204,  §  9.) 


Correction   of   returns. 

The  correction  of  returns  made  by  the  cash- 
ier of  a  bank  is  provided  for  by  this  section, 


and    not    bv    §    2782.— Miller    v.    First    Nat. 
Bank,  46  Oh.  St.  424  (1889). 


§  2770.  BOARD  OF  APPRAISERS  FOR  RAILROAD  COMPANY.— The  county 
auditors  of  the  several  counties  in  this  state  in  which  any  railroad  company  now  has, 
or  hereafter  may  have  its  track  and  roadway,  or  any  part  thereof,  shall  constitute  a 
board  of  appraisers  and  assessors  for  such  railroad  company;  any  railroad  company 
having  its  road,  or  any  part  thereof,  in  one  county  only,  the  auditor  of  such  county 
shall  constitute  such  board.     (May  1,   1862,  59  v.  88,  §  1.) 


§  2771.  PRESIDENT  OF  BOARD;  QUORUM;  SECRETARY:  RECORD  OF 
VOTES;  COPY  OF  MINUTES  TO  BE  KEPT  IN  AUDITOR'S  OFFICE.— The  auditor 
of  the  county  where  such  railroad  company  has  its  principal  office,  if  such  principal 
office  is  in  this  state,  and  if  such  principal  office  is  not  in  this  state,  then  the  auditor 
of  the  county  having  the  largest  city  or  village  upon  the  line  of  such  road  shall  be 
the  president  of  said  board,  whose  duty  it  shall  be  to  appoint  the  time  and  place  for 
the  meeting  of  such  board,  and  notify  the  proper  county  auditors  of  the  same,  at  least 
five  days  before  the  time  appointed  for  such  meeting.  In  the  absence  or  inability  of 
the  president,  the  board  shall  appoint  one  of  its  members  president  pro  tempore.  In 
all  meetings  of  any  such  board,  a  majority  of  such  county  auditors  shall  constitute  a 
quorum,  and  a  majority  of  those  present  at  any  meeting  having  a  quorum  shall  decide 
all  questions  submitted.  Each  board  shall  appoint  one  of  its  number  secretary,  and 
full  minutes  of  its  proceedings  shall  be  kept,  which  shall  consist  of  a  full  and  com- 
plete record  of  the  votes  of  each  member  of  said  board.  The  valuation  of  the  property 
shall  be  fixed  only  on  motion  made  and  duly  seconded.  On  all  such  motions  the  yeas 
and  nays  shall  be  called,  and  each  member's  vote  shall  be  recorded  by  the  secretary. 

LAW   GOV.    PRIV.    COR. —  5. 


66  Private  Corporations  in  Ohio. 

Taxation  of  Corporations  —  Railroads,  §  §  2772-2773. 

Immediately  after  the  board  has  adjourned,  the  secretary  shall  make  a  complete 
record  of  all  the  transactions  of  the  proceedings  of  the  board,  and  set  forth  therein 
the  names  and  official  capacity  of  the  officials  of  the  railroad  present  at  such  meeting. 
And  a  certified  copy  of  such  proceedings,  signed  by  the  president  and  secretary 
thereof,  shall  be  forwarded  at  once  to  the  county  auditor  of  each  county  constituting 
a  member  of  said  board,  and  the  same  shall  be  recorded  in  a  book  kept  in  the  county 
auditor's  office,  subject  to  the  inspection  of  any  person  during  office  hours,  and  the 
certified  copy  shall  alike  be  kept  on  file  in  said  county  auditor's  office,  and  for  like 
examination.     (May  1,  1862,  59  v.  88,  §  2;  April  30,  1891,  88  v.  417.) 

§  2772.  BOARD  OF  VALUATION  OF  RAILROAD  TO  MEET  ANNUALLY,  IN 
MAY;  DUTIES  OF  THE  BOARD. —  It  shall  be  the  duty  of  each  board  to  meet  in  the 
month  of  May,  in  the  present  and  each  succeeding  year,  at  such  time  as  the  president 
thereof  may  appoint;  and  if  no  meeting  be  appointed  by  him  before  the  second  Tues- 
day in  May,  the  several  county  auditors  shall  meet  on  that  day,  in  the  place  where 
the  proper  railroad  for  which  said  auditors  constitute  the  board,  as  aforesaid,  has  its 
principal  office,  or  in  the  principal  city  or  village  upon  the  line  of  such  road,  as  the 
case  may  be,  and  proceed  to  ascertain  all  the  personal  property,  which  shall  be  held 
to  include  road  bed,  water  and  wood  stations,  and  such  other  realty  as  is  necessary 
to  the  daily  running  operations  of  the  road,  moneys,  and  credits  of  such  company, 
and  the  undivided  profits,  reserved  or  contingent  fund  of  said  company,  whether  the 
same  may  be  in  moneys,  credits,  or  in  any  manner  invested,  and  the  actual  value 
thereof  in  money;  and  also  locomotives  and  cars  not  belonging  to  the  company,  but 
hired  for  its  use  or  run  under  its  control  on  its  road  by  a  sleeping  car  company  or 
other  company;  but  as  to  such  rolling  stock  not  belonging  to  it,  but  under  its  control, 
the  railroad  company  may  return  the  same  separate  from  its  own  property,  and  if  so 
returned,  the  board  shall  fix  the  valuation  of  such  property  separated,  but  include  the 
amount  in  the  aggregate  valuation.  Such  boards  shall  have  power  to  require  from 
the  president,  secretary,  treasurer,  receiver,  and  principal  accounting  officer  of  such 
road,  a  detailed  statement,  under  oath,  of  all  the  items  and  particulars  constituting 
such  property,  moneys,  and  credits,  and  the  value  thereof,  and  may  examine  the 
books  and  papers  cf  such  road,  and  any  or  all  of  its  officers,  receivers,  servants,  or 
agents,  under  oath,  touching  any  matter  relating  to  the  same.  Any  county  auditor 
present  at  such  meeting  is  authorized  and  empowered  to  administer  such  oath.  It 
shall  be  the  duty  of  said  board  of  appraisers  and  assessors  to  report  annually,  on  or 
before  the  first  Monday  in  the  month  of  June,  to  the  auditor  of  state,  the  amount 
assessed  upon  each  railroad  company,  specifying  the  total  sum,  and  amount  dis- 
tributed to  each  county;  which  shall  be  by  the  auditor  of  state  communicated  to  the 
general  assembly,  with  his  annual  report,  in  tabular  form.  (April  5,  1867,  64  v. 
114,  §  3.) 

§  2773.  PENALTY  FOR  OFFICERS,  ETC.,  REFUSING  TO  COMPLY  WITH 
REQUIREMENTS  OF  EOARD;  CONTEMPT  OF  BOARD;  PUNISHMENT.— Any 
president,  secretary,  receiver,  accounting  officer,  servant,  or  agent,  of  any  railroad 
company  having  any  portion  of  its  road-way  in  this  state,  who  shall  refuse  to  attend 
before  the  proper  board  of  appraisers  and  assessors  when  required  so  to  do,  or  refuse 
to  submit  to  the  inspection  of  said  board  any  books  or  papers  of  such  railroad  com- 
pany in  his  possession,  custody,  or  control,  or  shall  refuse  to  answer  such  questions  as 
may  be  put  to  him  by  said  board  or  its  order,  touching  the  business,  property,  moneys 
and  credits,  and  the  value  thereof,  of  said  railroad  company,  shall  be  guilty  of  a  mis- 
demeanor, and,  on  conviction  thereof,  before  any  court  of  competent  jurisdiction,  shall 
be  confined  in  the  jail  of  the  county  not  exceeding  thirty  days,  and  be  fined  in  any 
sum  not  exceeding  five  hundred  dollars  and  costs;  and  any  president,  secretary, 
receiver,  accounting  officer,  servant,  or  agent,  as  aforesaid,  so  refusing,  as  aforesaid, 
shall  be  deemed  guilty  of  contempt  of  such  board,  and  may  be  confined  by  order  of 


M ISCELLA  NEOUS    PROVISIONS. 


67 


Taxation  of  Corporations  —  Railroads,  SS  2774-2'i76. 


said  board  in  the  jail  of  the  proper  county  until  he  shall  comply  with  such  order,  and 
pay  the  costs  of  his  imprisonment.     (May  1,  1862,  59  v.  88,  §  4.) 

§  2774.  APPORTIONMENT  OF  VALUATION  OF  RAILWAY  PROPERTY.— 
The  value  of  such  property ,  moneys  and  credits,  of  any  railroad  company,  as  found 
and  determined  by  each  ooard,  shall  be  apportioned  by  said  board  among  the  several 
counties  through  which  such  road,  or  any  part  thereof,  runs,  so  that  to  each  county 
and  to  each  city,  village,  township  and  district,  or  part  thereof  therein,  shall  be 
apportioned  such  part  thereof  as  shall  equalize  the  relative  value  of  the  real  estate, 
structures,  and  stationary  personal  property  of  such  company  therein,  in  proportion 
to  the  whole  value  of  the  real  estate,  structures,  and  stationary  personal  property  of 
such  railroad  company  in  this  state;  and  so  that  the  rolling  stock,  main  track,  road 
bed,  supplies,  moneys  and  credits  of  such  company  shall  be  apportioned  in  the  same 
proportion  that  the  length  of  such  road  in  such  county  bears  to  the  entire  length 
thereof  in  all  said  counties  or  county,  and  to  each  city,  village,  and  district,  or  any 
part  thereof  therein,  provided  that  if  the  line  of  any  railroad  company  is  divided  into 
separate  divisions  or  branches,  so  much  of  the  rolling  stock  of  such  company  as 
belongs  to  or  is  used  solely  upon  any  one  of  such  divisions  or  branches  shall  be  appor- 
tioned in  the  same  manner  to  the  counties  or  county,  and  to  each  city,  village,  and  dis- 
trict, or  any  part  thereof  therein,  through  which  such  branch  or  division  runs,  and  the 
board  shall  certify  to  the  ccunty  i<.uctitor  of  each  county,  and  to  each  city,  incorporated 
village,  township  and  district,  or  any  part  thereof  therein  interested,  the  amount 
apportioned  to  his  county,  and  the  board  shall  make  and  forward  a  like  certificate, 
together  with  all  the  reports  of  the  various  railroad  officers,  and  other  papers  and  evi- 
dence which  formed  the  basis  of  their  valuation,  to  the  auditor  of  state,  for  the  use 
of  the  state  board  of  equalization  of  railroad  property.  It  shall  be  the  duty  of  the 
county  auditor,  upon  receiving  the  certificate  aforesaid,  to  apportion  the  amount 
therein  stated  to  the  cities,  villages,  townships,  districts,  or  parts  thereof;  ^ut  the 
auditor  shall  not  put  the  same  on  the  tax-list  until  he  shall  have  been  advised  of  the 
notion  of  said  state  authority,  when  the  proper  amounts  shall  be  entered  on  the  tax- 
lists.  (April  27,  1885,  82  v.  160;  R.  S.  1880;  March  16,  1867,  64  v.  58,  §  1;  May  1, 
1862,  59  v.  88,  §  5.) 


Validity  —  tax  district. 

This  section  is  valid.  A  railroad  passing 
through  a  taxing  district  created  under  the 
"  one  mile  assessment  pike  law."'  it  i^  subject 
to  taxation  in  such  district,  in  the  proportion 
fixed  under  this  section. —  Railroad  Co.  v. 
Commissioners,  48  Oh.  St.  249   (1891). 

How  rolling  stock  on  branches  or  divi- 
sions apportioned. 

See  State  ex  rel.  v.  Aldridge,  47  W.  L.  B. 
619   (1902). 


Telephone  and  telegraph   companies. 

The  principle  of  this  section  is  substan- 
tially applied  to  telephone  and  telegraph  com- 
panies.—  State  ex  rel.  v.  Jones,  51  Oh.  St. 
492,  508    (1S94). 

Construction  of  law  in  1881. 

See  Wabash,  etc.,  Ry.  Co.  v.  Kelsey,  11  W. 
L.   B.  234    (1881). 


§  2775.  COMPENSATION  OF  MEMBERS  OF  THE  BOARD.—  Each  county 
auditor  shall  be  paid  from  the  treasury  of  his  county  the  sum  of  three  dollars  for  each 
day's  attendance  as  a  member  of  any  board  aforesaid  under  this  chapter,  and  five  cents 
a  mile  going  to  and  returning  from  its  place  of  meeting.    (May  1,  1862,  59  v.  88,  S  7.) 

§  2776.  HOW  PORTION  OF  VALUE  FOR  THIS  STATE  FOUND  WHEN  PART 
OF  ROAD  IN  ANOTHER. —  When  any  railroad  company  has  part  of  its  road  in  this 
state  and  part  thereof  in  any  other  state  or  states,  the  proper  board  shall  take  the 
value  of  such  property,  moneys,  and  credits  of  such  company  so  found  and  determined, 
as  aforesaid,  and  divide  it  in  the  proportion  the  length  of  such  road  in  this  state 
bears  to  the  whole  length  of  such  road,  and  determine  the  principal  sum  for  the 
value  of  such  road  in  this  state  accordingly,  equalizing  the  relative  value  thereof 
in  this  state,  as  above  provided.     (May  1,  1862,  59  v.  88,  §  8.) 


58  Private  Corporations  in  Ohio. 


Taxation     of   porporations  —  Express,    Telegraph,    Telephone,    §§    2777,    2778. 


§  2777.     WHO  DEEMED  EXPRESS,  TELEGRAPH  OR  TELEPHONE  COMPANY. 

—  Any  person  or  persons,  joint  stock  association  or  corporation,  wherever  organized 
or  incorporated,  engaged  in  the  business  of  conveying  to,  from,  or  through  this  state, 
or  any  part  thereof,  money,  packages,  gold,  silver,  plate  or  other  article  by  express, 
not  including  the  ordinary  lines  of  transportation  of  merchandise  and  property  in 
this  state,  shall  be  deemed  to  be  an  express  company;  any  person  or  persons,  joint 
stock  association  or  corporation,  wherever  organized  or  incorporated,  engaged  in  the 
business  of  transmitting  to,  from,  through,  or  in  this  state,  telegraphic  messages, 
shall  be  deemed  to  be  a  telegraph  company;  and  any  person  or  persons,  joint  stock 
association  or  corporation,  wherever  organized  or  incorporated,  engaged  in  the  busi- 
ness of  transmitting  to,  from,  through,  or  in  this  state,  telephonic  messages,  shall  be 
deemed  to  be  a  telephone  company.  (May  10,  1894,  91  v.  220;  April  27,  1893,  90 
v.  330;  May  1,  1862,  59  v.  91,  §  5.) 


Constitutionality. 

The  act  of  91  v.  237  relating  to  express 
companies  was  held  constitutional. — Express 
Co.    v.    State,    55    Oh.    St.    69     (1896);    State 


ex  rel.  v.  Jones.  51  Oh.  St.  492  (1894);  West- 
ern Union  Co.  v.  Mayer,  28  Oh.  St.  521 
(1876);    Adams  Express  Co.   v.   Poe,  61   Fed. 

470  (1894). 


§  2778.  ANNUAL  STATEMENT  TO  AUDITOR  OF  STATE.—  Every  express, 
telegraph  and  telephone  company  defined  in  section  2777,  doing  business  in  this  state, 
shall  annually,  between  the  first  and  thirty-first  days  of  May,  under  the  oath  of  the 
person  constituting  such  company,  if  a  person,  or  under  the  oath  of  the  president, 
secretary,  treasurer,  superintendent  or  chief  officer  in  this  state  of  such  association  or 
corporation,  if  an  association  or  corporation,  make  and  file  with  the  auditor  of  state 
a  statement,  in  such  form  as  the  auditor  of  state  may  prescribe,  containing  the  fol- 
lowing facts: 

1.  The  name  of  the  company. 

2.  The  nature  of  the  company,  whether  a  person  or  persons,  or  association  or  cor- 
poration, and  under  the  laws  of  what  state  or  country  organized. 

3.  The  location  of  its  principal  office. 

4.  The  name  and  post-office  address  of  the  president,  secretary,  auditor,  treasurer 
and  superintendent  or  general  manager. 

5.  The  name  and  post-office  address  of  the  chief  officer  or  managing  agent  of  the 
company  in  Ohio. 

6.  The  number  of  shares  of  the  capital  stock. 

7.  The  par  value  and  market  value,  or  if  there  be  no  market  value,  the  actual 
value  of  its  shares  of  stock  on  the  first  day  of  May. 

8.  A  detailed  statement  of  the  real  estate  owned  by  the  company  in  Ohio,  where 
situate,  and  the  value  thereof  as  assessed  for  taxation. 

9.  A  full  and  correct  inventory  of  the  personal  property,  including  moneys  and 
credits,  owned  by  the  company  in  Ohio  on  the  first  day  of  May,  where  situate,  and  the 
value  thereof. 

10.  The  total  value  of  the  real  estate  owned  by  the  company  and  situate  outside 
of  Ohio. 

11.  The  total  value  of  the  personal  property  owned  by  the  company  and  situate 
outside  of  Ohio. 

12.  In  the  case  of  telegraph  and  telephone  companies,  the  whole  length  of  their 
lines,  and  the  length  of  so  much  of  their  lines  as  is  without  and  is  within  the  state  of 
Ohio,  which  lines  shall  include  what  said  telegraph  and  telephone  companies  control 
and  use  under  lease  or  otherwise;  also,  the  miles  of  wire  in  each  taxing  district  in 
Ohio. 

13.  In  the  case  of  telegraph  and  express  companies,  the  entire  gross  receipts  of 
the  company,  from  whatever  source  derived,  for  the  year  ending  the  first  day  of 
May,  of  business  wherever  done. 

14.  In  the  case  of  telegraph  and  express  companies,  the  gross  receipts  for  the 


MlS  C  ELL  A  N  E.O  U  S   Provisions. 


69 


Taxation  of  Corporations  —  Express,  Telegraph,  Telephone,.  §  2778a. 


year  ending  the  first  day  of  May,  from  whatever  source  derived,  of  each  office  within 
the  state  of  Ohioy  and  the  total  gross  receipts  of  the  company  for  such  period  in  Ohio. 

15.  In  the  case  of  express  companies,  the  whole  length  of  the  lines  of  rail  and 
water  routes,  over  which  the  company  did  business  on  the  first  day  of  May,  and  the 
length  of  so  much  of  said  lines  of  land  and  water  transportation  as  is  without  and 
is  within  Ohio,  naming  the  lines  within  Ohio. 

16.  Such  other  facts  and  information  as  the  auditor  of  state  may  require  in  the 
form  of  returns  prescribed  by  him. 

Blanks  for  making  the  above  statement  shall  be  prepared,  and,  on  application, 
furnished  any  company  by  the  auditor  of  state.  Express,  telegraph  and  telephone 
companies  shall  not  be  required  to  make  returns  under,  and  shall  not  be  governed  by 
the  provisions  of  section  2744  of  the  Revised  Statutes.  (May  10,  1894,  91  v.  220; 
April  27,  1893,  90  v.  330;  April  13,  1865,  62  v.  174,  §  1.) 


Involuntary  payment  —  what  ie 

See  Ratterman  v.  Express  Co.,  49  Oh.  St. 
608  (1892);  Western  Union  Co.  v.  Maver,  28 
Oh.   St.  521    (1876). 

■When     receipts    from    interstate     com- 
merce taxable. 

Ratterman  v.  Express  Co.,  49  Oh.  St.  608, 
618   (1892);   Western  Union  Co.  v.  Mayer,  28 


Oli.  St.  r>21  (1876);  Express  Co.  v.  State,  55 
Oh.  St.  69  (1890);  Ratterman  v.  Western 
Union  Telegraph  Co.,  127  U  S.  411  (1888); 
Adams  Express  Co.  v.  Auditor,  106  U.  S.  185 
(1897);  Adams  Express  Co.  v.  Auditor.  165 
U.  S.  174  (1897);  United  States  Express  Co. 
v.  Poe,  61  Fed.  475   (1894). 


§  2778a.  STATE  BOARD  OF  APPRAISERS  AND  ASSESSORS;  ASSESSMENTS 
BY;  CORRECTION  THEREOF.— The  auditor  of  state,  treasurer  of  state  and  attor- 
ney-general shall  constitute  a  board,  named  the  state  board  of  appraisers  and  assess- 
ors, of  which  board  the  auditor  shall  be  ex  officio  president.  In  the  absence  or  inability 
of  the  auditor,  the  board  shall  appoint  one  of  its  members  president  pro  tempore. 
The  board  shall  appoint  a  secretary  and  full  minutes  of  its  proceedings  shall  be  kept. 
The  board  shall,  annually,  on  the  first  Monday  in  June,  meet  in  the  office  of  the 
auditor  of  state,  for  the  purpose  of  assessing  the  property  of  express,  telegraph,  and 
telephone  companies  in  Ohio.  On  the  meeting  of  the  board,  the  auditor  of  state 
shall  lay  before  the  board  the  statements  and  schedules  returned  to  him  under  sec- 
tion 2778.  The  said  board  shall  proceed  to  ascertain  and  assess  the  value  of  the 
property  of  said  express,  telegraph,  and  telephone  companies  in  Ohio,  and  in  deter- 
mining the  value  of  the  property  of  said  companies  in  this  state,  to  be  taxed  within 
the  state  and  assessed  as  herein  provided,  said  board  shall  be  guided  by  the  value  of 
said  property  as  determined  by  the  value  of  the  entire  capital  stock  of  said  com- 
panies, and  such  other  evidence  and  rules  as  will  enable  said  board  to  arrive  at  the 
true  value  in  money  of  the  entire  property  of  said  companies  within  the  state  of  Ohio, 
in  proportion  which  the  same  bears  to  the  entire  property  of  said  companies,  as  deter- 
mined by  the  value  of  the  capital  stock  thereof,  and  the  other  evidence  and  rules  as 
aforesaid.  The  board  may  adjourn  from  time  to  time  until  the  business  before  it  is 
finally  disposed  of.  In  case  any  company  fails  or  refuses  to  make  the  statement 
required  by  law,  or  furnish  the  board  any  information  requested,  the  board  shall 
inform  itself,  as  best  it  may,  on  the  matters  necessary  to  be  known,  in  order  to  dis- 
charge its  duties  with  respect  to  the  assessment  of  the  property  of  such  company. 
At  any  time  after  the  meeting  of  the  board  on  the  first  Monday  in  Tune,  and  before 
the  assessment  of  the  property  of  any  company  is  determined,  any  company  or  per- 
son interested  shall  have  the  right,  on  written  application,  to  appear  before  the  board 
and  be  heard  in  the  matter  of  the  valuation  of  the  property  of  any  company  for  tax- 
ation. After  the  assessment  of  the  property  of  any  company  for  taxation  by  the 
board,  and  before  the  certification  by  the  auditor  of  state  of  the  apportioned  valua- 
tion to  the  several  counties,  as  provided  in  section  2780,  the  board  may,  on  the  appli- 
cation of  any  interested  person  or  company,  or  on  its  own  motion,  correct  the  assess- 
ment or  valuation  of  the  property  of  any  company,  in  such  manner  as  will,  in  its  judg- 


70  Private  Corporations  in  Ohio. 


Taxation   of    Corporations  —  Express,    Telegraph,    Telephone,    §§    2779,    2780. 


ment,  make  the  valuation  thereof  just  and  equal.  The  provisions  of  section  167 
of  the  Revised  Statutes  shall  apply  to  the  correction  of  any  error  or  over  valuation  in 
the  assessment  of  property  for  taxation  by  the  state  board  of  appraisers  and  assessors, 
and  to  the  remission  of  taxes  and  penalties  illegally  assessed  thereon.  (May  10,  1894, 
91  v.  220;  April  27,  1893,  90  v.  330.) 

Soe  Western  Union  Tel.  Co.  v.  Poe,  61  Fed.  449  (1894) ;  Western  Union  Tel.  Co.  v.  Poe,  64 
Fed.  9   (1894). 

§  2779.  PENALTY  FOR  FAILURE  TO  FILE  STATEMENT;  FURTHER  POW- 
ERS OF  BOARD;  PENALTY  FOR  REFUSAL  TO  TESTIFY  OR  BRING  BOOKS; 
STATUTES  AS  TO  FALSE  RETURNS  APPLICABLE. —  In  case  any  company 
required  to  file  a  statement  under  the  provisions  of  section  2778,  fails  to  make  and 
file  such  statement  on  or  before  the  thirty-first  day  of  May,  such  company  shall  be 
subject  to  a  penalty  of  five  hundred  dollars,  and  an  additional  penalty  of  one  hun- 
dred dollars  for  each  day's  omission  after  the  thirty-first  day  of  May  to  file  such 
statement,  said  penalty  to  be  recovered  by  action  in  the  name  of  the  state,  and,  on 
collection,  paid  into  the  state  treasury  to  the  credit  of  the  general  revenue  fund.  The 
attorney-general,  on  the  request  of  the  state  board  of  appraisers  and  assessors,  shall 
institute  such  action  against  any  company  so  delinquent  in  the  court  of  common  pleas 
of  Franklin  county.  That  the  state  board  of  appraisers  and  assessors  shall  have  power 
to  require  the  president,  secretary,  treasurer,  receiver,  superintendent  or  managing 
agent,  or  other  officer,  or  employe  or  agent,  of  any  express,  telegraph,  and  telephone 
company  to  attend  before  the  board,  and  bring  with  him  for  the  inspection  of  the 
board,  any  books  or  papers  of  such  company  in  his  possession,  custody  or  control,  and 
to  testify  under  oath  touching  any  matter  relating  to  the  business,  property,  moneys 
or  credits  and  the  value  thereof,  of  such  company.  Any  member  of  the  board  is 
authorized  and  empowered  to  administer  such  oath.  Any  officer,  employe  or  agent 
of  such  company  who  shall  refuse  to  attend  before  the  board  when  required  to  do  so, 
or  shall  refuse  to  bring  with  him  and  submit  for  the  inspection  of  the  board  any 
books  or  papers  of  such  company  in  his  possession,  custody  or  control,  or  shall  refuse 
to  answer  any  question  put  to  him  by  the  board  or  any  member  thereof,  touching  the 
business,  property,  moneys  and  credits  and  the  value  thereof,  of  such  company,  shall 
be  guilty  of  a  misdemeanor,  and  on  conviction  thereof  before  any  court  of  competent 
jurisdiction  shall  be  fined  not  more  than  five  hundred  dollars  or  imprisoned  not  more 
than  thirty  days,  or  both;  and  any  officer,  employe  or  agent  of  such  company  so 
refusing,  as  aforesaid,  shall  be  deemed  guilty  of  contempt  of  such  board,  and  may  be 
confined,  by  order  of  said  board,  in  the  jail  of  the  proper  county  until  he  shall  comply 
with  the  requirement  of  the  board  and  pay  the  costs  of  his  imprisonment.  The  state 
board  of  appraisers  and  assessors  shall  have  and  may  exercise  all  the  powers  possessed 
by  county  auditors  under  sections  2781  to  2785  inclusive,  of  the  Revised  Statutes; 
and  said  express,  telegraph,  and  telephone  companies  shall  be  subject  to  all  the  pro- 
visions and  penalties  of  said  sections.  (May  10,  1894,  91  v.  222;  April  27,  1893,  90 
v.  332;  May  1,  1862,  59  v.  91,  §§  2,  3.) 

§  2780.  REPORT  OF  BOARD;  FILING  OF  STATEMENTS,  ETC.;  DEDUCTION 
OF  VALUE  OF  REAL  ESTATE;  APPORTIONMENT  AND  TAXATION  OF  VALU- 
ATIONS.—  The  state  board  of  appraisers  and  assessors  shall,  on  or  before  the  first 
Monday  in  August,  report  to  the  auditor  of  state  the  total  value  of  the  property  of 
express,  telegraph  and  telephone  companies  in  Ohio,  as  ascertained  and  assessed  by 
the  board;  at  the  same  time,  the  board  shall  file  with  the  auditor  of  state  the  state- 
ments of  the  various  companies  and  other  papers  before  it.  The  auditor  of  state  shall 
deduct  from  the  total  value  of  the  property  of  each  of  said  companies  in  Ohio,  the 
value,  as  assessed  for  taxation,  of  any  real  estate  situate  in  Ohio  and  owned  by  such 
company.     The  value  of  the  property  of  said  companies  in  Ohio,  after  deducting  the 


Miscellaneous  Provisions.  71 


Taxation  of  Corporations  —  Freight  Line,  Equipment,  S§  2780-7  2780-8. 


value  of  the  real  estate,  shall  be  apportioned  by  the  auditor  of  state  among  the  sev- 
eral counties  through  or  into  which  the  lines  of  such  telegraph  or  telephone  com- 
panies run,  so  that  to  each  county  shall  be  apportioned  such  part  of  the  entire  valuation 
as  will  equalize  the  relative  value  of  the  property  of  the  company  therein,  in  propor- 
tion to  the  whole  value  of  the  property  of  the  company  in  the  state,  and  in  the 
proportion  that  the  length  of  the  lines  of  wire  owned  by  the  company,  or  in  the 
county  bears  to  the  whole  length  of  the  lines  of  wire  in  the  state.  The  value  of  the 
property  of  any  express  company  shall  be  apportioned  by  the  auditor  of  state  among 
the  several  counties  in  which  the  company  does  business,  in  the  proportion  that  the 
gross  receipts  in  each  county  bear  to  the  entire  gross  receipts  in  the  state.  The 
auditor  of  state  shall,  on  or  after  the  fifteenth  day  of  August,  certify  to  the  county 
auditor  the  amount  apportioned  to  his  county,  and  the  county  auditor,  upon  receiving 
such  certificate,  shall  apportion  the  amount  therein  stated  among  the  cities,  villages, 
townships  or  other  taxing  districts,  after  the  same  method  used  for  the  apportionment 
of  the  valuation  in  the  state  among  the  counties;  and  the  county  auditor  shall  place 
the  apportioned  valuation  on  the  tax  duplicate,  and  taxes  shall  be  levied  and  col- 
lected thereon  at  the  same  rate  and  in  the  same  manner  as  taxes  are  levied  and  col- 
lected on  other  personal  property  in  the  taxing  district  in  question.  (May  10,  1894, 
01  v.  223;  April  27,  1893,  90  v.  332;  February  24,  1863,  60  v.   11,  §   1.) 

§  2780-7.  Sec.  1.  FREIGHT  LINE  AND  EQUIPMENT  COMPANIES  DEFINED. 
—  Any  person  or  persons,  joint  stock  association  or  corporation,  wherever  organized 
or  incorporated,  engaged  in  the  business  of  operating  cars,  not  otherwise  listed  for 
taxation  in  Ohio,  for  the  transportation  of  freight,  whether  such  freight  be  owned  by 
such  company,  or  any  other  person  or  company,  over  any  railway  line  or  lines  in 
whole  or  part  within  this  state,  such  line  or  lines  not  being  owned,  leased  or  operated 
by  such  company,  whether  such  cars  be  termed  box,  flat,  coal,  ore,  tank,  stock,  gon- 
dola, furniture  or  refrigerator  cars,  or  by  some  other  name,  shall  be  deemed  to  be  a 
freight-line  company;  any  person  or  persons,  joint  stock  association  or  corporation, 
wherever  organized,  engaged  in  the  business  of  furnishing  or  leasing  cars,  of  what- 
soever kind  or  description,  to  be  used  in  the  operation  of  any  railway  line  or  lines, 
wholly  or  partially  within  this  state,  such  line  or  lines  not  being  owned,  leased  or 
operated  by  such  company,  and  such  cars  not  being  otherwise  listed  for  taxation  in 
Ohio,  shall  be  deemed  to  be  an  equipment  company.     (March  30,  1896,  92  v.  89.) 

§  2780-8.  Sec.  2.  ANNUAL  STATEMENTS  OF  SAME;  BLANKS;  EXEMP- 
TIONS.—  Every  freight-line  and  equipment  company  defined  in  section  one  (1) 
(§  2780-7)  hereof,  doing  business  or  owning  cars  which  are  operated  in  this  state 
shall,  annually,  between  the  first  and  thirty-first  days  of  May,  under  the  oath  of  the 
person  constituting  such  company,  if  a  person,  or  under  the  oath  of  the  president, 
secretary,  treasurer,  superintendent  or  chief  officer  in  this  state  of  such  association 
or  corporation,  if  an  association  or  corporation,  make  and  file  with  the  auditor  of  state 
a  statement,  in  such  form  as  the  auditor  of  state  may  prescribe,  containing  the  fol- 
lowing facts: 

1.  The  name  of  the  company. 

2.  The  nature  of  the  company,  whether  a  person  or  persons,  or  association  or  cor- 
poration, and  under  the  laws  of  what  state  or  country  organized. 

3.  The   location  of   its   principal   office. 

4.  The  name  and  post  office  address  of  the  president,  secretary,  auditor,  treasurer, 
and  superintendent  or  general  manager. 

5.  The  name  and  post  office  address  of  the  chief  officer  and  managing  agent  of 
the  company  in  Ohio. 

6.  The  number  of  shares  of  the  capital  stock. 

7.  The  par  value  and  market  value,  or,  if  there  be  no  market  value,  the  actual 
value  of  the  shares  of  stock  on  the  first  day  of  May. 


72  Private  Corporations  in  Ohio. 

Taxation  of  Corporations  —  Freight  Line,  Equipment,   §  2780-9. 

8.  A  detailed  statement  of  the  real  estate  owned  by  the  company  in  Ohio,  where 
situate,  and  the  value  thereof  as  assessed  for  taxation. 

9.  The  total  value  of  the  real  estate  owned  by  the  company  and  situate  outside 
of  Ohio. 

10.  The  whole  length  of  the  lines  of  railway  over  which  the  company  runs  its 
cars,  and  the  length  of  so  much  of  said  lines  as  is  without  and  is  within  the  state  of 
Ohio. 

11.  In  the  case  of  an  equipment  company,  the  whole  number  and  value  of  the 
cars  owned  and  leased  by  the  company,  classifying  the  cars  according  to  kind;  also, 
the  whole  length  of  the  lines  of  railway,  wherever  located,  operated  by  the  companies 
(naming  them),  to  which  cars  owned  by  such  equipment  (company)  are  leased,  and 
the  length  of  so  much  of  said  lines  as  is  without  and  is  within  the  state  of  Ohio,  giv- 
ing the  name  and  location  of  the  lines  wholly  or  partially  within  the  state  of  Ohio. 

12.  Such  other  facts  and  information  as  the  auditor  of  state  may  require  in  the 
form  of  returns  prescribed  by  him. 

Blanks  for  making  the  above  statement  shall  be  prepared,  and,  on  application, 
furnished  any  company  by  the  auditor  of  state.  Freight-line  and  equipment  com- 
panies shall  not  be  required  to  make  returns,  and  shall  not  be  governed  by  the  pro- 
visions of  section  2744  of  the  Revised  Statutes.     (March  30,  1896,  92  v.  89.) 

§  2780-9.  Sec.  3.  STATE  BOARD  OF  APPRAISERS  AND  ASSESSORS;  MEM- 
BERS;    OFFICERS;     MINUTES;     MEETING;     RIGHT    TO     APPEAR,     ETC.— The 

auditor   of   state,   treasurer  of   state   and    attorney-general  shall   constitute    a   board 
named  the  state  board  of  appraisers  and  assessors,  of  which  board  the  auditor  of  state 
shall  be  ex  officio  president.     In  the  absence  or  inability  of  the  auditor,  the  board  shall 
appoint  one  of  its  members  president  pro  tempore.     The  board  shall  appoint  a  secre- 
tary and  full  minutes  of  its  proceedings  shall  be  kept.     The  board  shall,  annually, 
on  the  first  Monday  in  June,  meet  in  the  office  of  the  auditor  of  state,  for  the  purpose 
of  determining  the  amount  and  value  of  the  proportion  of  the  capital  stock  of  freight- 
line  and  equipment  companies  representing  capital  and  property  of  such  companies 
owned  and  used  in  Ohio.     On  the  meeting  of  the  board,  the  auditor  of  state  shall  lay 
before  it  the  statements  and  schedules  returned  to  him  under  section  two  (2)  (§  2780-8) 
hereof.     The  board  shall  proceed  to  ascertain  and  determine,  on  or  before  the  second 
Monday  in   July,  the  amount  and  value  of  the  proportion   of  the   capital   stock  of 
freight-line   and    equipment    companies,    representing    capital   and   property    of   such 
companies  owned  and  used  in  Ohio,  and  in  determining  the  same,  shall  be  guided  in 
each  case  by  the  proportion  of  the  capital  stock  of  the  company  representing  rolling 
stock,  which  the  miles  of  railroad  over  which  such  company  runs  cars  or  its  cars  are 
run  in  Ohio  bear  to  the  entire  number  of  miles  in  Ohio  and  elsewhere  over  which  such 
company  runs  cars  or  its  cars  are  run,  and  such  other  rules  and  evidence  as  will 
enable  the  board  to  determine,  fairly  and  equitably,  the  amount  and  value  of  the 
capital  stock  of  such  company  representing  capital  and  property  owned  and  used  in 
the  state  of  Ohio.    The  board  may  adjourn  from  time  to  time  until  the  business  before 
it  is  finally  disposed  of.     In  case  any  company  fails  or  refuses  to  make  the  statement 
required  by  law,  or  furnish  the  board  with  any  information  requested,  the  board  shall 
inform  itself  as  best  it  may  on  the  matters  necessary  to  be  known  in  order  to  dis- 
charge its  duty  under  this  act.     At  any  time  after  the  meeting  of  the  board  on  the 
first  Monday  in  June,  and  before  the  amount  and  value  of  the  capital  stock  of  any 
company  representing  capital   and  property  owned  and  used  in  Ohio  is  determined, 
any  company   or  person  interested  shall   have  the  right,   on  written   application,  to 
appear  before  the  board  and  be  heard  in  the  matter  of  determination.     After  fixing 
the  amount  and  value  of  the  capital  stock  of  any  company  representing  capital  and 
property  owned  and  used  in  Ohio,  and  before  the  certification  to  the  auditor  of  state 
of  such  amount,  as  provided  in  section  five  (5)  (§  2780-11)  hereof,  the  board  may,  on 
the  application  of  any  person  or  company  interested,  or  on  its  own  motion,  review  and 


Miscellaneous  Provisions.  73 


Taxation    of   Corporations  —  Freight    Line,    Equipment,    SS    2780-10-2780-11. 


correct  its  action  in  such  manner  as  it  may  deem  just  and  proper.     (March  30,  1896, 
92  v.  89.) 

§  2780-10.  Sec.  4.  PENALTY,  RECOVERY  AND  DISPOSITION  OF  SAME.— 
In  case  any  company  required  to  file  a  statement  under  the  provisions  of  section  two 
(2)  (§  2780-8)  hereof  fails  to  make  and  file  such  statement  on  or  before  the  thirty- 
first  day  of  May,  such  company  shall  be  subject  to  a  penalty  of  five  hundred  dollars 
and  an  additional  penalty  of  one  hundred  dollars  for  each  day's  omission  after  the 
thirty-first  day  of  May  to  file  such  statement,  said  penalty  to  be  recovered  by  action 
in  the  name  of  the  state,  and  on  collection  paid  into  the  state  treasury  to  the  credit 
of  the  general  revenue  fund.  The  attorney-general,  on  the  request  of  the  auditor  of 
state,  shall  institute  such  action  against  any  company  so  delinquent,  in  the  court  of 
common  pleas  at  Franklin  county,  or  of  any  county  into  or  through  which  any  rail- 
road line  passes,  over  which  the  cars  of  such  freight-line  or  equipment  company  are 
running.  Service  of  summons  may  be  made  in  the  manner  provided  in  section  five 
(5)  (§  2780-11)  of  this  act  in  suits  for  the  collection  of  the  tax  against  such  company. 
The  state  board  of  appraisers  and  assessors  shall  have  power  to  require  the  presi- 
dent, secretary,  treasurer,  receiver,  superintendent  or  managing  agent,  or  other 
officer,  or  employe  or  agent  of  any  freight-line  or  equipment  company,  to  attend 
before  the  board  and  bring  with  him,  for  the  inspection  of  the  board,  any  books  or 
papers  of  such  company  in  his  possession,  custody  or  control,  and  to  testify  under  oath 
touching  any  matter  relating  to  the  organization,  property  and  business  of  such 
company.  Any  member  of  the  board  is  authorized  and  empowered  to  administer  such 
oath.  Any  officer,  employe  or  agent  of  such  company  who  shall  refuse  to  attend 
before  the  board  when  required  to  do  so,  or  shall  refuse  to  bring  with  him  and  submit, 
for  the  inspection  of  the  board,  any  books  or  papers  of  such  company  in  his  possession, 
custody  or  control,  or  shall  refuse  to  answer  any  question  put  to  him  by  the  board  or 
any  member  thereof,  touching  the  organization,  business  or  property  of  such  company, 
shall  be  guilty  of  a  misdemeanor,  and  on  conviction  thereof  before  any  court  of  com- 
petent jurisdiction,  shall  be  fined  not  more  than  five  hundred  dollars  or  imprisoned 
not  more  than  thirty  days,  or  both;  and  any  officer,  employe  or  agent  of  such  company 
so  refusing  as  aforesaid,  shall  be  deemed  guilty  of  contempt  of  such  board  and  may 
be  confined  by  order  of  such  board,  in  the  jail  of  the  proper  county  until  he  shall  com- 
ply with  the  requirements  of  the  board  and  pay  the  costs  of  the  imprisonment. 
(March  30,  1896,  92  v.  89.) 

§  2780-11.  Sec.  5.  ANNUAL  REPORT;  ASSESSMENT  AND  COLLECTIONS; 
PENALTY. —  The  state  board  of  appraisers  and  assessors  shall,  on  the  first  Monday  in 
August,  report  to  the  auditor  of  state  the  amounts  :Lxed  by  it  as  the  value  of  the  capi- 
tal stock  representing  capital  and  property  of  freight-line  and  equipment  companies 
employed  and  used  in  Ohio;  at  the  same  time  the  board  shall  file  with  the  auditor 
of  state  the  statements  of  the  various  companies  and  other  papers  before  it.  It  shall 
be  the  duty  of  the  auditor  of  state,  in  the  month  of  November,  annually,  to  charge  and 
J,  collect  from  each  freight-line  and  equipment  company  doing  business  or  owning  cars 
'  which  are  operated  in  this  state,  a  sum,  in  the  nature  of  an  excise  tax,  to  be  computed 
by  taking  one  per  cent,  of  the  amount  fixed  by  the  state  board  of  appraisers  and  assess- 
ors as  the  value  of  the  proportion  of  the  capital  stock  representing  the  capital  and 
property  of  such  company,  owned  and  used  in  Ohio,  and  certified  to  the  auditor  of 
state,  after  deducting  the  value  of  the  real  estate  of  the  company  in  Ohio,  assessed  and 
taxed  locally,  if  any  there  be.  All  taxes  collected  by  the  auditor  of  state,  under  the 
provisions  of  this  act,  shall  be  paid  into  the  state  treasury  and  be  credited  to  the 
general  revenue  fund.  If  any  freight-line  or  equipment  company  fails  or  refuses  to 
pay  said  tax  during  the  month  of  November,  the  auditor  of  state  shall  add  to  the  tax 
due  a  penalty  of  fifty  per  centum  thereon,  and  shall  forthwith  proceed  to  collect  the 
tax  and  penalty  by  any  means  provided  by  law  for  the  collection  of  taxes  by  county 
treasurers,  and  for  his  services  shall  be  allowed  fifty  per  centum  on  the  amount  of 


74  Private  Corporations  in  Ohio. 


Taxation  of   Corporations  —  Sleeping  Car,   §§    2780-12-2780-13. 


penalty  collected,  which  he  is  authorized  to  retain  out  of  such  amount.  It  shall  be  the 
duty  of  the  attorney-general  or  any  prosecuting  attorney,  on  request  of  auditor 
of  state,  to  prosecute  any  proceeding  for  the  collection  of  such  tax,  which  officer  shall 
be  allowed  for  his  services  five  per  centum  on  the  total  amount  collected,  to  be 
retained  and  paid  to  him  by  the  auditor  of  state.  The  balance  of  the  amount  col-  . 
lected  shall  be  paid  into  the  state  treasury.  Suit  for  the  collection  of  such  tax  and 
penalty  may  be  brought  in  the  name  of  the  state,  in  the  county  of  Franklin,  or  in  any 
county  into  or  through  which  passes  any  railroad  line  over  which  the  cars  of  such 
freight-line  or  equipment  company  are  running;  and  service  of  summons  against  a 
freight-line  or  equipment  company  may  be  made  upon  any  officer  or  agent  of  such 
company  named  in  section  5044  of  the  Revised  Statutes;  or  if  such  officer  or  agent  can- 
not be  found,  then  upon  any  conductor  or  officer,  agent  or  employe  of  such  company,  in 
charge  of  any  car  owned  and  used  by  such  company  in  any  county  in  this  state  in 
which  any  railroad  line  over  whicb  the  cars  of  such  freight-line  or  equipment  com- 
pany are  running  is  located,  or  through  which  it  passes.     (March  30,  1896,  92  v.  89.) 

§  2780-12.  Sec.  1.  SLEEPING-CAR  COMPANY  DEFINED.—  Any  person  or 
persons,  joint  stock  association  or  corporation,  wherever  organized  or  incorporated, 
engaged  in  the  business  of  operating  cars,  not  otherwise  listed  for  taxation  in  Ohio, 
for  the  transportation,  accommodation,  comfort,  convenience  or  safety  of  passengers, 
on  or  over  any  railway  line  or  lines,  in  whole  or  part  within  this  state,  such  line  or 
lines  not  being  owned,  leased  or  operated  by  such  company,  whether  such  cars  be 
termed  sleeping,  palace,  parlor,  chair,  dining  or  buffet-cars,  or  by  some  other  name, 
shall  be  deemed  to  be  a  sleeping  ear  company.     (May  21,  1894,  91  v.  408.) 

§  2780-13.  Sec.  2.  ANNUAL  STATEMENT.—  Every  sleeping  car  company 
defined  in  section  one  (1)  (§  2780-12)  hereof,  doing  business  or  owning  cars  which  are 
operated  in  this  state  shall,  annually,  between  the  first  and  thirty-first  days  of  May, 
under  the  oath  of  the  person  constituting  such  company,  if  a  person,  or  under  the  oath 
of  the  president,  secretary,  treasurer,  superintendent  or  chief  officer  in  this  state  of 
such  association  or  corporation,  if  an  association  or  corporation,  make  and  file  with 
the  auditor  of  state  a  statement,  in  such  form  as  the  auditor  of  state  may  prescribe, 
containing  the  following  facts: 

1.  The  name  of  the  company. 

2.  The  nature  of  the  company,  whether  a  person  or  persons,  or  association  or  cor- 
poration, and  under  the  laws  of  what  state  or  country  organized. 

3.  The  location  of  its  principal  office. 

4.  The  name  and  post  office  address  of  the  president,  secretary,  auditor,  treasurer, 
and  superintendent  or  general  manager. 

5.  The  name  and  post  office  address  of  the  chief  officer  or  managing  agent  of  the 
company  in  Ohio. 

6.  The  number  of  shares  of  the  capital  stock,  and  the  name  and  post  office  address 
of  each  stockholder  with  the  number  of  shares  owned  by  each. 

7.  The  par  value  and  the  market  value,  or,  if  there  be  no  market  value,  the 
actual  value  of  the  shares  of  stock  on  the  first  day  of  May. 

8.  A  detailed  statement  of  the  real  estate  owned  by  the  company  in  Ohio,  where 
situate  and  the  value  thereof  as  assessed  for  taxation. 

9.  The  total  value  of  the  real  estate  owned  by  the  company  and  situate  outside 
of  Ohio. 

10.  The  whole  length  of  the  lines  of  railway  over  which  the  company  runs  its 
cars,  and  the  length  of  so  much  of  said  lines  as  is  without  and  is  -within  the  state  of 
Ohio. 

Blanks  for  making  the  above  statement  shall  be  prepared,  and,  on  application, 
furnished  any  company  by  the  auditor  of  state.  Sleeping-car  companies  shall  not  be 
required  to  make  returns,  and  shall  not  be  governed  by  the  provisions  of  section 
2744  of  the  Revised  Statutes.     (May  21,  1894,  91  v.  408.) 


Miscellaneous  Provisions.  75 

Taxation  of  Corporations  —  Sleeping  Car,    5s    2780-14  2780-15. 


§  2780-14.  Sec.  3.  STATE  BOARD  OF  APPRAISERS  AND  ASSESSORS; 
MEMBERS;  POWERS,  ETC.— The  auditor  of  state,  treasurer  of  state  and  attorney- 
general  shall  constitute  a  board  named  the  state  board  of  appraisers  and  assessors,  of 
which  board  the  auditor  of  state  shall  be  ex  officio  president.  In  the  absence  or 
inability  of  the  auditor,  the  board  shall  appoint  one  of  its  members  president  pro 
tempore.  The  board  shall  appoint  a  secretary,  and  full  minutes  of  its  proceedings 
shall  be  kept.  The  board  shall,  annually,  on  the  first  Monday  in  June,  meet  in  the 
office  of  the  auditor  of  state,  for  the  purpose  of  determining  the  amount  and  value  of 
(the)  proportion  of  the  capital  stock  of  sleeping-car  companies  representing  capital 
and  property  of  such  companies  owned  and  used  in  Ohio.  On  the  meeting  of  the 
board,  the  auditor  of  state  shall  lay  before  it  the  statements  and  schedules  returned 
to  him  under  section  two  (2)  (S  2780-13)  hereof.  The  board  shall  proceed  to  ascer- 
tain and  determine,  on  or  before  the  second  Monday  in  July,  the  amount  and  value  of 
the  proportion  of  the  capital  stock  of  sleeping-car  companies,  representing  capital  and 
property  of  such  companies,  owned  or  used  in  Ohio,  and  in  determining  the  same,  shall 
be  guided  in  each  case  by  the  proportion  of  the  capital  stock  of  the  company  repre- 
senting rolling-stock,  which  the  miles  of  railroad  over  which  such  company  runs  cars 
in  Ohio  bear  to  the  entire  number  of  miles  in  Ohio  and  elsewhere  over  which  such 
company  runs  cars,  and  such  other  rules  and  evidence  as  will  enable  the  board  to 
determine,  fairly  and  equitably,  the  amount  and  value  of  the  capital  stock  of  such 
company  representing  capital  and  property  owned  and  used  in  the  state  of  Ohio. 
The  board  may  adjourn  from  time  to  time  until  the  business  before  it  is  finally  dis- 
posed of.  In  case  any  company  fails  or  refuses  to  make  the  statement  required  by 
law,  or  furnish  the  board  with  any  information  requested,  the  board  shall  inform 
itself  as  best  it  may  on  the  matters  necessary  to  be  known  in  order  to  discharge  its 
duty  under  this  act.  At  any  time  after  the  meeting  of  the  board  on  the  first  Monday 
in  June,  and  before  the  amount  and  value  of  the  capital  stock  of  any  company  repre- 
senting capital  and  property  owned  or  used  in  Ohio,  is  determined,  any  company  or 
person  interested  shall  have  the  right,  on  written  application,  to  appear  before  the 
board  and  be  heard  in  the  matter  of  such  determination.  After  the  fixing  of  the 
amount  and  value  of  the  capital  stock  of  any  company  representing  capital  and  prop- 
erty owned  or  used  in  Ohio,  and  before  the  certification  to  the  auditor  of  state  of  such 
amount,  as  provided  in  section  five  (5)  (§  2780-16)  hereof,  the  board  may,  on  the 
application  of  any  person  or  company  interested,  or  on  its  own  motion,  review  and 
correct  its  action  in  such  manner  as  it  may  deem  just  and  proper.  (May  21,  1894, 
91  v.  408.) 

§  2780-15.  Sec.  4.  PENALTY.— In  case  any  company  required  to  file  a  state- 
ment under  the  provisions  of  section  two  (2)  (S  2780-13)  hereof,  fails  to  make  and 
file  such  statement  on  or  before  the  thirty-first  day  of  May,  such  company  shall  be 
subject  to  a  penalty  of  five  hundred  dollars  and  an  additional  penalty  of  one  hundred 
dollars  for  each  day's  omission  after  the  thirty-first  day  of  May  to  file  such  statement, 
said  penalty  to  be  recovered  by  action  in  the  name  of  the  state,  and  on  collection  paid 
into  the  state  treasury  to  the  credit  of  the  general  revenue  fund.  The  attorney-gen- 
eral, on  the  request  of  the  auditor  of  state,  shall  institute  such  action  against  any  com- 
pany so  delinquent,  in  the  court  of  common  pleas  of  Franklin  county,  or  of  any 
county  into  or  through  which  any  railroad  line  passes,  over  which  such  sleeping-car 
company  is  running  its  cars.  Service  of  summons  may  be  made  in  the  manner  pro- 
vided in  section  five  (5)  (§  2780-16)  of  this  act  in  suits  for  the  collection  of  the  tax 
against  such  company.  The  state  board  of  appraisers  and  assessors  shall  have  power 
to  require  the  president,  secretary,  treasurer,  receiver,  superintendent  or  managing 
agent,  or  other  officer,  or  employe  or  agent  of  any  sleeping-car  company,  to  attend 
before  the  board  and  bring  with  him,  for  the  inspection  of  the  board,  any  books  or 
papers  of  such  company  in  his  possession,  custody  or  control,  and  to  testify  under 
oath  touching  any  matter  relating  to  the  organization,  property  and  business  of  such 


76  Private  Corporations  in  Ohio. 

Taxation   of   Corporations  —  Sleeping  Car,   §§   2780-16-2780-17. 

company.  Any  member  of  the  board  is  authorized  and  empowered  to  administer 
such  oath.  Any  officer,  employe  or  agent  of  such  company  who  shall  refuse  to  attend 
before  the  board  when  required  to  do  so,  or  shall  refuse  to  bring  with  him  and  submit, 
for  the  inspection  of  the  board  any  books  or  papers  of  such  company  in  his  possession, 
custody  or  control,  or  shall  refuse  to  answer  any  question  put  to  him  by  the  board  or 
any  member  thereof,  touching  the  organization,  business  or  property  of  such  com- 
pany, shall  be  guilty  of  a  misdemeanor,  and  on  conviction  thereof  before  any  court 
of  competent  jurisdiction  shall  be  fined  not  more  than  five  hundred  dollars  or  impris- 
oned not  more  than  thirty  days  or  both;  and  any  officer,  employe,  or  agent  of  such 
company  so  refusing,  as  aforesaid,  shall  be  deemed  guilty  of  contempt  of  such  board 
and  may  be  confined,  by  order  of  such  board,  in  the  jail  of  the  proper  county,  until 
he  shall  comply  with  the  requirements  of  the  board  and  pay  the  costs  of  his  imprison- 
ment.    (May  21,  1894,  91  v.  408.) 

§  2780-16.  Sec.  5.  REPORT;  TILING  OF  STATEMENTS,  ETC.;  DISPOSI- 
TION OF  TAX;  SUIT  TO  COLLECT. —  The  state  board  of  appraisers  and  assessors 
shall,  on  the  first  Monday  in  August,  report  to  the  auditor  of  state  the  amounts  fixed 
by  it  as  the  value  of  the  capital  stock  representing  capital  and  property  of  sleeping-car 
companies  employed  and  used  in  Ohio;  at  the  same  time,  the  board  shall  file  with  the 
auditor  of  state  the  statements  of  the  various  companies  and  other  papers  before  it. 
It  shall  be  the  duty  of  the  auditor  of  state,  in  the  month  of  November,  annually,  to 
charge  and  collect  from  each  sleeping-car  company  doing  business  or  owning  cars 
which  are  operated  in  this  state,  a  sum,  in  the  nature  of  an  excise  tax,  to  be  com- 
puted by  taking  one  per  cent,  of  the  amount  fixed  by  the  state  board  of  appraisers  and 
assessors  as  the  value  of  the  proportion  of  the  capital  stock  representing  the  capital 
and  property  of  such  company,  owned  or  used  in  Ohio,  and  certified  to  the  auditor  of 
state,  after  deducting  the  value  of  the  real  estate  of  the  company  in  Ohio,  assessed 
and  taxed  locally,  if  any  there  be.  All  taxes  collected  by  the  auditor  of  state,  under 
the  provisions  of  this  act,  shall  be  paid  into  the  state  treasury  and  be  credited  to  the 
general  revenue  fund.  If  any  sleeping-car  company  fails  or  refuses  to  pay  said  tax 
during  the  month  of  November,  the  auditor  of  state  shall  add  to  the  tax  due  a  penalty 
of  fifty  per  centum  thereon,  and  shall  forthwith  proceed  to  collect  the  tax  and  penalty 
by  any  means  provided  by  law  for  the  collection  of  taxes  by  county  treasurers,  and 
for  his  services  shall  be  allowed  five  per  centum  on  the  amount  of  penalty  collected, 
which  he  is  authorized  to  retain  out  of  such  amount.  It  shall  be  the  duty  of  the 
attorney-general  or  any  prosecuting  attorney,  on  request  of  the  auditor  of  state,  to 
prosecute  any  proceeding  for  the  collection  of  such  tax,  which  officer  shall  be  allowed 
for  his  services,  five  per  centum  on  the  total  amount  collected,  to  be  retained  and  paid 
to  him  by  the  auditor  of  state.  The  balance  of  the  amount  collected  shall  be  paid 
into  the  state  treasury.  Suit  for  the  collection  of  such  tax  and  penalty  may  be 
brought  in  the  name  of  the  state,  in  the  county  of  Franklin,  or  in  any  county  into  or 
through  which  passes  any  railroad  line  over  which  such  sleeping-car  company  is  run- 
ning its  cars;  and  service  of  summons  against  a  sleeping-car  company  may  be  made 
upon  any  officer  or  agent  of  such  company  named  in  section  5044  of  the  Revised 
Statutes,  or,  if  such  officer  or  agent  cannot  be  found,  then  upon  any  conductor,  or 
officer,  agent  or  employe  of  such  company,  in  charge  of  any  car  owned  and  used 
by  such  sleeping-car  company  in  any  county  in  this  state  in  which  any  railroad  line 
over  which  such  sleeping-car  company  is  running  its  cars  is  located,  or  through 
which  it  passes.     (May  21,  1894,  91  v.  408.) 

§  2780-17.  ELECTRIC  LIGHT,  GAS,  NATURAL  GAS,  PIPE-LINE,  WATER- 
WORKS, STREET,  SUBURBAN  OR  INTERURBAN  RAILROAD,  EXPRESS, 
TELEGRAPH,  TELEPHONE,  MESSENGER  OR  SIGNAL,  UNION  DEPOT,  AND 
RAILROAD  COMPANIES  DEFINED.—  That  any  person  or  persons,  joint  stock  asso- 
ciation or  corporation,   wherever   organized   or   incorporated,   when  engaged   in  the 


Miscellaneous  Provisions.  77 


Taxation  of  Corporations  —  Sleeping  Car,   §  2780-18. 


business  of  supplying  electricity  for  light,  heat  or  power  purposes  to  consumers  within 
this  state,  shall  be  deemed  to  be  an  electric  light  company;  when  engaged  in  the 
business  of  supplying  artificial  gas  for  lighting  or  heating  purposes  to  consumers 
within  this  state,  shall  be  deemed  to  be  a  gas  company;  when  engaged  in  the  business 
of  supplying  natural  gas  for  lighting,  heating  or  power  purposes  to  consumers  within 
this  state,  shall  be  deemed  to  be  a  natural  gas  company;  when  engaged  in  the  busi- 
ness of  transporting  natural  gas  or  oil  through  pipes  or  tubing,  either  wholly  or 
partially,  within  this  state,  shall  be  deemed  to  be  a  pipe-line  company;  when  engaged 
in  the  business  of  supplying  water,  through  pipes  or  tubing,  or  in  a  similar  manner, 
to  consumers  within  this  state,  shall  be  deemed  to  be  a  waterworks  company;  when 
engaged  in  the  business  of  operating  a  street,  suburban  or  interurban  railroad,  either 
wholly  or  partially  within  this  state,  whether  the  cars  used  in  such  business  be  pro- 
pelled by  animals,  steam,  cable,  electricity,  or  other  motor  shall  be  deemed  to  be  a 
street,  suburban  or  interurban  railroad  company;  when  engaged  in  the  business  of 
conveying  to,  from  or  through  this  state,  or  any  part  thereof,  money,  packages,  gold, 
silver,  plate  or  other  article,  by  express,  not  including  the  ordinary  lines  of  transpor- 
tation of  merchandise  and  property  in  this  state,  shall  be  deemed  to  be  an  express 
company;  when  engaged  in  the  business  of  transmitting  to,  from,  through,  or  in  this 
state,  telegraphic  messages,  shall  be  deemed  to  be  a  telegraph  company;  when  engaged 
in  the  business  of  transmitting  to,  from,  through,  or  in  this  state,  telephonic  messages, 
shall  be  deemed  to  be  a  telephone  company;  when  engaged  in  the  business  of  supply- 
ing messengers  or  of  signaling  or  calling  by  electrical  apparatus,  or  in  similar  manner, 
for  any  purpose,  shall  be  deemed  to  be  a  messenger  or  signal  company;  when  engaged 
in  the  business  of  operating  a  union  depot  or  station  for  railroad  purposes,  shall  be 
deemed  to  be  a  union  depot  company;  when  engaged  in  the  business  of  operating  a 
railroad,  either  wholly  or  partially  within  this  state,  whether  on  rights  of  way 
acquired  and  held  exclusively  by  such  company  or  otherwise,  shall  be  deemed  to  be 
a  railroad  company.     (April  15,  1902,  95  v.   136;  March  19,  1896,  92  v.   79.) 

§  2780-18.  ANNUAL  STATEMENTS  OF  SAME.— Every  electric  light,  gas, 
natural  gas,  pipe-line,  waterworks,  street,  suburban  or  interurban  railroad,  express, 
telegraph,  telephone,  messenger  or  signal,  and  union  depot  company  defined  in  section 
(1)  one  (§  2780-17)  hereof,  doing  business  in  this  state  shall,  annually,  between  the 
first  and  thirty-first  days  of  May,  and  every  such  railroad  company  shall,  annually, 
on  or  before  the  first  day  of  September,  under  the  oath  of  the  person  constituting  such 
company,  if  a  person,  or  under  the  oath  of  the  president,  secretary,  treasurer,  superin- 
tendent or  chief  officer  in  this  state,  of  such  association  or  corporation,  if  an  associ- 
ation or  corporation,  make  and  file  with  the  auditor  of  state  a  statement,  in  such  form 
as  the  auditor  of  state  may  prescribe,  containing  the  following  facts: 

First.     The  name  of  the  company. 

Second.  The  nature  of  the  company,  whether  a  person  or  persons,  or  association 
or  corporation,  and  under  the  laws  of  what  state  or  country  organized. 

Third.     The  location  of  its  principal  office. 

Fourth.  The  name  and  post-office  address  of  the  president,  secretary,  auditor, 
treasurer  and  superintendent  or  general  manager. 

Fifth.  The  name  and  post-office  address  of  the  chief  officer  or  managing  agent  of 
the  company  in  Ohio. 

Sixth.  In  the  case  of  express  companies  the  entire  receipts  (including  all  sums 
earned  or  charged,  whether  actually  received  or  not)  for  business  done  within  this 
state  of  each  agent  of  such  company  doing  business  in  this  state  (giving  the  name  of 
the  office)  for  the  year  then  next  preceding  the  first  day  of  May,  for  and  on  account 
of  such  company,  including  its  proportion  of  gross  receipts  for  business  done  by  such 
company  within  this  state  in  connection  with  other  companies;  also,  the  total  amount 
of  such  receipts  for  business  done  within  this  state. 

Seventh.  In  the  case  of  telegraph  and  telephone  companies,  the  entire  gross 
receipts  (including  all  sums  earned  or  charged,  whether  actually  received  or  not) 
for  the  year  then  next  preceding  the  first  day  of  May,  from  whatever  source  derived, 


78  Private  Corporations  in  Ohio. 

Taxation  of  Corporations — Sleeping  Car,  §  2780-19. 


whether  message,  telephone  tolls,  rentals,  or  otherwise,  for  business  done  within  this 
state  of  each  office  within  this  state  (giving  the  name  of  the  office)  and  the  total 
gross  receipts  of  the  company  for  such  period  in  Ohio  from  business  done  within  Ohio. 

Eighth.  In  the  case  of  each  railroad  situated  wholly  within  Ohio,  the  gross  earn- 
ings from  its  operation,  and  in  the  case  of  each  railroad  located  partly  within  and 
partly  without  Ohio,  the  gross  earnings  from  the  operation  of  the  entire  line,  for  the 
year  ending  the  thirtieth  day  of  June  next  preceding,  with  the  miles  of  line  within 
Ohio,  and  the  miles  of  line  without  Ohio. 

Ninth.  In  the  case  of  each  street,  suburban  or  interurban  railroad  situated 
wholly  within  Ohio,  the  gross  earnings  from  its  operation  and  in  the  case  of  each 
street,  suburban  or  interurban  railroad  located  partly  within  and  partly  without 
Ohio,  the  gross  earnings  from  the  operation  of  the  entire  line,  for  the  year  ending 
the  first  day  of  May  next  preceding,  with  the  miles  of  line  within  Ohio,  and 
the  miles  of  line  without  Ohio. 

Tenth.  In  the  case  of  companies,  other  than  express,  street,  suburban  and  inter- 
urban railroads,  and  railroads,  the  entire  gross  receipts  of  the  company  (including 
all  sums  earned  or  charged,  whether  actually  received  or  not)  for  business  done  within 
this  state  for  the  year  then  next  preceding  the  first  day  of  May,  including  the  com- 
pany's proportion  of  gross  receipts  for  business  done  by  it  within  this  state  in  con- 
nection with  other  companies. 

Eleventh.  Such  other  facts  and  information  as  the  auditor  of  state  may  require 
in  the  form  of  return  prescribed  by  him. 

Blanks  for  making  the  above  statement  shall  be  prepared,  and,  on  application, 
furnished  any  electric  light,  gas,  natural  gas,  pipe-line,  waterworks,  street,  suburban 
or  interurban  railroad,  express,  telegraph,  telephone,  messenger  or  signal,  union  depot 
and  railroad  company,  by  the  auditor  of  state.  (April  15,  1902,  95  v.  137;  March 
19,   1896,  92  v.  79.) 

§  2780-19.  STATE  BOARD  OF  APPRAISERS  AND  ASSESSORS;  MEMBERS; 
OFFICERS;  MINUTES;  MEETING;  RIGHT  TO  APPEAR,  ETC.—  The  auditor  of  state, 
treasurer  of  state,  attorney-general  and  secretary  of  state  shall  constitute  a  board, 
named  the  state  board  of  appraisers  and  assessors,  of  which  board  the  auditor  of  state 
shall  be  ex  officio  president.  In  the  absence  or  inability  of  the  auditor,  the  board 
shall  appoint  one  of  its  members  president  pro  tempore.  The  board  shall  appoint  a 
secretary  and  full  minutes  of  its  proceedings  shall  be  kept.  The  board  shall,  annu- 
ally, on  the  first  Monday  in  June,  meet  in  the  office  of  the  auditor  of  state,  and  there- 
upon, or  when  received,  the  auditor  of  state  shall  lay  before  the  board  the  statements 
and  schedules  returned  to  him  under  section  2780-18  of  the  Revised  Statutes  of  Ohio. 
Tha  reports  made  by  railroad  and  telegraph  companies  to  the  commissioner  of  rail- 
roads and  telegrapns  may  be  regarded  and  treated  by  the  board  as  reports  made  to 
it,  and  the  board  shall  have  power  at  any  time  to  call  upon  such  commissioner  for 
information.  The  board  may  also  consider  the  reports  filed  with  the  auditor  of  state 
by  express,  telegraph  and  telephone  companies  under  the  provisions  of  section  twenty- 
seven  hundred  and  seventy-eight,  Revised  Statutes,  of  Ohio.  The  board  shall  proceed 
to  ascertain  and  determine,  on  or  before  the  second  Monday  in  July,  the  entire 
gross  receipts  of  electric  light,  gas,  natural  gas,  pipe-line,  waterworks,  express,  tele- 
graph, telephone,  messenger  or  signal,  and  union  depot  companies  for  business  done 
within  Ohio,  for  the  year  then  next  preceding  the  first  day  of  May,  and  the  amounts 
ascertained  by  said  board  shall,  in  such  instance,  be  held  and  deemed  to  be  "  the  gross 
receipts  of  such  electric  light,  gas,  natural  gas,  pipe-line,  waterworks,  express,  tele- 
graph, telephone,  messenger  or  signal,  and  union  depot  company,  for  business  done 
within  Ohio  "  for  the  year  under  consideration.  The  board  shall  further  proceed 
to  ascertain  and  determine,  on  or  before  the  first  Monday  in  October,  the  gross  earn- 
ings from  its  operation  within  Ohio  of  each  railroad  company  whose  line  is  wholly 
or  partially  within  this  state,  for  the  year  then  next  preceding  the  thirtieth  day  of 


Miscellaneous  Provisions.  79 


Taxation  of  Corporations  —  Sleeping  Car,  §  2780-20. 


June,  and  the  amount  ascertained  by  said  board  shall  be  held  and  deemed  to  be  "  the 
gross  earnings  of  such  railroad  company  from  its  operation  within  Ohio  "  for  the 
year  under  consideration.  In  ascertaining  the  gross  earnings  from  its  operation 
within  Ohio  of  a  railroad  company  whose  line  lies  partly  within  and  partly  without 
this  state,  the  gross  earnings  from  its  operation  of  the  entire  line  or  system,  shall 
be  divided  by  the  total  number  of  miles  operated  to  obtain  the  average  gross  earnings 
per  mile,  and  the  gross  earnings  from  the  operation  within  this  state  shall  be  taken 
to  be  the  average  gross  earnings  per  mile  multiplied  by  the  number  of  miles  operated 
within  this  state.  The  board  shall  further  proceed  to  ascertain  and  determine,  on  or 
before  the  second  Monday  in  July,  the  gross  earnings  from  its  operation  within  Ohio 
of  each  street,  suburban  or  interurban  railroad  company  whose  line  is  wholly  or 
partially  within  this  state,  for  the  year  then  next  preceding  the  first  day  of  May,  and 
the  amount  so  ascertained  by  said  board  shall  be  held  and  deemed  to  be  "  the  gross 
earnings  of  such  street,  suburban  or  interurban  railroad  company  from  its  operation 
within  Ohio  "  for  the  year  under  consideration.  In  ascertaining  the  gross  earnings 
from  its  operation  within  Ohio  of  a  street,  suburban  or  interurban  railroad  company 
whose  line  lies  partly  within  and  partly  without  this  state,  the  gross  earnings  from 
its  operation  of  the  entire  line  or  system,  shall  be  divided  by  the  total  number  of  miles 
operated  to  obtain  the  average  gross  earnings  per  mile,  and  the  gross  earnings  from 
the  operation  within  this  state  shall  be  taken  to  be  the  average  gross  earnings  per 
mile,  multiplied  by  the  number  of  miles  operated  within  this  state.  The  board  may 
adjourn  from  time  to  time,  until  the  business  before  it  is  finally  disposed  of.  In  case 
of  failure  or  refusal  of  any  company  to  make  the  statement  required  by  law,  or 
furnish  the  board  any  information  requested  by  it,  the  board  shall  inform  itself,  as 
best  it  may,  on  the  matters  necessary  to  be  known,  in  order  to  discharge  its  duties 
under  this  act.  And  at  any  time,  after  the  meeting  of  the  board  on  the  first  Monday 
in  June,  and  before  the  gross  receipts  of  any  company  other  than  street,  suburban 
or  interurban  railroad  or  railroad,  for  business  done  within  Ohio,  or  the  gross  earn- 
ings from  its  operation  within  Ohio,  of  any  street,  suburban  or  interurban  railroad  or 
railroad  company  are  determined,  any  company  or  person  interested  shall  have  the 
right,  on  written  application,  to  appear  before  the  board  and  be  heard  in  the  matter 
of  such  determination.  After  the  determination  of  the  amount  of  the  gross  receipts 
of  any  company,  other  than  railroad,  for  business  done  within  Ohio,  or  of  the  gross 
earnings  from  its  operation  within  Ohio,  of  any  railroad  company,  and  before  the  certi- 
fication to  the  auditor  of  state  of  such  amount,  as  provided  in  section  five  (5)  (S  2780- 
21)  hereof,  the  board  may,  on  the  application  of  any  person  or  company  interested  or 
on  its  own  motion,  review  and  correct  its  finding  in  such  manner  as  may  seem  to  it 
to  be  just  and  proper.     (April  15,  1902,  95  v.  138;  March  19,  1896,  92  v.  79.) 

§  2780-20.  PENALTY;  RECOVERY  AND  DISPOSITION"  OF  SAME.— In  case 
any  company  required  to  file  a  statement  under  the  provisions  of  section  2780-18 
of  the  Revised  Statutes  of  Ohio  fails  to  make  and  file  such  statement  on  or  before 
the  thirty-first  day  of  May,  such  company  shall  be  subject  to  a  penalty  of  five  hun- 
dred dollars,  and  an  additional  penalty  of  one  hundred  dollars  for  each  day's  omission 
after  the  thirty-first  day  of  May  to  file  such  statement,  said  penalty  to  be  recovered 
by  action  in  the  name  of  the  state,  and,  on  collection,  paid  into  the  state  treasury  to 
the  credit  of  the  general  revenue  fund.  The  attorney-general,  on  the  request  of  the 
auditor  of  state,  shall  institute  such  action  against  any  company  so  delinquent  in  the 
court  of  common  pleas  of  Franklin  county,  or  in  any  county  in  which  such  company 
does  business  and  shall  be  allowed  for  his  services  five  per  centum  on  the  amount 
collected,  to  be  retained  by  him  and  the  balance  paid  into  the  state  treasury.  The 
state  board  of  appraisers  and  assessors  shall  have  power  to  require  the  president, 
secretary,  treasurer,  receiver,  superintendent  or  managing  agent,  or  other  officer,  or 
employe  or  agent,  of  any  electric  light,  gas,  natural  gas,  pipe-line,  waterworks,  street, 
suburban  or  interurban  railroad,  express,  telegraph,  telephone,  messenger  or  signal, 
union  depot  and  railroad  company  to  attend  before  the  board,  and  bring  with  him 


80  Private  Corporations  in  Ohio. 

Taxation  of  Corporations  —  Sleeping  Car,  §  2780-21. 

for  the  inspection  of  the  board,  any  books  or  papers  of  such  company  in  his  possession  '' 
or  control,  and  to  testify  under  oath  touching  any  matter  relating  to  the  organization* 
or  business  of  such  company.  Any  member  of  the  board  is  authorized  and  empowered 
to  administer  such  oath.  Any  officer,  employe,  or  agent  of  such  company,  who  shall 
refuse  to  attend  before  the  board  when  requested  to  do  so,  or  shall  refuse  to  bring  with 
him  and  submit  for  the  inspection  of  the  board  any  books  or  papers  of  such  company 
in  his  possession,  custody  or  control,  or  shall  refuse  to  answer  any  question  put  to 
him  by  the  board  or  any  member  thereof,  touching  the  organization  or  business  of 
such  company,  shall  be  deemed  guilty  of  a  misdemeanor,  and  on  conviction  shall  be 
fined  not  more  than  five  hundred  dollars  or  imprisoned  not  more  than  thirty  days, 
or  both,  and  any  officer,  employe  or  agent  of  such  company  so  refusing,  as  aforesaid, 
shall  be  guilty  of  contempt  of  such  board,  and  may  be  confined,  by  order  of  such 
board,  in  the  jail  of  the  proper  county  until  he  shall  have  complied  with  the  require- 
ment of  the  board  and  paid  the  cost  of  his  imprisonment.  (April  15,  1902,  95  v.  140; 
March   19,  1896,  92  v.  79.) 

§  2780-21.  ANNUAL  REPORTS;  ASSESSMENTS  AND  COLLECTION;  PEN- 
ALTY.—  The  board  of  assessors  and  appraisers  shall,  on  the  first  Monday  in  August, 
report  to  the  auditor  of  state  the  amount  of  the  gross  receipts  of  electric  light,  gas, 
natural  gas,  pipe-line,  waterworks,  express,  telegraph,  telephone,  messenger  or  signal 
and  union  depot  companies  for  business  done  within  the  state  of  Ohio  and  the  amount 
of  the  gross  earnings  from  its  operation  within  Ohio  of  each  street,  suburban  or 
interurban  railroad  company,  for  the  year  then  next  preceding  the  first  day  of  May, 
and  on  the  first  Monday  in  October,  the  board  shall  report  to  the  auditor  of  state  the 
amount  of  the  gross  earnings  from  its  operation  within  Ohio  of  each  railroad  company 
for  the  year  then  next  preceding  the  thirtieth  day  of  June.  At  the  same  time  the 
board  shall  file  with  the  auditor  of  state  the  statements  of  the  various  companies 
and  other  papers  before  it.  It  shall  be  the  duty  of  the  auditor  of  state,  in  the  month 
of  November,  annually,  to  charge  and  collect  from  each  electric  light,  gas,  natural  gas, 
pipe-line,  waterworks,  express,  telegraph,  telephone,  messenger  or  signal  and  union 
depot  company  doing  business  in  this  state,  a  sum,  in  the  nature  of  an  excise  tax,  to  be 
computed  by  taking  one  per  centum  of  the  amount  fixed  by  the  state  board  of 
appraisers  and  assessors  as  the  gross  receipts  of  such  company  for  business  done 
within  the  state  of  Ohio  for  the  year  then  next  preceding  the  first  day  of  May,  and 
certified  to  the  auditor  of  state;  and  from  each  street,  suburban  or  interurban  rail- 
road company  doing  business  in  this  state,  a  sum  in  the  nature  of  an  excise  tax, 
to  be  computed  by  taking  one  per  cent,  of  the  amount  fixed  by  the  state  board  of 
appraisers  and  assessors  as  the  gross  earnings  from  its  operation  within  Ohio  of  such 
company  for  the  year  then  next  preceding  the  first  day  of  May  and  certified  to  the 
auditor  of  state;  and  from  each  railroad  company  doing  business  in  this  state  a  sum 
in  the  nature  of  an  excise  tax,  to  be  computed  by  taking  one  per  cent,  of  the  amount 
fixed  by  the  state  board  of  appraisers  and  assessors  as  the  gross  earnings  from  its 
operation  within  Ohio  of  such  company  for  the  year  then  next  preceding  the  thirtieth 
day  of  June,  and  certified  to  the  auditor  of  state.  Provided,  nothing  contained  in 
this  act  shall  exempt  or  relieve  electric  light,  gas,  natural  gas,  pipe-line,  waterworks, 
street,  suburban  or  interurban  railroad,  express,  telegraph,  telephone,  messenger  or, 
signal,  union  depot  and  railroad  companies  from  the  assessment  and  taxation  of  their  (' 
tangible  property  in  the  manner  authorized  and  provided  by  law.  All  taxes  collected 
by  the  auditor  of  state  under  the  provisions  of  this  act,  shall  be  paid  into  the  state ' 
treasury,  and  be  credited  to  the  general  revenue  fund.  If  any  electric  light,  gas,  natural 
gas,  pipe-line,  waterworks,  street,  suburban  or  interurban  railroad,  express,  telegraph, 
telephone,  messenger  or  signal,  union  depot  and  railroad  company  fails  or  refuses 
to  pay  said  tax  during  the  month  of  November,  the  auditor  of  state  shall  add  to  the 
tax  due  a  penalty  of  fifty  per  cent,  thereon,  and  shall  forthwith  proceed  to  collect  tax 
and  penalty  with  interest  at  the  rate  of  six  per  cent,  per  annum  by  any  means  provided 


Miscellaneous  Provisions. 


81 


Taxation  of  Corporations  —  Banks,   SS  2808,   2809. 


by  law  for  the  collection  of  taxes  by  county  treasurers,  and  for  his  services  shall  be 
allowed  five  per  cent,  on  the  total  amount  collected,  which  he  is  authorized  to  retain. 
It  shall  be  the  duty  of  the  attorney-general,  or  any  prosecuting  attorney,  on  request 
of  the  auditor  of  state,  to  prosecute  any  proceedings  for  the  collection  of  such  tax, 
which  officer  shall  be  allowed  for  his  services  five  per  cent,  on  the  total  amount  col- 
lected, to  be  retained  and  paid  to  him  by  the  auditor  of  state.  The  balance  of  the 
amount  collected  shall  be  paid  into  the  state  treasury.  Suits  for  collection  of  such  tax 
may  be  brought  in  the  name  of  the  state  in  Franklin  county,  or  in  any  county  in 
which  such  electric  light,  gas,  natural  gas,  pipe-line,  waterworks,  street,  suburban 
or  interurban  railroad,  express,  telegraph,  telephone,  messenger  or  signal,  union 
depot  and  railroad  company  is  doing  business  or  the  line  of  such  street,  suburban 
or  interurban  railroad  company  or  railroad  company  is  located.  In  case  the  tax 
herein  authorized  to  be  charged  and  collected  against  any  class  of  companies  defined 
in  the  first  section  (§  2780-17)  of  this  act,  engaged  in  any  class  of  business  men- 
tioned therein,  shall,  for  any  reason,  be  declared  invalid,  such  invalidity  shall  in 
no  wise  affect  the  validity  of  the  law  as  applicable  to  any  other  class  or  classes  of 
companies  defined  in  said  section  nor  shall  the  abrogation  or  repeal  of  any  section  or 
clause  of  this  act  be  held  to  abrogate  or  repeal  any  other  section  or  clause  thereof. 
(April  15,  1902,  95  v.  141;  March  19,  1896,  92  v.  79.) 

§  2780-22.  EXEMPTION  OF  MUNICIPALITIES.— This  act  shall  not  be  con- 
strued so  as  to  require  any  municipal  corporation  within  the  state  to  make  any 
return  or  pay  any  taxes  under  any  provision  of  this  act.  (April  15,  1902,  95  v.  143; 
March  19,   1896,  92  v.   79.) 

§  2780-23.  REPORTS  WHERE  FILED.— During  the  month  of  October  of  each 
year,  the  auditor  of  state  shall  file  with  the  secretary  of  state  a  written  statement 
containing  the  name  of  each  company  which  has  complied  with  the  provisions  of 
this  act  dux-ing  the  year  next  preceding,  and  such  facts  respecting  it  within  his  knowl- 
edge, which  are  required  by  law  to  be  annually  filed  with  the  secretary  of  state  by 
corporations  other  than  those  included  within  the  provisions  of  this  act.  (April  15, 
1902,   95  v.    143.) 


§  2808.  STATE  BOAPD  FOR  BANKS;  HOW  CONSTITUTED.— The  governor, 
auditor  of  state,  and  attorney-general  shall  constitute  a  board  for  the  equalization  of 
the  shares  of  incorporated  banks,  and  also  the  shares  of  unincorporated  banks  whose 
capital  is  divided  into  shares,  each  of  which  shares  is  an  aliquot  part  of  the  capital  so 
divided,  and  for  this  purpose  they  shall  meet  on  the  third  Tuesday  of  June,  annually, 
at  the  office  of  the  auditor  of  state,  and  examine  the  returns  of  said  banks  to  the 
county  auditors  and  the  value  of  said  shares  as  fixed  by  the  county  auditors,  as  the 
same  shall  have  been  reported  by  the  county  auditors  to  the  state  auditor.  (March 
26,  1902,  95  v.  71;  March  9,  1883,  80  v.  54;  April  13,  1880,  77  v.  191;  R.  S.  1880; 
April  12,   1877,  74  v.   88.) 


Constitutionality  and  construction. 

Cummings  v.  National  Bank,  101  U.  S.  153; 
Whitbeck  v.  Mercantile  Bank,  127  U.  S.   193. 


Powers,    notice,    records,    adjournment, 

remedy. 

See  Euclid  Avenue  Bank  v.  Huhbard,  22  0. 
C.  C.  20  (1901). 


§  2809.  POWERS  OF  BOARD.—  Said  board  shall  hear  complaints  and  equalize 
the  value  of  said  shares  according  to  the  rules  prescribed  by  their  title  for  valuing 
and  equalizing  the  values  of  real  and  personal  property,  and  if  in  the  judgment  of  the 
board,  or  a  majority  of  them,  the  aggregate  value  of  all  the  bank  property  so  reported 
to  said  board  by  the  county  auditors  is  below  its  true  value  in  money,  they  may 
increase  or  diminish  the  value  of  said  shares  by  such  a  per  cent,  as  will  equalize  said 
shares  to  their  true  value  in  money;  provided  that  said  board  shall  not  increase  or 

LAW  GOV.   PRIV.   COR. —  6. 


82  Private  Corporations  in  Ohio. 

Taxation  of   Corporations  —  Banks,    §§   2810-2842. 

reduce  the  grand  aggregate  value  of  bank  shares  as  returned  by  the  several  county 
auditors  by  more  than  twenty  (20)  per  centum.  (March  9,  1883,  80  v.  54;  April  13, 
1880,  77  v.  191;  R.  S.  1880;  April  12,  1877,  74  v.  88,  §  5.) 

§  2810.  STATE  AUDITOR  TO  REPORT  TO  COUNTY  AUDITORS.—  The  auditor 
of  state  shall  forthwith  after  such  equalization  shall  have  been  made  certify  to  the 
auditors  of  the  proper  counties  the  valuation,  as  equalized,  of  the  shares  of  banks 
situated  in  such  counties,  which  valuation  shall  be  put  on  the  proper  tax-list.  (March 
9,  1883,  80  v.  54;  April  13,  1880,  77  v.  191;  R.  S.  1880;  April  12,  1877,  74  v.  88,  §  6.) 

§  2811.  HOW  CONSTITUTED,  AND  THEIR  MEETING.— The  auditor  of  state, 
treasurer  of  state,  commissioner  of  railroads  and  telegraphs  and  the  attorney-general, 
shall  also  constitute  a  board  of  equalization  of  the  values  of  the  property  of  railroad 
companies  as  the  same  are  fixed  by  the  county  auditors;  and  for  this  purpose  they 
shall  meet  at  the  office  of  the  auditor  of  state,  on  the  Wednesday  after  the  tenth  day 
of  June,  annually,  and  examine  the  returns  and  documents  sent  to  the  auditor  of  state 
by  the  boards  of  county  auditors  in  this  behalf.  (March  17,  1896,  92  v.  72;  March 
16,   1867,  64  v.   58,  §  1.) 

Board  of  equalization. 

This  board  is  not  board  of  appraisal. —  State  ex  rel.  v.  Annual  Board,  65  Oh.   St   544  (1902). 

§  2812.  THEIR  POWERS. —  The  said  board  shall  hear  complaints  and  equalize 
said  values  by  adding  to  the  valuation  of  the  property  of  such  companies  as  have  been 
undervalued,  and  deducting  from  the  valuation  of  the  property  of  such  as  have  been 
overvalued:  provided,  that  the  board,  in  such  equalization,  shall  not  reduce  the 
aggregate  of  the  value  of  the  property  of  railroad  companies  within  the  state  below 
the  amount  returned  by  the  board  of  county  auditors.     (March  16,  1867,  64  v.  58,  §  1.) 

§  2839.  LIEN  ON  BANK  SHARES;  UNLAWFUL  TO  TRANSFER  STOCK 
UNTIL  DELINQUENT  TAXES  ARE  PAID. —  Any  taxes  assessed  on  any  shares  of 
stock  or  the  value  thereof,  of  any  bank  or  banking  association,  shall  be  and  remain 
a  lien  on  such  shares  from  the  first  Monday  of  May  in  each  year  until  such  taxes  are 
paid;  and  in  case  of  the  non-payment  of  such  taxes  at  the  time  required  by  law  by 
any  shareholder,  and  after  notice  received  of  the  county  treasurer  of  the  non-pay- 
ment of  such  taxes,  it  shall  be  unlawful  for  the  cashier  or  other  officer  of  such  bank 
or  banking  association  to  transfer  or  permit  to  be  transferred  the  whole  or  any  portion 
of  said  stock,  until  the  delinquent  taxes  thereon,  together  with  costs  and  penalties, 
shall  be  paid  in  full;  and  no  dividend  shall  be  paid  on  any  stock  so  delinquent,  so 
long  as  such  taxes,  penalties,  and  costs,  or  any  part  thereof,  remain  due  and  unpaid. 
(April  16,  1867,  64  v.  204,  §  6.) 

§    2840.     BANK  MAY  PAY  TAXES  AND  DEDUCT  AMOUNT  FROM  DIVIDEND. 

—  It  shall  be  lawful  for  any  such  bank  or  banking  association  to  pay  to  the  treasurer 
of  the  county  in  which  such  bank  or  banking  association  may  be  located,  the  taxes 
that  may  be  assessed  upon  its  shares,  as  aforesaid,  in  the  hands  of  its  shareholders, 
respectively,  and  deduct  the  same  from  any  dividends  that  may  be  due  or  may 
thereafter  become  due  on  any  such  shares,  or  deduct  the  same  from  any  funds  in  its 
possession  belonging  to  any  shareholder,  as  aforesaid.  (April  16,  1867,  64  v.  204, 
§  7.) 

§  2842.  AGENT  OF  EXPRESS  OR  TELEGRAPH  COMPANY  TO  PAY  TAXES 
OF  THE  COMPANY;  ONE  MAY  PAY  FOR  ALL  THE  OFFICES  OF  THE  COUNTY. 

—  The  agent  of  every  express  or  telegraph  company  shall  retain  in  his  hands  for  such 
company,  and  pay  to  the  county  treasurer,  the  amount  of  all  taxes  assessed  against 
such  company,  and  in  case  of  the  default  of  payment,  the  treasurer  shall  proceed  to 
collect  the  same  as  in  other  cases  of  delinquent  personal  property  tax:  provided,  that 


Miscellaneous  Provisions.  83 


Railroads  —  Lien,  etc.,  on,  §  3207. 


where  there  is  more  than  one  such  agent  of  the  same  company  in  one  county,  the 
agent  thereof  in  the  principal  city,  town,  or  village  of  such  county,  may  assume  the 
payment  of  such  tax,  and  upon  so  doing,  the  other  agents  in  the  same  county  shall 
not  be  required  to  retain  funds  to  pay  the  same.     (May  1,  1862,  59  v.  91,  $  6.) 

§  2843.  UNLAWFUL  TO  ACT  AS  AGENT  OF  OR  PERFORM  SERVICES  FOR 
CERTAIN  COMPANIES  WHEN  TAXES  DUE  AND  UNPAID  FOR  TWENTY  DAYS; 
PENALTIES. —  If  the  taxes  assessed  against  any  express  company,  telegraph  com- 
pany, telephone  company,  or  insurance  company,  in  any  county  in  this  state,  shall 
remain  due  and  unpaid  to  the  treasurer  of  such  county,  for  the  period  of  twenty  days 
after  the  time  provided  by  law  for  the  payment  thereof,  it  shall  be  unlawful  for  any 
person  or  persons,  or  corporation,  to  act  as  agents,  or  do  or  transact  any  business  for 
such  company  so  in  default  to  such  county,  until  said  tax,  and  interest,  and  penalty 
is  fully  paid;  any  person,  or  agent,  manager  or  clerk  of  any  corporation,  who  shall, 
after  such  default,  directly  or  indirectly  act  as  agent  of,  or  do  or  transact  any  busi- 
ness whatever  on  account  of  or  for  the  benefit  of  such  company  so  in  default,  other 
than  the  payment  of  said  tax,  shall  be  held  to  be  guilty  of  a  misdemeanor,  and  on 
conviction  thereof,  shall  be  fined  in  any  sum  not  less  than  one  hundred  nor  more 
than  five  hundred  dollars,  or  punished  by  imprisonment  in  the  county  jail,  and  fed 
on  bread  and  water  only,  not  exceeding  thirty  days,  or  both,  at  the  discretion  of  the 
court;  after  such  default,  made  as  aforesaid,  any  railroad  company  which  shall, 
directly  or  indirectly,  convey  or  carry  for  said  defaulting  express,  telegraph,  tele- 
phone company  or  insurance  company,  any  package  of  money,  merchandise,  or  other 
articles,  or  transmit  any  telegraphic  message,  after  having  notice  of  such  default, 
shall  for  every  such  offense,  forfeit  and  pay  a  sum  equal  to  the  amount  of  such  tax 
due  and  unpaid,  with  the  interest  and  penalty  thereon,  to  be  recovered  by  an  action  in 
the  name  of  the  state,  in  the  county  where  such  tax  is  assessed,  with  costs  of  suit. 
(March  20,  1885,  82  v.  92;  R.  S.  1880;  May  1,  1862,  59  v.  91,  §  7.) 

§  3207.  WHAT  CONTRACTS  FOR  RAILROAD  WORK  SHALL  STIPULATE; 
CLAIMS;  ORDER  OF  PRIORITY.— Any  person,  association  of  persons,  or  corpora- 
tion contracting  for  the  construction  of  a  railroad,  depot  buildings,  water-tanks,  or 
any  part  thereof,  shall  be  liable  to  and  shall  pay  to  each  person  performing  labor  or 
furnishing  materials  stipulated  for  in  the  contract  with  the  owner  of  the  road,  under 
a  contract  express  or  implied  with  the  original  contractor,  or  with  any  sub-contractor, 
for  the  whole  or  any  part  of  the  work  stipulated  in  the  original  contract  with  the 
owner  of  the  railroad;  and  the  railroad  company  shall  provide,  in  its  contract  with 
any  person,  association  of  persons,  or  corporation  for  the  construction  of  its  road,  or 
any  part  thereof,  that  payments  under  its  said  contract  shall  be  made  in  the  follow- 
ing order  of  priority:  First,  to  the  persons  performing  labor  or  furnishing  materials, 
or  furnishing  boarding  on  the  order  of  any  contractor  or  sub-contractor  to  persons 
employed  by  them,  or  either  of  them,  in  furnishing  materials  or  labor  for  or  in  the 
construction  of  such  railroad,  without  preference.  Second,  to  any  sub-contractor,  any 
balance  due  under  his  contract  after  payment  of  his  or  their  liabilities  to  persons  per- 
forming labor  or  furnishing  materials  or  boarding,  under  his  or  their  contract.  Third, 
to  any  contractor,  or  construction  company  intervening  between  a  sub-contractor  and 
the  railroad  company,  in  the  order  of  such  intervention  from  such  sub-contractor 
upward  to  the  owner  of  the  railroad,  any  balance  due  after  payment  by  the  company, 
of  amounts  found  due  in  the  order  of  priority  above  stipulated.  (April  6,  1883,  80  v. 
99;  R.  S.   1880;  March  31,   1874,  71  v.   51,   §   1.) 


Intent  and  meaning  of  act. 

The  true  intent  and  meaning  of  §§  3207- 
3211  is  declared  to  be  as  follows:  "Any  per- 
son or  persons  who  perform  labor,  or  fur- 
nish material  or  boarding,  under  contract, 
express   or   implied,   with   such   railroad   com 


construction  of  such  railroad,  or  any  part 
thereof,  is  entitled  to  a  lion  for  the  payment. 
of  the  same  upon  such  railroad,  as  provided 
in  §  320S  of  tho  above  recited  act.'" — Act  of 
April  10.  1884,  SI  v.  126. 
Labor  or  liens   on   railroads. 


pany,  or  any  of  its  authorized  agents,  for  the  '      See  §  3398a  et  seq.  and  §  3231-1  et  seq. 


84  Private  Corporations  in  Ohio. 

Railroads — Lien,  etc.,  on,  §  3208. 


v.  Bowman,  41  Oh.  St.  37  (1884);  Industrial, 
etc.,  Co.  v.  Supply  Co.,  1  0.  F.  D.  483 
(1897);  Bowman  v.  Springfield,  etc..  R.  R. 
Co.,  1  O.  C.  C.  64  (1885)  ;  s.  c.,  1  C.  D.  39.  S?e 
Cleveland,  etc.,  Ry.  Co.  v.  Trust  Co.,  86  Fed. 
73  (1898);  Industrial,  etc.,  Co.  v.  Electrical, 
Operation  of  act  is  prospective.  j  etc.,  Co.,  58  Fed.  732  (1893). 


Mortgage  has  priority. 

See  Toledo,  etc.,  R.  R.  Co.  v.  Hamilton,  134 
C.  S.  296.  3U1 ;  Feike  v.  Railroad  Co.,  12  O.  C. 
C.  362  (1892)  ;  s.  c,  5  C.  D.  640;  s.  c,  14  O.  C. 
C.  186  (1897);  s.  c,  7  C.  D.  652. 


Not  applicable  to  street  railroads. 

Massillon  Bridge  Co.  v.  Cambria  Iron  Co.,  59 
Oh.  St.  179   il898). 

See  generally  as  to  this  law  Scioto  Valley 
Ry.  Co",  v.  Cronin,  1  W.  L.  B.  315  (1876). 


See  Feike  v.  Railroad  Co.,  12  0.  C.  C.  362 
(1S92);  s.  c,  5  C.  D.  640. 

Mechanics'   lien  on   railroads   and   rail- 
road bridges  under  general  act. 

See  Rutherfoord   v.  Cincinnati,   etc.,  R.  R. 
Co.,  35  Oh.   St.  559   (1880);   Smith  Bridge  Co. 

§  3208.  WHAT  LIEN  SHALL  HAVE  PRECEDENCE;  HOW  SUCH  LIEN  PER- 
FECTED; PROCEEDINGS  UNDER. —  A  person  who  performs  labor  or  furnishes 
materials  for  or  in  construction  of  any  railroad,  depot  buildings,  water-tanks,  or  any 
part  thereof,  and  a  person  who  furnishes  boarding  on  the  order  of  any  contractor  or 
sub-contractor,  to  persons  employed  by  them  or  either  of  them,  in  furnishing  mate- 
rials, or  performing  labor  for  or  in  construction  of  such  railroad,  depot  buildings, 
water-tanks,  or  any  part  thereof,  in  addition  to  his  rights  under  the  preceding  section 
shall  have  a  lien  for  the  payment  of  the  same  upon  such  railroad  and  such  lien  shall 
have  and  maintain  precedence  over  any  lien  taken,  or  to  be  taken,  and  shall  subsist 
for  one  year  from  the  date  of  filing  the  attested  account  hereafter  provided  for;  and 
if  an  action  is  brought  to  enforce  the  lien  within  that  time,  it  shall  continue  in  force 
until  finally  adjudicated.  In  order  to  perfect  such  lien,  a  person  performing  labor, 
or  furnishing  materials,  or  boarding,  as  herein  specified,  shall,  within  forty  days  from 
the  date  that  such  person  ceased  performing  labor,  or  furnishing  materials,  or  board- 
ing, on  or  for  the  railroad  file  with  the  recorder  of  the  county  where  the  labor  was 
performed,  or  materials,  or  boarding  furnished,  an  affidavit  containing  an  itemized 
statement  of  the  kind  and  amount  of  materials  furnished,  or  labor  performed,  the 
time  when,  the  contractor  or  sub-contractor  for  whom,  and  the  section  and  place 
■where,  on  the  line  of  the  road  the  labor  was  performed,  or  materials  furnished,  and 
the  amount  due  therefor,  after  crediting  all  payments  and  set-offs;  and,  in  case 
of  boarding  furnished,  such  affidavit  shall  have  attached  thereto  an  itemized  account 
of  such  board,  showing  the  name  of  the  contractor  or  sub-contractor  on  whose  order 
it  was  furnished,  the  several  persons  to  whom  the  same  was  furnished,  the  weekly 
rate  of  boarding,  and  the  several  amounts  unpaid  by  each  respectively.  On  filing 
the  affidavit  here  provided  for  it  shall  be  recorded  in  a  separate  book  to  be  provided 
therefor,  and  shall  then  operate  as  a  lien  on  said  railroad,  in  the  manner  and  subject 
only  to  the  limitations  here  provided.  The  claimant  shall,  within  ten  days  after 
filing  his  affidavit  with  the  recorder,  serve  a  notice  in  writing  upon  the  secretary,  or 
other  officer  or  authorized  representative  of  the  railroad  company,  by  delivering  or 
leaving  a  copy  thereof  at  his  usual  place  of  residence,  or  place  of  doing  business, 
which  notice  shall  contain  a  statement  of  the  facts  of  his  filing  such  affidavit,  the 
county  wherein  filed,  the  amount  of  his  claim,  and  whether  for  labor,  materials  or 
boarding  furnished,  and  the  contractor  or  sub-contractor  for  whom  rendered.  Pro- 
vided, that  when  the  notice  in  writing  required  to  be  served  upon  the  secretary,  or 
other  officer  or  authorized  representative  of  the  railroad  company,  cannot  be  served  in 
the  county  where  said  affidavit  is  filed,  such  notice  shall  be  served  by  the  recorder 
upon  the  representative  of  the  railroad  aforesaid  by  depositing  in  the  post-office  a 
letter  containing  such  notice  directed  to  his  place  of  residence,  or  place  of  doing  busi- 
ness, if  known  to  such  recorder.  Any  person  failing  to  file  his  affidavit  aforesaid, 
and  serving  the  notice  aforesaid,  within  the  time  herein  prescribed,  shall  be  deemed 


M  ISt'KLI.AXKOIS    I  'kovisions. 


85 


Railroads  —  Lien,  etc.,  on,  SS  3209,  3210. 


and  held  to  have  waived  all  claim  under  this  section,  against  the  railroad  company. 
(April  6,  1883,  80  v.  99;  R.  S.  1880;  March  31,  1874,  71  v.  51,  §  1.) 


Notice. 

Under  this  section  a  substantial  compliance 
with  the  conditions  of  the  statute  providing 

for  the  service  of  written  notice  upon  1  lie 
owner  of  the  roud  is  essential  to  create  any 
obligation.— Railway    Co.    v.   Cronin,   38   Oh. 

St.   122    (1SS2). 

Service  of  notice  on  director. 

The  service  of  a  notice  under  this  section  on 
a  director  of  the  company  to  be  affected  by  it 
is  sufficient. —  Railway  Co.  v.  McCoy,  42  Oh. 
St.  251   (1884). 

Mortgage  covering  after-acquired  prop- 
erty not  prior  to  lien. 

See  Rouscnlp  v.  Ohio  Southern  R.  R.  Co.,  19 
0.  C.  C.  436  (1899);  s.  c,  10  C.  I).  621.  See 
Reed  v.  Ginsburg  (Sup.  Ct.),  45  W.  L.  B.  161 

(1901). 


Effect   of  taking  promissory   notp«\ 

Under  this  section  the  taking  of  ;i  note  does 
nut   waive  or  affed   the  right   to  a    Len,  n  i  i^ 

it    necessary  to  refer  to  or  describe  Hie  i  ole  in 

taking  such    lien. —  Rousculp   v.  Ohio   South 
era  R.  R.  Co.,  19  O.  C.  C.  436  (1899)  ;  -.  c,  10 
C.  D.  621. 

Lien   not   lost  by   an    extension   of   *' 

Carnegie  v.  Lancaster,  etc.,  Ry.  Co.,  1  X.  P. 
300  (1894)  ;  s.  c,  3  Dee.  343. 

Lien  may  be  obtained  for  materials  de- 
livered  out   of   state. 

Carnegie  v.  Lancaster,  etc.,  Ry.  Co.,  1  N.  P. 
300  (1894);  s.  c,  3  Dec.  343. 

Electric   light   plant,   when   not   part   of 
railroad. 

See   Industrial,   etc..   Co.   v.   Electrical,   etc., 
Co.,  58  Fed.  732    (1893). 


§  3209.  HOW  ACTION  MAY  BE  BROUGHT.—  Any  person  obtaining  and  hold- 
ing a  lien  provided  for  in  the  foregoing  section,  may,  in  addition  to  his  remedies, 
under  section  thirty-two  hundred  and  seven,  proceed  by  petition  as  in  other  cases  of 
lien,  against  the  owner  of  and  all  other  persons  interested,  as  lien-holders  or  other- 
wise, in  any  such  railroad,  and  obtain  such  judgment  as  justice  and  equity  may 
require;  and  for  the  purposes  of  such  suit  any  number  of  lien-holders  provided  in  the 
preceding  section  may  join  as  parties  plaintiffs,  by  separately  stating  and  numbering 
their  respective  claims;  provided,  that  if  several  liens  be  obtained  by  several  persons 
on  the  same  railroad  under  the  provisions  of  section  thirty-two  hundred  and  eight, 
they  shall  have  no  priority  among  themselves,  but  payment  thereon  shall  be  made 
pro  rata.     (April  6,  1883,  80  v.  99;  R.  S.  1880;  March  31,  1874,  71  v.  51,  §  1.) 

Remedy  is  by  action  for  accounting. 

Schneider  v.  Cincinnati,  etc.,  Ry.  Co.,  20  W.  L.  B.  457    (1888). 


§  3210.  CONTRACTOR  TO  BE  NOTIFIED  OF  TIME  OF  PAYMENT;  DISPUTED 
CLAIMS  AND  HOW  ADJUSTED.—  Each  contractor  or  sub-contractor  shall  have  at 
least  five  days'  notice,  in  writing,  of  the  time  when  the  lien  for  labor,  boarding  or 
materials  furnished  under  a  contract  with  him  will  be  paid,  which  may  be  served 
upon  him  personally  or  upon  his  authorized  agent  or  foreman,  by  the  owner  of  the 
railroad,  or  any  officer  or  agent  thereof,  stating  therein  the  time  when  such  liens  will 
be  paid;  and,  on  request  of  such  contractor  or  sub-contractor  he  shall  be  permitted  to 
examine  such  lien  claims  before  they  are  paid,  at  any  time  after  the  notice  has  been 
given;  provided,  that  if  such  notice  cannot  be  served  in  the  county  where  the  lien 
is  filed,  the  same  may  be  given  by  publication  in  some  newspaper  of  general  circula- 
tion in  such  county  for  the  period  of  two  weeks,  if  he  dispute  any  of  the  claims,  the 
company  or  owner  of  the  road  shall  withhold  payment  of  the  disputed  claims  until 
they  are  adjusted;  and  if  the  matter  cannot  be  adjusted  between  the  parties  inter- 
ested, it  may  be  submitted  to  the  arbitration  of  three  disinterested  persons,  one  to  be 
chosen  by  each  of  the  parties,  and  one  by  the  two  thus  chosen;  and  their  decision,  or 
that  of  any  two  of  them,  shall,  in  the  absence  of  fraud  or  collusion,  be  final  and  con- 
clusive on  the  parties.  If  any  claim  be  disputed  and  is  not  settled  or  submitted  to 
arbitration,  the  claimant  shall,  in  such  case,  be  required  to  commence  an  action  on  his 
claim  before  the  proper  tribunal,  within  forty  days  after  notice  that  his  claim  has 
been  disputed,  and  prosecute  the  same  to  final  judgment  without  delay.     And  the 


86 


Private  Corporations  in  Ohio. 


Railroads  —  Regulations  as  to  Freight,  §§  3221-3223. 

amount  of  any  disputed  claim  thus  ascertained  or  adjudicated  shall  then  be  paid  by 
the  railroad  owner.  Provided  that,  after  notice  given  as  above  provided,  if  no  objec- 
tion is  filed  against  such  claim  within  ten  days  after  the  expiration  of  the  term  of 
service  of  notice  as  above  specified,  then  the  contractor  or  sub-contractor  shall  be 
held  to  have  waived  all  objection  to  such  claim,  and  the  same  shall  be  taken  to  be 
correct  as  against  such  contractor  or  sub-contractor.  (April  6,  1883,  80  v.  99;  R.  S. 
1880;  March  31,  1874,  71  v.   51,  §  2.) 


Limitation. 

The  limitation  of  time  applies  to  contro- 
versies arising  between  the  contractor  or  sub- 
contractor and  the  person  furnishing  materials 


or  work,  and  not  to  right  of  action  on  the 
part  of  the  latter  against  the  owner  of  the 
road.— Railway  Co.  v.  Cronin,  38  Oh.  St.  122 

(1SS2). 


§  3211.  TO  WHOM  PRECEDING  SECTIONS  APPLY;  THE  WORD  "  OWNER  » 
DEFINED. —  The  provisions  of  the  four  preceding  sections  shall  apply  to  and  include 
any  person  who  furnishes  grain,  hay,  merchandise,  tools  or  implements,  or  who 
repairs  any  tools  or  implements,  on  the  order  of  any  contractor  or  sub-contractor, 
for  their  own  use,  or  the  use  of  persons  employed  by  them  or  either  of  them,  while 
furnishing  materials  or  labor  for  or  in  construction  of  such  railroad;  provided,  that 
the  amount  of  such  claim  shall  not  exceed  the  wages  of  the  person  performing 
labor  or  furnishing  materials,  to  whom  furnished,  or  the  amount  found  due  such 
contractor,  or  sub-contractor,  under  the  provisions  of  section  thirty-two  hundred  and 
seven  (;)  and  in  every  such  case,  the  requirements  of  section  thirty-two  hundred 
and  eight,  as  to  filing  affidavits  and  giving  notices,  shall  be  strictly  complied  with; 
and,  provided  further,  that  the  aggregate  of  all  liens  taken  and  perfected  under 
sections  thirty-two  hundred  and  seven,  thirty-two  hundred  and  eight,  thirty-two 
hundred  and  ten  and  thirty-two  hundred  and  eleven,  shall  not  be  in  excess  of  the 
actual  construction  contract  price  of  the  railroad  company.  The  word  "  owner,"  in 
these  sections  shall  be  held  and  considered  as  including  any  lessee,  receiver,  corpo- 
ration, company,  or  persons  owning,  operating  or  managing  any  railroad  with  whom 
or  in  whose  behalf  the  contracts  herein  have  been  made.  (April  6,  1883,  80  v.  99; 
R.  S.   1880;  March  31,   1874,  71  v.   51,  §  3.) 

§  3221.  NOTICE  TO  OWNER  OF  RECEIPT  OF  FREIGHT.—  All  express  com- 
panies, transportation  companies,  forwarding  and  commission  merchants,  common 
carriers,  warehousemen,  wharfingers,  and  railroad  companies,  doing  business  in  this 
state,  shall  within  thirty  days  after  the  receipt  of  any  property  in  their  warehouse, 
depot,  station,  store  or  other  place  of  deposit  or  doing  business,  when  such  property  is 
plainly  marked  with  the  owner's  name  and  place  of  residence,  or  be  otherwise  known, 
notify  the  owner  that  such  property  is  held  by  them  subject  to  charges,  either  by 
leaving  such  notice  at  the  usual  residence  or  place  of  business  of  the  owner,  or  by 
depositing  the  same,  postage  prepaid,  in  the  proper  postoffice,  duly  addressed  to  such 
owner.     (January  26,  1875,  72  v.  17,  §  1.) 

§  3222.  REGISTER  OF  FREIGHT.—  All  such  persons,  associations,  or  com- 
panies, shall  keep  a  register,  in  which  shall  be  entered  a  list  or  inventory  of  all  goods, 
wares,  merchandise,  baggage,  or  other  property,  with  a  pertinent  description  thereof 
by  marks  thereon,  the  size  and  weight,  and  the  depot,  warehouse,  or  other  place 
where  the  same  is  deposited,  the  time  when  the  same  was  received,  and  the  amount 
of  charges  claimed  thereon,  which  may  be  left  in  the  possession  of  such  person,  asso- 
ciation or  company,  by  reason  of  the  owner  being  unknown,  or  when  such  owner's 
residence  is  not  known,  or  when  such  property  has  been  refused,  or  the  owner  has 
neglected  to  receive  the  same.     (January  26,   1875,  72  v.   18,  §  2.) 

§  3223.  WHEN  PROPERTY  MAY  BE  SOLD.—  When  any  such  property  has  been 
conveyed  to  any  point  in  this  state,  and  remains  unclaimed  for  the  space  of  six  months 
at  the  place  to  which  it  was  consigned,  and  the  owner  fails  within  that  time  to  claim 
the  same,  and  to  pay  the  proper  charges,  if  there  be  any  against  it,  such  person,  asso- 


Miscellaneous  Provisions.  87 

Railroads — Regulations  as  to  Freight,   SS   3224-3227. 

ciation,  or  company,  may  sell  such  freight  or  other  property,  at  public  auction,  offer- 
ing each  parcel  separately.     (February  23,   1877,  74  v.   17,  S  3.) 

§  3224.  NOTICE  OF  SALE  OF  PROPERTY  TO  BE  GIVEN.—  Such  property  may 
be  offered  for  sale  either  in  the  place  where  the  office,  station,  depot,  or  warehouse  in 
which  the  same  has  been  deposited  for  safe  keeping,  is  located,  or  at  any  other  place 
where  such  person,  association,  or  company  may  deem  best  to  insure  a  prompt  sale 
thereof;  at  least  thirty  days'  notice  of  the  time  and  place  of  sale,  containing  a  descrip- 
tive list  of  the  several  articles  to  be  sold,  with  names,  numbers,  and  marks  thereon, 
shall  be  given,  by  posting  such  notice  at  the  office,  station,  or  depot  of  such  person, 
association,  or  company  in  the  county  where  the  place  to  which  such  property  was 
consigned  is  situated,  or,  if  there  be  no  such  office,  station,  or  depot,  by  posting  such 
notice  in  three  public  places  in  such  county;  and,  in  addition  to  the  posting  at  the 
place  of  consignment,  such  descriptive  list  must  be  posted  at  the  place  where  the  prop- 
erty is  to  be  sold,  and  thirty  days'  notice  of  the  time  and  place  of  the  sale  must  be 
published  in  a  newspaper  of  general  circulation  in  the  county  where  the  property  is 
to  be  sold.     (February  23,  1877,  74  v.  18,  §  4.) 

§  3225.  DISPOSITION  OF  PROCEEDS  OF  SALE. —  Such  person,  association,  or 
company,  from  the  proceeds  of  the  sale  of  such  property,  shall  pay  all  the  necessary 
costs  and  expenses  of  the  sale,  and  all  proper  charges  for  freight  and  storage  of  the 
property  sold,  apportioning  such  expenses  and  charges,  as  near  as  may  be,  among 
the  articles  sold,  to  the  amount  received  for  each,  and  hold  the  overplus,  if  any,  sub- 
ject to  the  order  of  the  owner  thereof,  at  any  time  within  one  year  after  such  sale, 
upon  proof  of  ownership  by  affidavit  of  the  claimant  or  his  attorney;  and  after  the 
expiration  of  one  year,  all  such  sums  unclaimed  shall  be  paid  into  the  state  treasury, 
to  be  placed  to  the  credit  of  the  common  schools;  but  any  such  article  remaining 
unsold  may  be  again  offered  as  above  provided,  until  sold.  (February  23,  1877,  74 
V.   18,  §  4.) 

§  3226.  SUIT  TO  SUBJECT  FREIGHT  TO  PAYMENT  OF  COSTS,  ETC.— Such 
person,  association  or  company  may  bring  suit  before  any  court  of  competent  jurisdic- 
tion for  the  amount  of  the  freight,  storage,  and  legal  charges  thereon,  and  subject 
such  freight  to  the  payment  thereof,  after  ten  days  from  the  giving  of  the  notice  pro- 
vided for  in  section  thirty-two  hundred  and  twenty-one  unless  such  cost  and  charges 
are  paid,  if  the  owner  or  consignee  is  known  or  can  be  found  in  the  county,  but  if  such 
owner  or  consignee  is  unknown,  a  non-resident  of  the  county,  or  his  place  of  residence 
is  unknown,  then  such  notice  shall  be  published  for  not  less  than  ten  days  in  a  news- 
paper of  general  circulation  in  such  county,  and  in  such  case  the  suit  may  be  brought 
after  ten  days  from  the  first  publication;  and  the  judgment  obtained  shall  be  a  lien 
upon  the  freight,  to  satisfy  which,  with  costs  of  suit,  the  same  shall  be  sold.  (Feb- 
ruary 23,    1877,  74  v.    17,   §   3.) 

§  3227.  STORAGE  AND  THE  LIEN  THEREFOR. —  Such  person,  association,  or 
company,  after  the  expiration  of  ten  days  from  the  receipt  of  goods  at  the  place  to 
which  they  are  consigned,  may,  upon  giving  or  depositing  the  notice  provided  in 
section  thirty-two  hundred  and  twenty-one,  and  the  expiration  of  ten  days,  charge  a 
fair  and  reasonable  cost  for  storage,  which  shall  be  a  lien  upon  the  goods  so  stored, 
and  such  person,  association,  or  company  may,  after  the  expiration  of  said  ten  days, 
deliver  such  goods  to  any  warehouseman  or  storage  merchant,  at  the  point  of  destina- 
tion of  such  goods  or  merchandise,  or  in  case  there  be  no  responsible  warehouseman  or 
storage  merchant  at  such  point  willing  to  receive  the  goods,  then  at  the  most  con- 
venient point  where  storage  can  be  effected,  and  receive  from  such  warehouseman  the 
freight  and  charges  due  such  railroad  or  other  company  upon  the  same,  notifying  the 
owner  or  consignee  of  such  storage,  when  known,  in  the  manner  provided  in  section 


88  Private  Corporations  in  Ohio. 

Railroads  —  Regulations  as  to  Freight,   §§  3228-3231. 

thirty-two  hundred  and  twenty-one,  and  the  advances  made,  and  all  reasonable 
charges  for  storage  shall  be  a  lien  upon  the  goods  so  stored.  (February  23,  1877,  74 
v.  17,  §  3.) 

§  3228.  COPY  OF  NOTICE,  SALE  BILL,  ETC.,  TO  BE  KEPT.— Such  person, 
association,  or  company  shall  keep  a  copy  of  the  notice,  a  copy  of  the  sale  bill,  and 
the  expenses  thereof,  proportional  to  each  article  sold,  and  also  the  oath  of  the  claim- 
ant of  the  residue  of  the  proceeds  as  aforesaid,  and  shall  furnish  an  inspection  of  the 
same,  and,  if  required,  copies  thereof,  to  any  one,  on  payment  of  the  proper  charges 
therefor.     (January  26,  1875,  72  v.  19,  §  5.) 

§  3229.  SALE  OF  PERISHABLE  ARTICLES. —  If  any  perishable  property  be  so 
conveyed  as  freight,  and  remain  unclaimed  until  in  danger  of  great  depreciation,  or 
the  same  be  refused,  or  the  owner  thereof  cannot  be  found,  then  such  person,  associa- 
tion or  company  may  sell  the  same  at  private  sale,  or  auction,  without  giving  notice, 
for  the  best  price  it  will  bring,  and  apply  the  proceeds  as  aforesaid.  (January  26, 
1875,  72  v.  19,  §  6.) 

Live   stock  is  perishable. 

Trustees  v.  Brighton  Stock  Yards  Co.,  27  Oh.  St.  435   (1875). 

i 
§  3230.  WITHIN  WHAT  TIME  PROPERTY  MAY  BE  CLAIMED.—  If  the  owner 
of  any  such  property,  at  any  time  within  five  years,  reclaim  the  same,  and  produce 
satisfactory  evidence  to  the  auditor  of  state  of  his  ownership  thereof,  the  auditor  shall 
draw  his  warrant  in  favor  of  such  person  upon  the  treasurer  of  state  for  the  amount 
paid  into  tiie  state  treasury.     (January  26,  1875,  72  v.  20,  §  9.) 

§    3231.     PENALTY  FOR  NEGLECT  TO   COMPLY  WITH  PROVISIONS.— Any 

such  person,  association  or  company  who  refuses  or  neglects  to  perform  any  of  the 
duties  required  by  this  chapter,  with  the  intent  to  avoid  the  provisions  thereof,  shall 
forfeit  and  pay  a  sum  not  less  than  one  hundred  dollars,  nor  more  than  five  hundred 
dollars,  at  the  discretion  of  the  court,  to  be  recovered  for  the  use  of  common  schools 
in  the  county  in  which  the  principal  office  of  such  person,  association,  or  company  is 
located,  and  shall,  moreover,  be  liable  to  any  person  injured  thereby  in  double  the 
value  of  the  property.     (January  26,  1875,  72  v.  20,  §  7.) 

§  3231-1.  [Sec.  1.]  LIEN  UPON  RAILROAD,  FOR  LABOR  OR  MATERIAL 
FURNISHED. —  Any  person  who  shall  have  performed  common  or  mechanical  labor 
upon,  or  furnished  supplies  to  any  railroad,  street  railroad,  or  railroad  operated  wholly 
or  in  part  by  electric  motor  power,  turn-pike,  plankroad,  canal  or  on  any  public 
structure  being  erected,  or  on  any  abutment,  pier,  culvert  or  foundation  for  same,  or 
for  any  side-track,  embankment,  excavation,  or  any  public  work,  protection,  ballast- 
ing, delivering  or  placing  ties,  or  track-laying,  whether  the  labor  is  performed  for, 
or  the  supplies  or  material  is  furnished  to  any  company,  corporation,  contractor,  or 
sub-contractor,  construction  company,  or  any  individual,  shall  have  a  first  immediate 
and  absolute  lien  on  the  whole  of  the  property  on  which  said  work  is  done,  and  to 
which  said  supplies  have  been  contributed,  and  on  any  fund  arising  from  the  sale 
thereof  or  any  part  thereof  under  an  order  of  any  court,  and  shall  hold  the  railroad, 
street  railroad,  or  railroad  operated  wholly  or  in  part  by  electric  motor  power,  canal, 
turnpike,  plank  road,  or  structure,  to  the  creation  or  construction  of  which  the  said 
labor  or  supplies  has  been  contributed,  or  so  much  thereof  as  may  have  been  in  whole 
or  in  part  created  by  said  labor  or  supplies,  to  the  exclusion  of  any  such  railroads, 
canal,  turnpike,  plank  road,  public  work  or  structure,  as  to  operation,  occupation  or 
use.  until  the  claim  for  such  labor  or  supplies  is  properly  adjusted  and  paid  in  full. 
This  act  shall  apply  to  all  work  now  being  constructed,  or  material  now  being  fur- 


MlSCKLLAXKOl'S    PROVISIONS.  89 


Railroads  —  Lien,  etc.,  on,  §§  3231-2  3231-5. 


nished,   and    to   all    work   hereafter    constructed    and    material    hereafter    furnished. 
(May  12,   1902,  95  v.  608;  March  20,  1889,  86  v.  120.) 


Construction   of  ac*. 

New   England    Engine  Co.   v.   Railway  Co., 

supra. 


Not  applicable  to   street  railroads. 

Massillon  Bridge  Co.  v.  Cambria  Iron  ('<>..  59 
Oh.  St.  179  (1898);  New  England  Engine  Co. 
v.  Railway  Co.,  75  Fed.   1(12   (1896). 

§  3231-2.  Sec.  2.  HOW  LIEN  OBTAINED.— When  it  shall  be  deemed  necessary 
for  any  construction  company,  contractor,  sub-contractor,  mechanic,  laborer,  or  per- 
son contributing  supplies  or  material  to  secure  their  claim  against  any  railroad,  canal, 
turnpike,  plankroad,  public  wcrk  or  public  structure,  either  for  work  done  or  material 
furnished,  they  shall  file  a  sworn  itemized  statement,  within  thirty  days  after  said 
work  was  performed  or  materials  furnished,  of  the  amount  of  work  done  or  material 
furnished,  showing  the  balance  due  and  claimed  for  labor  or  material  furnished,  with 
the  recorder  of  the  county  or  counties  within  which  said  work  was  done  or  materials 
furnished.  And  if  several  liens  be  obtained  by  several  persons  on  the  same  job,  in  the 
manner  prescribed  by  this  act,  they  shall  have  no  priority  among  themselves,  but 
payments  thereon  shall  be  made  pro  rata.     (March  20,   1889,  86  v.   120.) 

§  3231-3.  Sec.  3.  BOND;  WHEN  INJUNCTION  MAY  ISSUE.— Any  construc- 
tion company,  contractor,  mechanic,  laborer  or  person  contributing  supplies  or  mate- 
rial to  any  work  named  in  section  one  (1)  of  this  act,  shall  at  the  time  of  filing  the 
sworn  statement  of  account  as  provided  in  section  two  (2)  of  this  act,  file  a  good  and 
sufficient  bond  of  indemnity  for  an  amount  equal  to  the  amount  claimed,  which  bond 
shall  be  approved  by  the  probate  judge,  and  shall  be  so  conditioned  as  to  save  and 
protect  the  defendant  in  any  case  arising  under  this  act,  and  shall  then  be  entitled  to 
a  decree  of  the  common  pleas  court,  enjoining  and  prohibiting  the  operation,  use  or 
occupancy  of  the  property  created  in  whole  or  in  part  by  the  party  or  parties  asking 
for  said  injunction;  and  the  said  injunction  shall  not  be  dissolved  until  the  court  is 
satisfied  that  the  claim  has  been  adjusted  and  paid  in  full.  (March  20,  1889,  86 
v.   120.) 

§  3231-4.  Sec.  4.  ENGINEER  TO  MAKE  MEASUREMENTS;  ESTIMATES, 
ETC. —  Any  civil  engineer  who  shall  be  employed  as  chief  or  assistant  engineer  in  the 
surveying,  platting  or  cross-sectioning  of  any  railroad,  canal,  turnpike,  plank  road 
or  other  public  road,  shall,  before  the  work  is  commenced,  make  an  accurate  measure- 
ment of  the  same,  and  shall  prepare  a  profile  of  each  section  of  one  mile  or  less  of  said 
work,  showing  quantities  of  each  and  every  class  of  work  to  be  done  on  said  mile  or 
less;  and  shall  also  designate  the  nearest  benchmark  or  point  from  which  measure- 
ments are  made,  and  shall  drive  stakes  at  top  of  slope,  at  foot  of  embankments,  at 
sides  and  center  of  grade  and  around  every  burrow  pit  for  each  one  hundred  feet, 
showing  in  plain  figures  by  feet  and  tenths  of  a  foot  the  depths  of  cut  or  height  of  fill 
or  embankment,  together  with  a  correct  showing  of  the  quantity  of  overhaul  beyond 
a  given  number  of  feet,  in  cubic  yards,  for  each  section  of  a  mile  or  less;  and  it  shall 
be  the  duty  of  such  chief  or  assistant  engineer  to  furnish,  on  demand,  when  any  work 
is  finished,  to  any  company,  contractor,  sub-contractor  or  person  a  final  statement  of 
quantities  in  each  class  of  work  done  or  supplies  of  material  furnished  by  parties 
interested.     (March  20,   1889,  86  v.    120.) 

§  3231-5.  Sec.  5.  PENALTY. —  Any  civil  engineer  or  assistant  engineer,  whose 
duty  it  is  to  ascertain  quantities  from  actual  measurement,  and  on  which  final  esti- 
mates are  to  be  made,  who  shall  knowingly  give  other  than  the  true  quantities,  with 
intent  to  defraud  the  construction  company,  contractor,  sub-contractor,  laborer  or  per- 
son furnishing  supplies  or  material,  shall,  if  the  amount  of  the  discrepancy  exceed  at 
the  contract  price,  thirty-five  dollars,  be  deemed  guilty  of  a  felony,  and  shall  be 
punished  by  a  fine  not  less  than  the  amount  at  contract  price  of  all  work  done  or 
material  furnished  and  not  included  in  his  final  estimate,  or  be  confined  in  the  peni- 
tentiary for  not  less  than  one  or  more  than  five  years.     (March  20,  1889,  86  v.  120.) 


PART    III. 


GENERAL  CORPORATION  LAWS. 


§  3232.  By  what  laws  corporations  shall  be  governed. 

§  3233.  "What  corporations  may  accept  the  provisions  of  this  title. 

§  3233-1.  Special  charters  not  accepted  or  acted  on,  repealed. 

§  3233-2.  Loss  of  certificate  of  incorporation  of  religious  society. 

§  3233-3.  Prima  facie  evidence  of  incorporation  of  religious  society. 

§  3234.  Application  of  existing  laws  to  corporations  created  prior  to  1S51.    Provision    as  to 
insurance  companies. 

§  3235.  For  what  purpose  corporations  may  be  formed ;   sanitarium  companies,  real  estate 
companies. 

§  3235a.  May  have  common  and  preferred  stock ;  provisions. 

§3236.  Articles  of  incorporation;  what  to  contain. 

§  3237.  What  articles  must   state  in  certain  cases. 

§  323S.  Articles  acknowledged,  certified,  filed  with  secretary  of  state,  as  to  same  or  similar 
name. 

§  3238a.  Amendments,  how  made,  proviso,  record,  notice,  waiver,  fee. 

§  3239.  Corporation  created,  general  powers. 

§  3240.  First  election  of  trustees  in  corporation  not  for  profit ;   term  and  number. 

§  3241.  Membership  in  corporation  not  for  profit,  religious,  secret,  and  benevolent  societies. 

§3242.  Corporation  for  profit.     To  give  notice  of  opening  books  for  subscription;   notice 
may  be  waived. 

§  3243.  When  subscriptions  of  stock  are  payable. 

§  3244.  Certificate  of  subscription  of  stock.     Notice  of  election  of  directors. 

§  3245.  Conduct  of  election.     Cumulative  voting.     Inspectors  of  election. 

§  3245a.  Corporations  may  limit  votes  of  stockholders. 

§  3245b.  Provisions  to  which  such  corporations  are  subject. 

§  3245a.  Application  for  appointment  of  inspectors  of  election ;  notice. 

§  3245b.  Appointment  of  inspectors ;  vacancies. 

§  3245c.  List  of   stockholders   to  be   delivered  to   inspectors;    stock   ownership,   how   ascer- 
tained. 

§  3245d.  Conduct  of  elections  by  inspectors;  certificate  of  result. 

§  3245e.  Compensation  of  inspectors. 

§  324G.  Annual  and  other  elections  for  trustees  and  directors. 

§  3247.  Oath  and  duties  of  trustees  and  directors. 

§  3248.  Powers  of  directors  and  trustees. 

§  3249.  Corporation  may  adopt  regulations. 

§  3250.  Trustees  or  directors  may  adopt  by-laws. 

§  3251.  Hoav  regulations  may  be  adopted. 

§  3252.  What  may  be  provided  for  by  regulations. 

§  3253.  How  payment  of  stock  subscriptions  enforced. 

§  3254.  Stockholders  entitled  to  certificate  of  stock :  record. 

§  3254-1.  Re-issuing  of  certificates  of  stock  lost  or  destroyed. 

§  3254-2.  ITow  re-issue  effected. 

§  3255.  Paid-up  stock  is  personal  property. 

§  3250.  Power  to  borrow  money  and  mortgage  property. 

§  3250a.  How  certain  corporate  moi'tgages   recorded. 

§  3257.  May  issue  convertible  bonds,  vote  of  directors.  . 

?  3258.  Stockholders  liable  in  an  amount  equal  to  their  stock. 

§  3259.  The  term  "  stockholders  "  defined. 

§  32(10.  Where  complaint  for  enforcement  of  liability  filed. 

[90] 


General  Corporation  Law. 


91 


What  Laws  Govern,  §5  3232-3233. 


§  3260a.  Action  by  court.     Appointmenl   of  receiver. 

§  3260b.  Enforcement   of  Liability   upon  insolvent   corporation. 

§  3260c.  Notice  to  nonresident   stockholders;  collection  oi   unpaid   installments  of  stock. 

§  3260d.  Courl    to  ascertain   and   adjudge   liabilities  of   ollicers   and    stockholders'    -nit-    by 

receiver. 

§  3260e.  Notice  of  creditors. 

§ 3260f .  Distribution  of  property  and  assets  of  insolvent  corporation. 

§3201.  Trustees  personally  liable  for  debts  contracted. 

§3262.  Increase  of  capital  stock. 

§  3203.  May  increase  by  preferred  stock. 

§  3204.  Reduction  of  capital  stock. 

§  3265.  Change  of  bonds  authorized. 

§  3200.  Corporate  property  to  be  employed  only  for  the  objects  of  the  corporation. 

§  3207.  Change  in  number  of  directors. 

§  3208.  Annual  statement   for  stockholders. 

§  320!).  When  provisions  of  this  chapter  do  not  apply. 

§3269-1.  Corporate  dividends  to  be  paid  from  surplus  profits  only. 

§  3209-2.  Unpaid  interest  due  corporation  not  to  be  included  in  profits. 

§  3209-3.  Surplus   profits ;    how   ascertained ;    prohibiting  advertisement   of  capital  not  sub- 
scribed and  paid  in. 

§  3209-4.  Penalty  for  violating  section. 


§  3232.  BY  WHAT  LAWS  CORPORATIONS  SHALL  BE  GOVERNED.  —  Corpora- 
tions created  before  the  adoption  of  the  present  constitution,  and  which  have  not,  by 
election  or  some  other  act,  come  to  be  governed  by  laws  since  passed,  shall  be  gov- 
erned and  controlled  by  the  laws  then  in  force,  and  the  valid  modifications  thereof 
since  or  herein  enacted;  other  corporations  now  existing  or  hereafter  created  shall  be 
governed  and  controlled  by  the  provisions  of  this  title. 


Effect  of  general  laws. 

A  general  law  of  the  state  will  affect  com- 
panies incorporated  under  special  acts,  as  to 
which  there  was  a  reserved  power  of  amend- 
ment or  repeal.  —  State  ex  rel.  v.  Cincinnati 
Gas,  etc.,  Co.,  18  Oh.  St.  202  (1868). 

Laws  reducing  freight  rates. 

Railroad  companies  organized  under  the  act 
of  1848,  before  the  adoption  of  the  present 
constitution,  and  which  have  not  relinquished 
their  right  to  be  governed  by  said  act,  are  not 


bound  by  later  acts  reducing  the  rates  of 
freight.  —  Iron  R.  R.  Co.  v.  Lawrence  Furnace 
Co.,  29  Oh.  St.  208  (1876). 

Boards  of  Trade  under  act  of  1866. 

The  Association  of  the  Tobacco  Trade  of 
Cincinnati,  a  corporation  formed  under  the  act 
of  April  3,  1800  (S.  &  S.  182),  since  the  repeal 
of  that  act,  is  under  this  section  governed  by 
the  provisions  of  title  2  of  the  Revised  Stat- 
utes. —  State  ex  rel.  v.  Casey,  38  Oh.  St.  555 
(1883). 


§  3233.  WHAT  CORPORATIONS  MAY  ACCEPT  THE  PROVISIONS  OF  THIS 
TITLE.  —  A  corporation  created  before  the  adoption  of  the  present  constitution,  and 
now  actually  doing  business,  may  accept  any  of  the  provisions  of  this  title,  and  when 
a  certified  copy  of  such  acceptance  is  filed  with  the  secretary  of  state,  so  much  of  its 
charter  as  is  inconsistent  with  the  provisions  of  this  title  is  hereby  repealed.  (May 
1,  1852;  50  v.  274,  §  71.) 


Partial  acceptance. 

Partial  or  conditional  acceptance  of  a  char- 
ter or  of  an  amendment  of  a  charter  is,  in 
the  absence  of  statute,  impossible.  —  Marietta. 
etc..  R.  R.  Co.  v.  Elliott.  10  Oh.  St.  57,  60 
(1859);  Baldwin  v.  Hillsborough,  etc.,  R.  R. 
Co.,  10  W.  L.  J.  337   (1853). 

Effect    on    railroad    companies    making 
leases. 

Railroad  companies  incorporated  prior  to 
the  adoption  of  the  constitution  of  1851,  and 


which  avail  themselves  of  the  general  corpora- 
tion act  by  taking  or  making  leases  of  their 
roads,  are  to  be  regarded  as  thereby  accepting 
a  provision  of  said  act.  within  the  meaning  of 
this  section,  and  relinquishing  all  rights  in- 
consistent with  the  provisions  of  said  act. — 
Cincinnati,  etc.,  R.  R.  Co.  v.  Cole,  29  Oh.  St. 
120    (1876). 

Necessity  of  formal   acceptance. 

In  order  to  work  a  repeal  of  charter  rights 
inconsistent  with  the  provisions  of  the  general 


92 


Private  Corporations  in  Ohio. 


Special  Charters  —  Existing  Corporations,  §§  3233-1-3234. 


corporation  act,  the  filing  of  a  certificate  of 
acceptance  with  the  secretary  of  state  is  not 
indispensable.  It  is  the  fact  of  acceptance 
which  binds;  the  certificate  being  merely  evi- 
dence, and  the  company  cannot  profit  by  its 
failure  to  file  a  certificate.  —  Dayton,  etc.,  R. 
R.  Co.  v.  Hatch,  1  Dis.  84  (1855)  •  Zabriskie  v. 
Cleveland,  etc.,  K.  R.  Co.,  23  How.  (U.  S.)  381 
(1860);  Cincinnati,  etc..  R.  R.  Co.  v.  Cole, 
supra;   Owen  v.  Purdy,   12  Oh.  St.  73    (1801). 


Transfer  of  special  rights. 

Special  privileges  conferred  on  a  railroad 
company  by  a  private  charter  granted  under 
the  constitution  of  1802,  do  not  so  inhere  in 
the  road  constructed  under  the  charter  as 
necessarily  to  pass  to  any  corporation  which 
may  have  acquired,  under  subsequent  legisla- 
tion the  right  to  operate  the  same.  —  Pitts- 
burg, etc.,  Ry.  Co.  v.  Moore,  33  Oh.  St.  384 
(1878).  See  forms  for  certificate  of  accept- 
ance. 


§  3233-1.    SPECIAL  CHARTERS  NOT  ACCEPTED  OR  ACTED  ON,  REPEALED. 

—  All  special  acts  of  incorporation  in  force  in  this  state,  which  have  not  been  accepted, 
or  acted  upon,  be  and  the  same  are  hereby  repealed.     (February  12,  1861,  58  v.  12.) 


A  special  charter,  being  regarded  as  merely 
an  offer  on  the  part  of  the  state  until  ac- 
ceptance,  may  be  revoked  and  repealed  at  any 
time  before  acceptance.  —  State  v.  Dawson,  16 
Ind.  40  (18(51). 

Judicial  notice   of  private  charters. 

Courts  cannot  take  judicial  notice  of  a  pri- 
vate or  special  statute  creating  a  corporation, 
unless  it  be  specially  pleaded  at  least  by  a 
reference  to  its  title  and  the  day  of  its  pass- 
age,  according   to   §   5092.  —  Pittsburgh,   etc., 


Ry.  Co.  v.  Moore,  33  Oh.  St.  384  (1878). 
Contra,  Brown  v.  State.  11  Oh.  276  (1842). 
See  Railroad  Co.  v.  Horl'hines.  46  Oh.  St.  643 
(188!))-.  Beatty  v.  Lessee  of  Knowles,  4  Pet. 
(U.  S.)  152  (1830).  See  State  v.  Granville 
Society,  11  Oh.   1,  9   (1841). 

Effect     of    new     constitution    on    unac- 
cepted special  charters. 

See  State  ex  rel.  v.  Roosa,  11  Oh.  St.  16 
(1800);  Citizens'  Bank  v.  Wright,  6  Oh.  St. 
318   (1856). 


§  3233-2.  LOSS  OF  CERTIFICATE  OF  INCORPORATION  OF  RELIGIOUS 
SOCIETY.  —  Whenever  it  shall  be  made  to  appear  to  the  satisfaction  of  the  secretary 
of  state  that  any  religious  society  or  corporation  heretofore  organized  or  incorporated 
under  the  laws  of  this  state  has  lost  its  charter  or  certificate  of  incorporation,  or  that 
the  same  has  been  destroyed,  it  shall  be  the  duty  of  the  secretary  of  state  to  issue  a 
new  certificate  of  incorporation  of  such  religious  society  or  corporation  theretofore 
issued,  and  the  time  as  near  as  may  be  ascertained  of  issuing  such  lost  or  destroyed 
certificate  as  shall  be  made  to  appear  to  him;  and  thereupon  all  deeds,  mortgages,  or 
other  instruments  of  writing  for  the  conveyance  of  land,  as  well  as  all  acts  done  by 
such  religious  society  or  corporation  by  virtue  of  such  certificate  or  charter  thereto- 
fore lost,  shall  be  binding  and  of  full  force  in  law  and  in  equity:  Provided,  that 
nothing  in  this  act  shall  be  so  construed  as  to  make  valid  any  act  not  authorized 
under  the  laws  of  this  state  which  heretofore  have  been  in  force.  (March  25,  1878; 
75  v.  77.) 

§  3233-3.  PRIMA  FACIE  EVIDENCE  OF  INCORPORATION  OF  RELIGIOUS 
SOCIETY.  —  The  fact  that  a  religious  society  for  not  less  than  thirty  years,  claiming 
to  have  been  duly  and  legally  incorporated  as  such,  and  performing  during  such  time 
duties  and  exercising  rights  as  such,  shall  be  prima  facie  evidence  of  the  original  issue 
of  such  charter  or  certificate  of  incorporation  as  claimed  by  such  society.  (March  25, 
1878;  75  v.  77.) 

See   Congregational   Church  v.   Webber.   54   Mich.  571    (1884). 


§  3234.  APPLICATION  OF  EXISTING  LAWS  TO  CORPORATIONS  CREATED 
PRIOR  TO  1851.  PROVISO  AS  TO  INSURANCE  COMPANIES.  —  Corporations  cre- 
ated before  the  adoption  of  the  present  constitution,  which  take  any  action  under  or 
in  pursuance  of  this  title,  shall  thereby  and  thereafter  be  deemed  to  have  consented, 
and  shall  be  held  to  be  a  corporation,  and  to  have  and  exercise  all  and  singular  its 
franchises  under  the  present  constitution  and  the  laws  passed  in  pursuance  thereof, 
and  not  otherwise;  provided,  that  any  fire  insurance  company  so  created,  complying 
with  the  requirements  of  sections  three  thousand  six  hundred  and  fifty-four  and 
three  thousand  six  hundred  and  fifty-five,  or  of  any  police  regulation  contained  in 


General  Corporation  Law. 


93 


Corporate  Purposes,  §  3235. 


chapter  eleven  of  this  title,  or  in  chapter  eight  of  title  three,  part  first,  shall  not  be 
deemed  to  have  consented,  and  shall  not  be  affected  by  the  provisions  of  this  section 
by  reason  of  such  compliance.  (R.  S.  1880;  May  18,  1886,  83  v.  201;  March  8,  1892, 
89  v.  73.) 


Loss    of    rights    by    change    of    time    of 

election. 

Where  a  corporation  created  before  the  con- 
stitution of  1851  had  a  delinite  time  and  term 
fixed  for  the  election  of  directors,  it  cannot 
change  the  time  of  such  elections  excepl  under 
section  3246,  and  having  made  such  change,  it 
becomes  in  all  respects  a  corporation  under 
the  present  constitution  and  laws. — State  ex 
rel.  v.  Lakamp,  4  ().  C.  C.  257   (1889);  s.  c.  2 

C.  D.  533. 

Loss  by  issuing  new  policies. 

A  fire  insurance  company  treated  prior  to 
the  constitution  of  1851,  by  issuing  policies 
not  authorized  by  its  charter  but  only  by  the 
general  corporation  act,  thereby  becomes  sub- 
ject to  such  act.  —  Knox  Co.  Mutual  Ins.  Co. 
v.  Bowersox,  G  0.  C.  C.  275  (1892);  s.  c.  3  C. 

D.  451. 

Loss  by  accepting  new  charter. 

A  corporation  will  be  deemed  to  have  ac- 
cepted a  charter  by  using  the  privileges 
therein  granted.  —  Cincinnati,  etc.,  R.  R.  Co. 
v.  Cole,  29  Oh.  St.  126  (1876)  ;  Shields  v.  State, 
26  Oh.  St.  86  (1875)  ;  Goodin  v.  Evans,  18  Oh. 
St.  150  (1868);  Owen  v.  Purdy,  12  Oh.  St.  73 
(1861). 

Acceptance   by   directors. 

Where  an  amendment  to  a  charter  provides 
for  acceptance  by  the  corporation,  the  board 
of  directors  have  authority  to  accept. — 
Goodin  v.  Evans,   18  Oh.  St/l50,  167    (1868). 

Change   by  vote   of  majority. 

Whether  a  change  in  a  corporate  charter 
can  be  made  otherwise  than  by  unanimous 
vote  of  the  stockholders  must  depend  upon 
the  facts  of  each  case;  the  original  powers  of 
the  corporation  and  the  proposed  change.  — 
Ireland    v.    Palestine,    etc.,    Turnpike    Co.,    19 


Oh.  St.  369  (1869)  ;  Marietta,  etc.,  I:.  I:.  I  ... 
v.  Elliott,  lit  Oh.  St.  57  i  1859)  ;  Milford,  etc., 
Turnpike  Co.  v.  Brush,  10  Oh.  Ill  (1840); 
Dayton,  etc.,  R.  R.  Co.  v.  Hatch.  ]  Disney,  84 
I  1855)  :  Baldwin  v.  Hillsborough,  etc.,  R.  R. 
Co.,  K)  W.  L.  J.  337  I  1853)  ;  Zabriskie  v. 
Cleveland,  etc.,  R.  R.  Co.,  23  How.  (U.  S.)  381 
(  L859). 

Stockholders   may  become   estopped. 

A  non-assenting  stockholder  may  become 
bound  by  bis  failure  to  resisl  an  action  of  the 
majority  in  accepting  an  amendment  and  l>y 
acquiescing  therein.  -Owen  \.  Purdy,  12  Oh. 
St.  73  (1861);  Goodin  v.  Evans,  Is  Oh.  St.  150 
(1868). 

Acquiescence  must  be  proved. 

The  acquiescence  of  a  stockholder  in  the  ac- 
tion of  the  majority  will  not  be  presumed, 
but  must  be  proved.  —  Ireland  v.  Palestine, 
etc.,  Turnpike   Co.,  supra. 

Corporation  acting   after   expiration   of 
charter. 

A  corporation  chartered  under  a  special 
statute  for  a  certain  number  of  years,  but 
which,  after  the  expiration  of  the  time  for 
which  it  was  so  chartered,  continues  to  exer- 
cise its  corporate  powers,  may  still  he  treated 
as  a  corporation.  —  Myers  v.  Lucas,  16  O.  C. 
C.  545  (1898)  ;  s.  c.  8  C.  D.  431.  See  note  to 
§  3235  on  real  estate  companies. 

Provision   as   to   insurance   companies. 

Under  the  provision  of  this  section  relating 
to  insurance  companies,   unless  a  corporation 

created  by  special  act  is  clearly  granted  ex- 
emption by  its  charter,  it  must  comply  with 
the  police  regulations  of  §  3654  and  §  3655.  — 
State  ex  rel.  v.  Eagle  Ins.  Co.,  50  Oh.  St.  2-V2 
(1893);  Eagle  Ins.  Co.  v.  State,  153  U.  S.  446 
(1894). 


§  3235.  FOR  WHAT  PURPOSES  CORPORATIONS  MAY  BE  FORMED;  SANI- 
TORIUM  COMPANIES,  REAL  ESTATE  COMPANIES.—  Corporations  may  be  formed 
in  the  manner  provided  in  this  chapter  for  any  purpose  for  which  individuals  may 
lawfully  associate  themselves,  except  for  carrying  on  professional  business;  but  noth- 
ing in  this  section  shall  prevent  the  formation  of  corporations  for  the  purpose  of 
erecting,  owning  and  conducting  sanitoriums  for  the  receiving  of  and  caring  for 
patients  and  for  the  medical,  surgical  and  hygienic  treatment  of  the  diseases  of  such 
patients,  and  for  instruction  of  nurses  in  the  treatment  of  diseases  and  in  hygiene; 
provided,  that  the  articles  of  incorporation  formed  for  the  purpose  of  buying  or 
selling  real  estate  shall  expire  by  limitation  in  twenty-five  years  from  the  date  of 
being  issued  by  the  secretary  of  state.  In  case  any  real  estate  owned  by  any  such 
corporation  is  not  sold  or  disposed  of  by  any  such  corporation  within  twenty-four 
years  from  the  date  of  [that]  their  respective  articles  of  incorporation  are  issued,  it 
shall  be  forthwith  the  duty  of  the  board  of  directors  of  such  corporation  to  institute 
action  against  the  corporation  and  owners  of  liens  upon  or  against  such  real  estate 
proposed  to  be  sold,  by  filing  a  petition  in  the  court  of  common  pleas  in  the  county 
where  such  real  estate  is  situated,  praying  for  a  sale  of  the  real  estate  in  the  peti- 


94 


Private  Corporations  in  Ohio. 


Corporate  Purposes,  §  3235. 


tion  described;  and  should  any  of  such  board  of  directors  refuse  to  direct  any  officer 
to  institute  action  as  hereinbefore  mentioned,  and  should  such  action  not  be  insti- 
tuted within  sixty  days  after  the  expiration  of  the  twenty-four  years  hereinbefore 
mentioned,  it  shall  be  the  duty  of  the  prosecuting  attorney  of  the  county  wherein 
such  real  estate  is  situated,  upon  the  expiration  of  said  sixty  days,  to  institute  such 
action.  Service  of  summons  upon  the  defendants,  appraisement  and  sale  of  such  real 
estate,  and  distribution  of  the  proceeds  of  the  sale  shall  be  made  as  provided  in 
actions  of  foreclosure  of  mortgages  and  marshaling  liens;  provided,  however,  the  court 
may  allow  the  plaintiff,  in  case  he  be  the  prosecuting  attorney,  a  just  and  proper 
attorney  fee  which  shall  be  taxed  with  the  costs  of  the  action.  (May  12,  1902,  95  v. 
623;  March  22,  1900,  94  v.  65;  April  6,  1894,  91  v.  126;  April  20,  1893,  90  v.  205; 
R.   S.   1880.) 


Insurance  companies. 

This  section  must  be  construed  as  not  au- 
thorizing the  incorporation  of  insurance  com- 
panies, as  the  organization  of  such  companies 
is  specially  provided  for  in  chapters  10  and  11 
of  title  2. —  State  v.  Pioneer  Live  Stock  Co., 
38  Oh.   St.   347    (1882). 

Agricultural  fair  company. 

A  company  may  be  organized  to  conduct  an 
agricultural  fair  for  profit  under  this  section. 

—  State  v.  Long,  48  Oh.  St.  509  (1891). 

What  corporations  are  for  profit. 

Corporations  for  profit  within  the  meaning 
of  the  statute  are  those  which  are  formed  for 
the  prosecution  of  business  enterprises  with  a 
view  to  realizing  gains  to  be  distributed  as 
dividends  among  the  shareholders  in  propor- 
tion to  their  contributions  to  the  capital 
stock. —  Snyder  v.  Chamber  of  Commerce,  53 
Oh.  St.  1,   11   (1895). 

Corporations   not   for  profit. 

It  seems  the  secretary  of  state  may  refuse 
to  file  the  articles  of  a  corporation  not  for 
profit  when  they  show  on  their  face  that  the 
company  is  for  profit. —  People  ex  rel.  v.  Rose, 
59  N.  E.   (111.)  432. 

Purposes  not  authorized. 

Under  statutes  similar  to  ours  it  has  been 

held  illegal  to  incorporate  for  the  purpose  of: 

Manufacturing    articles    infringing    patents. 

—  See  Clemshire  v.  Boone  Co.  Bank,  53  Ark 
512   (1890). 

Creating  a  lottery.— See  Peltz  v.  Supreme 
Chamber,  etc.,  19  Atl.  (N.  J.)  668  (1890): 
Le  Warne  v.  Meyer,  38  Fed.  191   (1889). 

Improperly   restraining   trade.- 
mond   Coal  Co.,   20    Phila.   251 
9  Pa.  Co.   Ct.   Rep.    172. 

Forming  a  military  company  of  foreigners, 
presumably  for  an  improper  purpose.—  Rus- 
sian American  Guards  Charter,  3  Pa.  Dist. 
673   (1893);  s.  c,  13  Pa.  Co.  Ct.  Rep.  148. 

Assisting  in  war  against  the  United  States. 

—  Chicora  Co.  v.  Crews,  6  S.  C.  243  (1874); 
United  States  v.  Insurance  Co.,  22  Wall.  (U. 
S.)  00  (1874);  Importing  Co.  v.  Locke,  50 
Ala.  332   (1876). 

Arranging  marriages  for  compensation. — 
Tn  re  Mutual  Aid  Ass'n,  15  Phila.  625  (1881) ; 
In  re  Helping  Hand  Ass'n,  15  Phila.  644 
(1881). 


—  In  re  Rich- 

(1893);    s.   c, 


Resisting  temperance  laws. —  Detroit,  etc.. 
Bund'  v.*  Detroit,  etc.,  Verein,  44  Mich.  313 
(1880). 

Manipulating  stocks  of  other  corporations 
and  thereby  creating  a  trust. —  People  ex  rel. 
v.  Gas  Trust,  130  111.  268   (1S89). 

Purchasing     franchises     of     corporations.—  - 
Opinion  of  Atty.-Gen'l  Watson,  24  W.  L.  B. 
269    (1890). 

Promoters    of    corporations,    duty,    lia- 
bility,  and  actions. 

Yeiser  v.  U.  S.  Board,  etc.,  Co.  (U.  S.  C. 
C.  A.),  12  0.  F.  D.  678  (1901);  Second  Nat. 
Bank  v.  Greenville,  etc.,  Post  Co.,  23  O.  C.  C. 

274   (1899). 

Secret  intent  of  incorporators. 

The  legality  of  the  purpose  of  the  incorpo- 
ration, so  far  as  the  filing  of  articles  and  the 
creation  of  tne  company  is  concerned,  can  only 
be  judged  by  the  statements  contained  in  the 
articles,  and  not  by  the  possibility  or  secret 
intention  of  illegal  user. —  See  State  ex  rel. 
v.  Taylor,  25  Oh.  St.  279  (1874);  Cronin  v. 
Potter's  Co-operative  Co.,  29  W.  L.  B.  52, 
p.  55    (1892). 

Discretion  of  secretary  of  state. 

The  discretion  to  be  exercised  by  the  secre- 
tary of  state  does  not  reach  to  the  merits  of 
an  application  for  articles  of  incorporation, 
although  it  may  be  exercised  as  to  matters  of 
form.  The  formation  of  corporations  in  this 
state  is  regulated  by  general  laws,  and  when 
the  proposed  incorporation  shows  compliance 
with  those  laws  it  is  entitled  to  articles  of 
incorporation;  if  it  fails  to  so  comply  the 
application  is  to  be  refused  upon  that  ground, 
and  that  is  sufficient. —  State  ex  rel.  v.  Tay- 
lor, 55  Oh.  St.  61    (1S96). 

Power  when  purpose  of,  clearly  illegal. 

It  seems  that  when  the  articles  show  prima 
facie  the  object  of  tne  proposed  company  to 
be  illegal,  the  secretary  of  state  would  have 
power  to  reluse  to  file  them;  as  where  the 
articles  show  the  purpose  to  be  bookmaking 
or  gambling  on  races. —  See  In  re  New  York 
Booking  Co.,  N.  Y.  L.  J.  Apr.  29   (1892). 

Wharf-boat  companies. 

Under  a  statute  permitting  corporations  to 
be  formed  for  the  purpose  of  building  and  re- 
pairing steamboats  and  other  water  craft,  a 


General  Corporation-  Law. 


95 


Corporate  Purposes,  §  3235. 


company  may  be  formed  to  build  nn<!  repair 
wharf  boats.  —  Gaff  v.  Flesher,  33  Oh.  St.  153 
(1878). 

Can  be  but  one  main  purpose. 

The  use  of  the  word  "  purpose  "  and  not 
"purposes"  implies  a  limitation.  A  corpora- 
tion may,  except  where  distinct  provision  is 
made,  be  organized  for  one  main  purpose  and 
no  more.  —  State  ex  rel.  v.  Taylor,  55  Oh.  St. 
01    (1890). 

Statute   commented  upon. 

Ehrman  v.  Union,  etc.,  Ins.  Co..  35  Oh.  St. 
324,  342  (1880)  ;  Larwell  v.  Hanover  Savings 
Fund  Society,  40  Oh.  St.  274,  282   (1883). 

Mutual    protection   asociations. 

Corporations  formed  under  §  3030  are  cor- 
porations not  for  profit  under  this  section.  — 
State  v.  Standard  Life  Ass'n,  38  Oh.  St.  281 
(1882). 

Real-estate  company  is  for  profit. 

Companies  incorporated  under  this  section 
for  the  purpose  of  dealing  in  real  estate  are 
necessarily  for  profit,  and  must  be  so  organ- 
ized. —  State  ex  rel.  v.  Home  Co-op.  LTnion, 
Sup.  Ct.  Dec.  1900. 

Expiration    of    charters    of    real-estate 
companies. 

Real  estate  companies  are  subject  to  a  limi- 
tation of  twenty-five  years'  existence,  at  the 
expiration  of  which  time  they  are  ipso  facto 
dissolved,  and  must  be  wound  up  according  to 
§  5075  et  seq.  —  People  v.  Anderson,  etc., 
Road  Co.,  70  Cal.  190  (1888);  La  Grange, 
etc.,  R.  Co.  v.  Rainey,  7  Colw.  (Tenn.)  420, 
432  (1870)  ;  Scanlan  v.  Crawshaw,  5  Mo.  App. 
337  (1878).  See  Mvers  v.  Lucas,  16  0.  C.  C. 
545  (1898)  ;  s.  c,  8  C.  D.  431. 

Sale  of  property  by  directors. 

The  directors  may  sell  all  property  without 
a  vote  of  the  stockholders,  even  if  made  three 
days  before  the  expiration  of  a  charter. — 
Stetson  v:  Bank,  12  Oh.  St.  577   (1801). 

Limit  on  amount  of  land. 

There  is  no  limit  on  the  amount  of  land  a 
real  estate  company  may  hold.  —  See  Market 
tSt.  Ry.  Co.  v.  Hellman,'l09  Cal.  571    (1895). 

(Leases  for  more  than  twenty-five  years. 

See    Beckett    Paper   Co.   v.    Hamilton,    etc., 
Hydraulic  Co.,  18  0.  C.  C.  200    (1898)  ;   s.  c, 
j 10  C.  D.  57. 

Power   of   corporations   to   deal  in   land 
;_     under  common  law. 

\  At  common  law  corporations  had  the  ca- 
pacity to  purchase  and  sell  lands  unless  re- 
strained by  statute.  —  See  Lessee  of  Overmeyer 
v.  Williams,  15  Oh.  31    (1840). 

Stock  in  corporation  not  for  profit. 

A  corporation  not  for  profit  may  have  a 
capital  stock  under  this  section.  —  Snyder  v. 
Chamber  of  Commerce,  53  Oh.  St.  1   (  1895  I . 


Agreement  for  preference. 

The  existing  stockholders  of  ■■>  corporation 
may,   for   the   purpose  of   inducing   ol  bei  -    to 

subscribe  to  tin'  unissued  stock,  agree  thai  the 
new  subscribers  shall  be  paid  a  stipulated  an- 
nual dh  idend,  out  of  I  In-  net  earnings  of  i  be 
corporation,  before  any  dividends  are  paid  to 
stockholders  then  existing.  —  Painesville  Nat. 
Bank  \.  King  Varnish  Co.,  8  0.  C.  <  .  563 
(1894)  j  s.  c.,'4  C.  D.  511. 

Preferred  stock  may  be  made  a  lien  on 

property. 

In  the  absence  of  a  statute  to  the  contrary, 
a  corporation  may  issue  preferred  stock  which 
shall  he  a  lien  on  its  property  aid  earnings 
second  only  to  existing  mortgages  and  en1  it  led 
to  preference  as  to  capital  and  profits.  —  Ham- 
lin v.  Toledo,  etc.,  P.  P.  Co.,  78  I'd.  tail 
(1897)  ;  Continental  Trust  Co.  v.  Toledo,  etc. 
R.  R.  Co.,  so  Fed.  929  |  L898)  ;  Toledo,  etc., 
R.  R.  Co.  v.  Continental  Trust  Co..  95  Fed. 
497  (1899).  See  Continental  Trust  Co.  v. 
Toledo,  etc.,  R.  R.  Co.,  72  Fed.  92  ( 1896  | . 

Construction    of    issue    of    stock    having 
characteristics  of  loan. 

An  issue  of  preferred  stock  will  be  construed 
to  be  what  it  purports  and  was  intended  to  be, 
if  possible,  even  though  the  stockholders  are 
deprived  of  the  right  to  vote,  and  have  their 
dividends  guaranteed  and  secured  by  a  mort- 
gage. —  Miller  v.  Ratterman,  47  Oh.  St.  141 
(1890)  ;  s.  c,  22  W.  L.  B.  99  (1889)  ;  Ryan  v. 
Miami,  etc..  Ry.  Co.,  10  A.  L.  R.  20.'!  (1881  i. 
See  Hamlin  v.  Toledo,  etc.,  R.  R.  Co.,  78  Fed. 
664   (1897). 

Preferred    stock   when    construed    to    be 
loan. 

An  apparent  issue  of  preferred  stock  will 
be  construed  to  be  a  loan,  if  the  statute  au- 
thorizing the  issue  would  otherwise  lie  uncon- 
stitutional as  violating  the  special  liability 
clause  of  the  constitution.  —  Burt  v.  Rattle, 
31  Oh.  St.  116   (1876). 

Preferred   stock  without  voting  power. 

The  right  to  vote  preferred  stock  may  be 
withheld.  —  Miller  v.  Ratterman,  supra  :  Ryan 
v.  Miami,  etc.,  Ry.  Co.,  supra. 

Security     for     dividends     on     preferred 

stock. 

A  mortgage  civen  to  secure  the  payment  of 
dividends  on  preferred  stock  is  subject  to  the 
condition  that  dividends  must  be  earned, 
although  such  condition  may  be  apparently 
inconsistent  with  the  mortgage.  —  Miller  v. 
Ratterman,  supra;  Warren  v.  King,  108  I'.  S. 
389   (1883). 

Preferred     stock,     other     sections     with 
reference  to. 

See  §§  3203,  3309,  3309b. 

Guaranty     of     dividends     on     preferred 
stock. 

A  guaranty  of  dividends  on  preferred  stock 
is  nothing  more  than  a  guaranty  of  payment 


96 


Private  Corporations  in  Ohio. 


Stock  —  Articles  of  Incorporation,   §§  3235a,  3236. 


if    dividends    are    earned, 
man,  supra. 


Miller    v.    Ratter- 


Enforcement   of   rights    of   one    class   of 
stockholders  against  others. 

See  Port  Clinton  R.  R.  Co.  v.  Cleveland, 
etc.,  R.  R.  Co.,  13  Oh.  St.  544  (1862). 

Endowment  stock. 

See  Bryant  v.  Ohio  College,  etc.,  1  C.  S.  C. 
67.  307  '(1871).  Contra,  Ohio  College  v. 
Rosenthal,  45  Oh.  St.  183   (1887). 

Contracts   to   form   corporations. 

A  provision  of  a  preliminary  agreement  to 
form  a  corporation  which  is  in  conflict  with 
the  certificate  of  incorporation  or  charter  ob- 
tained is  deemed  waived  and  abandoned  by  all 
parties  who  accept  such  charter  and  organize 
under    it;    such    preliminary    contract    being 


merged  into  the  statutory  contract  or  charter. 
—  Cronin  v.  Potter's  Co-op.  Co.,  29  W.  L.  B. 
52,  56  (1892). 

Contracts  to  form  corporations. 

Where  one,  who  is  the  owner  of  certain 
property,  enters  into  a  contract  with  a  number 
of  others  whereby  the  parties  agree  to  form  a 
corporation  to  take  over  and  operate  the  prop- 
erty, and  the  owner  agrees  to  sell  his  property 
at  a  stated  price,  and  take  his  pay  therefor 
partly  in  cash  and  partly  in  stock  of  the  cor- 
poration to  be  formed,  and  the  property  is 
thereupon  turned  over  to  the  parties  to  the 
contract,  who  operate  it,  but  abandon  the 
effort  to  form  the  corporation,  the  contract 
will  be  treated  not  as  one  between  the  vendor 
and  a  corporation  not  formed,  but  between 
the  individuals  who  entered  into  it. —  Mosier 
v.  Parry,  60  Oh.  St.  388  (1899). 


§  3235a.  CORPORATION  MAY  HAVE  COMMON  AND  PREFERRED  STOCK. 
—  if  the  organization  is  for  profit,  it  must  have  a  capital  stock.  Such  stock  may  con- 
sist of  common  and  preferred,  or  of  common  only,  but  at  no  time  shall  the  amount  of 
preferred  stock  exceed  two-thirds  of  the  actual  capital  paid  in  in  cash  or  property; 
and  if  both  common  and  preferred  it  may  be  provided  in  the  articles  of  incorpora- 
tion that  the  holders  of  the  preferred  stock  shall  be  entitled  to  dividends  not  exceed- 
ing eight  per  cent,  per  annum,  payable  quarterly,  half  yearly,  or  yearly,  out  of  the 
surplus  profits  of  the  company  each  year  in  preference  to  all  other  stockholders,  and 
such  dividends  may  be  made  cumulative.  Every  corporation  issuing  both  common 
and  preferred  stock  may  create  such  designations,  preferences,  and  voting  powers, 
or  restriction  or  qualification  thereof,  as  shall  be  stated  and  expressed  in  the  cer- 
tificate of  incorporation,  and  such  preferred  stock  may,  if  desired,  be  made  subject 
to  redemption  at  not  less  than  par,  at  a  fixed  time  and  price,  to  be  expressed  in  stock 
certificate  thereof.  In  case  of  the  insolvency  of  the  corporation  no  holder  of  pre- 
ferred stock  shall  be  liable  for  the  debts  of  the  corporation  until  after  the  remedy 
against  the  common  stockholders  upon  their  double  liability,  as  provided  by  law, 
shall  have  been  pursued  and  exhausted,  and  then  only  for  such  amount  as  remains 
unpaid;  but  such  liability  shall  in  no  event  exceed  the  liability  fixed  by  law  for  the 
common  stock  of  such  corporation.  In  case  of  the  insolvency  or  dissolution  of  the 
corporation,  the  holders  of  the  preferred  stock  shall  be  entitled  to  receive  from  the 
assets  remaining  after  paying  its  debts  and  liabilities,  the  full  payment  of  the  par 
value  of  the  stock,  before  anything  is  paid  to  the  common  stock.  (May  12,  1902, 
95  v.  623.) 


$  3236.  ARTICLES  OF  INCORPORATION;  WHAT  TO  CONTAIN.— Any  num- 
ber of  persons,  not  less  than  five,  a  majority  of  whom  are  citizens  of  this  state,  desir- 
ing to  become  incorporated,  shall  subscribe  and  acknowledge,  before  an  officer 
authorized  to  take  acknowledgments  of  deeds,  articles  of  incorporation,  the  form  of 
which  shall  be  prescribed  by  the  secretary  of  state,  which  must  contain: 

1.  The  name  of  the  corporation,  which  shall  begin  with  the  word  "  The  "  and  end 
with  the  word  "  Company,"  unless  the  organization  is  not  for  profit. 

2.  The  place  where  it  is  to  be  located,  or  where  its  principal  business  is  to  be 
transacted. 

3.  The  purpose  for  which  it  is  formed. 

4.  The  amount  of  its  capital  stock,  if  it  is  to  have  capital  stock,  and  the  number 
Of  shares  into  which  the  stock  is  divided. 

5.  Provided,  any  association  of  five  or  more  persons,  who  are  residents  of  the 


General  Corporation  Law. 


97 


Articles  of  Incorporation,   §  3236. 


state  of  Ohio,  and  who  are  associated,  not  for  profit,  and  as  the  principal  or  ruling 
organization  over  subordinate  organizations,  associated,  not  for  profit,  and  having  a 
definite  location  or  place  of  business  in  the  state  of  Ohio,  may  be  incorporated,  having 
its  location  or  principal  place  of  business  in  the  state  of  Ohio,  and  without  naming, 
in  its  articles  of  incorporation,  a  permanent  place  where  it  is  to  be  located,  or  where 
its  principal  business  is  to  be  transacted.  But  such  association  must  name,  in  its 
articles  of  incorporation,  the  place  where  it  is  to  be  located,  or  where  its  principal 
business  is  to  be  transacted,  at  the  time  of  its  incorporation,  with  the  name  and  place 
of  residence  of  its  then  principal  officers.  And  when  such  association  changes  its 
place  where  located,  or  the  place  where  its  principal  business  is  transacted,  it  shall 
be  the  duty  of  its  principal  officer,  under  its  seal,  if  it  has  one,  countersigned  by  the 
officer  acting  as  secretary  of  such  association,  to  certify  to  the  secretary  of  state  of 
Ohio,  the  place  then  selected  by  such  association,  as  its  location,  or  where  its  princi- 
pal business  is  to  be  transacted,  with  the  name  of  its  principal  officers,  and  their  places 
of  residence,  which  certificate  the  secretary  of  state  shall  record  for  public  use  in  the 
records  of  his  office.  (April  10,  1889,  86  v.  224;  April  16,  1885,  82  v.  134;  Rev. 
Stat.   1880.) 


Articles  must  substantially  comply  with 
law. 

Mere  irregularities  in  organizing  under  a 
charter  will  not  deprive  the  officers  and  stock- 
holders of  the  corporation  of  its  benefit,  but 
on  the  other  hand  the  provisions  of  the  act  of 
incorporation  must  be  substantially  complied 
with.  The  filing  of  articles  of  incorporation 
substantially  complying  with  the  law  is  a  con- 
dition precedent  to  corporate  existence. — 
Trust  Co.  v.  Floyd,  47  Oh.  St.  525,  541 
(1890);  Bartholomew  v.  Bentley,  1  Oh.  St.  37 
(1852).  See  Nugent  v.  Cincinnati,  etc.,  R.  R. 
Co.,  2  Dis.  302.  304  (1858);  Harris  v.  Mc- 
Gregor, 29  Cal.  124  (1865)  ;  State  v.  Beck,  81 
Ind.  500,  506  (1882);  Hughes  v.  Antietam 
Mfg.  Co.,  34  Md.  316,  324  (1870);  Rogers  v. 
Danby  Society,  19  Vt.  187   (1847). 

Articles  should  be  signed  and  acknowl- 
edged in  this  state. 

It  is  a  well-settled  rule  of  law  that  the  ac- 
ceptance of  a  charter  and  the  organization  of 
the  corporation  must  occur  in  the  state  creat- 
ing it. —  See  Myers  v.  Manhattan  Bank,  20 
Oh.  283  (1851):'  Smith  v.  Silver,  etc.,  Co.,  64 
Md.  85  (1885)  ;  Freeman  v.  Machias,  etc.,  Co., 
38  Me.  343  (1854)  ;  Heath  v.  Silverthorn,  etc., 
Co.,  39  Wis.  146   (1875). 

"What    officers    authorized    to    take    ac- 
knowledgments. 

Notaries  Public,  §  118,  §  4106:  Probate 
Judges,  §  526.  §  4106:  Justices  of  the  Peace, 
§  583,  §  4106;  Police  Judges.  §  1787:  County 
Survevors,  §  1175,  §  4106:  County  Auditors. 
§  4106,  §  1019;  Mavors,  §  4106;  Judges  and 
Clerks  of  Courts  of 'Record,  §   1247,  §  4106. 

Acknowledgment  under  the  old  law. 

See  State  ex  rel.  v.  Leo,  21  Oh.  St.  662 
(1871):  Spinning  v.  Home  Ass'n.  26  Oh.  St. 
483  (1875):  Warner  v.  Callender,  20  Oh.  St. 
190  (1870):  Lucas  v.  Building  Ass'n,  22  Oh. 
St.  339  (1872):  Griffin  v.  Clinton,  etc..  R.  R. 
Co.,  1  W.  L.  M.  31  (1859)  ;  Clarke  v.  Thomas, 
LAW   GOV.    PRIV.    COR.  — 7- 


34  Oh.  St.  46,  59  (1877);  Hagerman  v.  Build- 
ing Ass'n,  25  Oh.  St.  186,  200   (1874). 

Absence  of  acknowledgment. 

A  total  want  of  acknowledgment  will  render 
the  articles  void. —  Doyle  v.  Mizner,  42  Mich. 
332    (1879). 

Signing    and     acknowledgment    of     ar- 
ticles. 

Articles  of  incorporation  must  be  signed  and 
acknowledged  in  due  form. —  Insurance  Co.  v. 
Cram,  43  N.  H.  636  (1862):  Kaiser  v.  Law- 
rence Bank,  56  la.  104  (1881);  Indianapolis 
Furnace  Co.  v.  Herkimer,  46  Ind.  142   (1874). 

At    least   five    must    sign   and    acknowl- 
edge. 

Although  more  than  five  persons  or  cor- 
porators may  sign  and  acknowledge  the  arti- 
cles, there  must  be  at  least  five  or  they  will 
be  void. —  State  ex  rel.  v.  Critchett.  37  Minn. 
13  (1887);  People  v.  Montecito  Water  Co.,  97 
Cal.  276  (1893).  See  Lorillard  v.  Clyde,  86 
N.   Y.   384    (1881). 

Signing  by  initials. 

Articles  may  be  signed  by  initials  instead  of 
the  full  pramomen. —  State  ex  rel.  v.  Beck,  81 
Ind.  500    (1882). 

Signing  blank  or  incomplete  articles. 

The  articles  must  be  complete  before  the 
signing  thereof,  and  if  signed  while  blank,  and 
subject  to  future  agreement,  they  will  not  be 
binding  upon  the  corporators,  disaffirmance 
being  made  in  due  time.  Each  corporator's 
assent  to  each  statement  in  the  articles  is 
essential. —  Dutchess  R.  R.  Co.  v.  Mabbett,  58 
X.  Y.  397  (1874);  Richmond  R.  R.  Co.  v. 
Reed,  83  Ind.  9   (1882). 

Designation  of  principal  place. 

The  failure  to  describe  the  place  designated 
as  the  principal  place  of  business  is  imma- 
terial. —  In  re  Spring  Yallev  Water  Works. 
17   Cal.   132    (1860). 


98 


Private  Corporations  in  Ohio. 


Articles  of  Incorporation,  §  3236. 


Designation  of  place  of  business  is  con- 
clusive. 

The  designation  of  a  principal  place  of  busi- 
ness is  conclusive  as  to  the  location  of  such 
office,  and  is  not  in  any  way  determined  by  the 
proportion  of  business  done  there.  The  place 
so  fixed  is  the  situs  of  the  company  for  the 
purpose  of  taxation,  commencing  suits,  etc. — ■ 
Pelton  v.  'Transportation  Co.,  37  uh.  St.  450 
(1882);  Mercantile  Trust  Co.  v.  .Etna  Iron 
Works,  4  0.  C.  C.  579.  585  (1890);  s.  c.  2  C. 
D.  71S.  722.  See  Pomeroy  Salt  Co.  v.  Davis, 
21  Oh.  St.  555  (1871);  Blumenthal  v.  Hudson 
River  Co..  15  N.  Y.  Supp.  826  (1891);  Booth 
v.  Wondevly,  36  N.  J.  L.  250  (1873);  Roth- 
child  v.  Dithridge  Co.,  20  N.  Y.  Supp.  373 
(1892). 

Place     of    business    for    attachment    in 
justice   court. 

A  corporation  may  be  attached  in  a  justice 
court  in  any  county  other  than  that  of  its 
principal  place  of  business.—  Champion  Ma- 
chine Co.  v.  Huston,  24  Oh.  St.  503  (1874). 
See  Boley  v.  Ohio,  etc.,  Trust  Co.,  12  Oh.  St. 
139   (1867). 

Change  of  place  of  business. 

A  corporation  may  change  its  principal 
place  of  business  so  long  as  it  keeps  within 
the  limits  of  the  designated  place,  otherwise  a 
change  cannot  be  made  except  by  amendment 
of  its  articles. —  Pelton  v.  Transportation  Co., 
supra;  Mercantile  Trust  Co.  v.  .Etna  Iron 
Works,  supra.  See  Booth  v.  Wonderly,  supra. 
See  §  3855  and  §  3238a,  §  3311  and  §  33S5. 

Statement  of  capital   stock. 

The  amount  and  division  of  the  capital 
stock,  if  the  company  is  to  have  a  capital 
stock,  must  be  clearly  stated;  but  articles  will 
not  be  invalidated  by  a  clerical  error  in  the 
statement  of  the  number  or  amount  of  the 
shares  if  the  amount  of  the  capital  stock  is 
correctly  stated.—  Hushes  v.  Antietam  Mfg. 
Co.,  34  Md.  316  (1870). 

Purpose    must   be    clearly    stated. 

The  purpose  for  which  a  company  is  formed 
must  be  stated  with  clearness.  The  statute 
requires  the  specification  of  the  business,  and 
it  is  not  a  compliance  with  the  law  to  state 
that  the  company  is  formed  to  do  any  business 
it  may  find  profitable.—  In  re  Crown  Bank, 
L.  R.'44  Ch.  Div.  634  (1890).  See  State  ex 
rel.  v.  Central,  etc.,  Ass'n,  29  Oh.  St.  399 
(1876). 

One  main  purpose. 

Only  the  one  main  purpose  may  be  stated  as 
a  corporation  cannot  be  organized  for  two  or 
more  purposes. — State  ex  rel.  v.  Taylor,  55  Oh. 
St.  61   (1896). 

Effect    of    claiming    more    than    law    al- 
lows. 

If  more  is  claimed  in  the  articles  than  the 
law  allows,  the  articles  are  only  affected  pro 
tanto.—  Toledo,  etc.,  Ry.  Co.  v.  Toledo  Elec- 
tric  Co.,  6  0.  C.  C.  362,  391  (1892);  s.  c,  3  C. 
D.  493,  507. 


Provisions  not  responsive  to  law. 

Any  provision  in  the  articles  not  responsive 
to  some  specification  of  general  law  is  a  nu.l- 
ity.— O'Brien  v.  Cummings,  13  Mo.  App.  197 
(1S83)  :  People  v.  Chicago  Gas  Trust,  130  111. 
268  (1889). 

Incidental  powers  not  to  be  stated. 

It  is  improper  to  state  under  the  head  of  the 
purposes  of  the  company  all  the  incidental 
powers,  such  as  it  would  necessarily  have  by 
general  law. —  People  ex  rel.  v.  Peabody.  130 
111.  26S  (1889);  Wendell  v.  State,  02'  Wis. 
300  (1885):  In  re  McCrurg  Gas  Co.,  4  Pa. 
Dist.   Rep.   349    (1S95). 

Mistake  in  articles  —  reformation. 

The  articles  of  incorporation  constitute  the 
charter,  or  part  of  it.  granted  by  the  state, 
and  the  provisions  contained  therein  cannot 
be  changed,  added  to,  or  detracted  from  by  a 
court  because  of  a  mistake. —  Cronin  v.  Pot- 
ter's Co-op.  Co.,  29  W.  L.  B.  52    (1892). 

Articles   not   in   conformity  with  law. 

Articles  not  in  strict  conformity  with  law 
by  reason  of  defects,  omissions,  etc.,  may  be 
corrected  under  §  5867  et  seq. 

Previous  agreements  merged  in  articles. 

Where  the  corporators  of  a  company  exe- 
cute articles  of  incorporation  they  abandon 
and  waive  all  provisions  of  previous  contracts 
to  form  the  corporation  which  are  in  conflict 
with  the  article  as  drawn. —  Cronin  v.  Pot- 
ter's Co-op.  Co.,  29   \V.  L.  B.  52,  56   (1892). 

Secret  intention  of  corporators. 

The  articles  are  not  vitiated  by  a  secret 
intention  on  the  part  of  the  corporators  to  do 
business  in  a  foreign  state. —  State  ex  rel.  v. 
Taylor,  25  Oh.   St.^279    (1874). 

When  a  corporation  de  facto   exists. 

Where  an  attempt  is  made  by  colorable  pro- 
ceedings which  are  followed  by  bona  fide  user, 
a  corporation  de  facto  exists,  and  its  capacity 
can  only  be  challenged  bv  the  state. —  Society 
Perun  v.  Cleveland,  43  "Oh.  St.  481  (1885). 
See  Griffin  v.  Clinton,  etc..  R.  R.  Co.,  3  0.  F. 
D.  441  (1858)  ;  s.  c,  1  Mo.  (U.  S.)  31. 

No  de  facto  existence  without  articles  of  in- 
corporation.—Abbott  v.  Omaha  Smelting  Co., 
4  Neb.  416  (1876)  ;  Capps  v.  Hastings  Co.,  40 
Neb.  470  (1894)  ;  Utely  v.  Union  Tool  Co.,  11 
Gray    (Mass.)    139    (1858). 

Proof  of  de  facto  existence. 

The  de  facto  existence  of  a  corporation  may 
be  proved  by  evidence  of  attempted  and  color- 
able incorporation  followed  by  bona  fide  user, 
even  as  against  a  party  not  estopped  to  deny 
its  corporate  existence. —  Society  Perun  v. 
Cleveland,    supra. 

Possibility   of    de   jure    existence    is    es- 
sential to  de  facto  existence. 

There  must  be  authority  in  law  for  the  pro- 
ceedings, that  is,  there  must  be  a  law  author- 


General  Corporation  Law. 


99 


Articles  of  Incorporation,   §  3237. 


izing  the  formation  of  corporations  to  exer- 
cise such  powers  as  the  de  facto  company 
claims.— Gaff  v.  Flesher,  33  Oh.  St.  L07 
(1877);    Racoon  River  Nav.   Co.   \.    Eagle,  29 

Oh.  St.  238  (1876);  Society  lVrun  v.  <  leve- 
land,  supra. 

Want       of       legal       organization  —  how 
pleaded. 

See  Methodist  Church  v.  Wood,  5  Oh.  283 
(1831)  ;  Lewis  v.  Hank,  12  Oh.  132,  1 48  (1843); 
Brady  v.  National  Supply  Co.,  45  W.  L.  B. 
176  (1901). 

A   party   dealing   ■with,   a   corporation   is 
estopped    to    deny    its    existence. 

Second  Nat.  Bank  v.  Hall,  35  Oh.  St.  158 
(1878);  Lattimer  v.  Mosaic  Glass  Co.,  13  O. 
('.  C.  163  (1896);  s.  c,  7  C.  D.  430;  llatry  V. 
Painesville,  etc.,  Ry.  Co.,  1  O.  C.  C.  426 
(1886);  s.  c,  1  C.  D.  238;  Beebe  v.  Thomas. 
2  W.  L.  B.  107  (1877);  Continental  Trust  Co. 
v.  Toledo,  etc.,  R.  R.  Co.,  82  Fed.  642   (1897). 

A  debtor  of  a  corporation  cannot  deny 
its  existence, 

Peckham  Iron  Co.  v.  Harper,  41  Oh.  St.  100 
(1884):  Newburg,  etc.,  Co.  v.  Weave.  27  Oh. 
St.  343  (1875);  Hagerman  v.  Ohio  Building 
Ass'n,  25  Oh.  St.  186,  200  (1874);  Lucas  v. 
Greenville  Ass'n,  22  Oh.  St.  330  (1872):  Re- 
ceivers v.  Renick,  15  Oh.  322  (1846);  Durrell 
v.  Belding,  9  O.  C.  C.  74  (1894)  ;  s.  c,  4  C.  D. 
263;  Elektron  Mfg.  Co.  v.  Jones  Bros.  Co.,  8 
O.  C.  C.  311  (1894). 

The  corporation  is  estopped  to  deny  its 
legal  existence. 

Callender  v.  Painesville,  etc.,  R.  R.  Co., 
supra. 

§  3237.  WHAT  ARTICLES  MUST  STATE  IN  CERTAIN  CASES.— When  the 
organization  is  for  a  purpose  which  includes  the  construction  of  an  improvement 
which  is  not  to  be  located  at  a  single  place,  the  articles  of  incorporation  must  also 
set  forth: 

1.  The  kind  of  improvement  intended  to  be  constructed. 

2.  The  termini  of  the  improvement,  and  the  counties  in  or  through  which  it  or 
its  branches  shall  pass.     (R.   S.   1880.) 

hereafter  designated  in  the  township  of  Hud- 
son,  in  the  County  of  Summit,  passing  through 
the  County  of  Portage  or  Cuyahoga,  also 
through  the  Counties  of  Geauga  and  Lake  to 
terminate  at  some  point  to  be  designated  in 
the  township  of  Painesville.  in  the  County  of 
Lake."— Callender  v.  Painesville.  etc..  R*  R 
Co.,  11  Oh.  St.  516   (1860). 


Stockholders  are  estopped  to  question 
the  existence  of  the  corporation  col- 
laterally. 

Clarke  v.  Thomas,  34  Oh.  St.  h;.  59  (  1877) ; 
Call   v.    Flesher,  33  Oh.  St.    L07,    1 13    I  L877)  ; 
Callender   v.    Painesville,   etc.,    |;.    R.    (  ,,  .    n 
Oh.  St.  516   ( L860)  ;   \  oorhees  v.  Bank,  19  Oh. 
463    (1850);    Trumbull    Count  v.    etc.,    Co.    v 
Horner.  17  Oh.   in;  |  isisi  ,  Second,  etc.,  Bank 
v.  Lovell.  2  c.  S.  c.  397   (1873);   Benninger  v. 
Call,   1   c.  S.  C.  331    <  L871  i  :    Ryan   \.  Miami 
etc.,  Ry.  Co.,   L0  A.   L.   R.  263    I  L881  I  ;    Mans- 
field   v.    Woods,    29    W.     I,.    B.    in    m 
Farmers',  etc.,  Trusl    Co.  v.  Toledo,  etc.,   Ry 
Co.,  07   Fed.  49'  (1895);   s.  c.,  9  0.   F.   1).  230. 
See  Racoon  River  Nav.  Co.   v.  Eagle,  29   Oh 
St.  238  (1876). 

Existence  of  company  attempting  to 
condemn    land 

A  company  attempting  to  exercise  the  power 
of  eminent  domain  musl  prove  it-  legal  exist- 
ence, and  the  owner  of  land  sought  to  be  Con 
demned  may  attack  such  existence. — Atlantic, 
etc.,  R.  R.  Co.  v.  Sullivant,  5  Oh.  St.  276 
(1855);  Atkinson  v.  Marietta,  etc.,  R.  R.  Co., 
15  Oh.   St.  21    (1864). 

Retroactive  effect  of  ouster. 

A  judgment  of  ouster  against  a  corporation 
adjudging  it  not  to  be  a  de  jure  corporation 
can  have  no  retroactive  effect  upon  the  rights 
of  the  corporation,  and  of  parties  who  dealt 
with  it  during  its  de  facto  existence,  and 
stockholders  do  not  become  liable  as  partners. 
—  Society  Perun  v.  Cleveland,  supra:  Row- 
land v.  Meader  Furn.  Co.,  38  Oh  St  271 
(1882). 

For  Forms  of  Articles  of  Incorporation.  >ee 
Appendix. 


Validity    of    designation    "  in    or    near." 

Articles  of  incorporation  are  not  invalid 
because  the  terminus  of  the  proposed  improve- 
ment is  designated  as  "  in  or  near  the  town  of 
Lima,  Allen  County,  State  of  Ohio,  at  a 
point  on  the  Cleveland  and  St.  Louis  Rail- 
road:" for  the  words  "in  or  near"  are  suffi- 
ciently definite  for  such  purpose,  meaning 
substantially  "in."  They  authorized  the 
building  of  no  road  not  substantially  in  the 
town  named. —  Warner  v.  Callender."  20  Oh. 
St.  190  (1S70)  :  Central  R.  R.  Co.  v.  Penn.  R. 
R.  Co.,  31  N.  J.  Eq.  475    (1879). 

Statement  of  county  sufficient. 

Articles  of  incorporation  are  not  void  for 
want  of  certainty  whore  they  provide  that  the 
road   shall  "  commence  at   some   point   to   be 


Only  reasonable  certainty  renuired. 

The  rule  only  requires  reasonable  certainty, 
and  the  description  of  the  termini  and  course 
may  1...  somewhat  indefinite  in  the  articles  of 
incorporation,  if  defined  by  location.  The 
location  must  be  made  with  reasonable  com- 
pliance with  the  description  in  the  artii  : 
incorporation.  To  require  a  greater  degri 
certainty   in   the    articles   of   incorporation   to 


100 


Private  Corporations  in  Ohio. 


Articles  of  Incorporation,  §  3238. 


ensure  validity  would  necessarily  defeat  the 
object  of  the  statute  in  many,  if  not  most, 
cases.  Reasonable  latitude  must  be  allowed, 
for  it  is  by  force  of  such  description  that  a 
company  may  send  its  engineers  upon  the 
lands  of  others  to  locate  the  route  definitely. 
—  See  Callender  v.  Painesville,  etc.,  R.  R.  Co., 
supra :  Cleveland,  etc.,  R.  R.  Co.  v.  Prentice, 
13  Oh.  St.  373,  379   (1862). 

Route  stated  in  alternative. 

Contiguous  counties  may  be  named  in  the 
alternative  and  the  terminus  may  be  an 
undesignated  point  in  a  township.  The  suffi- 
ciency of  the  description  depends  on  the  cir- 
cumstances of  each  case. —  See  Callender  v. 
Painesville  R.  R.  Co.,  supra. 

What  description  too  uncertain. 

The  description  of  the  termini  and  course 
of  a  road  "  from  a  point  on  the  Ohio  and 
Pennsylvania  State  line  in  the  County  of 
Trumbull,  in  said  State  of  Ohio,  to  a  point  on 
the  Ohio  River  in  same  State  in  the  County  of 
Brown  or  Adams,"  has  been  held  too  uncer- 
tain to  support  condemnation  proceedings. — 
Atlantic,  etc.,  R.  R.  Co.  v.  Sullivant,  5  Oh.  St. 
270   (1855). 

Route  may  be  partially  in  foreign  state. 

Where  the  termini  are  in  the  state,  the  arti- 
cles are  not  invalid  because  the  described 
route  takes  in  part  of  a  foreign  state. —  Pied- 
mont, etc.,  Ry.  Co.  v.  Speelman,  67   Md.  260 

(1887). 

Indefinite    descriptions  —  how    cured. 

Indefiniteness  of  descriptions  in  articles  of 
incorporation  may  be  cured  by  legislative 
recognition  or  by  actual  location,  construction 
and  operation. —  Cayuga  R.  R.  Co.  v.  Kyle,  5 
Thomp.  &  C,   (N.  Y.)    659   (1875). 

Belt  roads. 

The  required  statement  of  termini  and 
course  does  not  preclude  the  building  of  a  cir- 
cular or  belt  road,  nor  a  road  located  in  but 
one  county. —  State  v.  Marvin,  51  Kan.  462 
(1893). 

A  whole  road  may  he  located  in  a  single 
city. 

Long  Branch  Com'rs  v.  West  Line  R.  R. 
Co.,  29  X.  J.  Eq.  566  (1878);  National  Docks 
R.  R.  Co.  v.  Central  R.  R.  Co.,  32  N.  J.  Eq. 
755   (1880). 


Description  "  from." 

A  description  "  from  "  a  city  or  other  point 
includes  any  point  in  such  city.— See  §  3270; 
Colorado,  etc.,  Ry.  Co.  v.  Union  Pac.  Ry.  Co., 
41  Fed.  Rep.  293  (1890);  Comm.  v.  Erie 
etc..  R.  R.  Co.,  27  Pa.  St.  339,  352  (1856); 
(  hit-ago,  etc.,  Ry.  Co.  v.  Chicago,  etc.,  Ry. 
Co.,  112  111.  589^(1884);  St.  Louis,  etc.,  Ry. 
Co.  v.  Hannibal,  etc.,  Co.,  28  S.  W.  Rep.  (Mo!) 
483  (1894).  Contra.  Northeastern  R.  R.  Co. 
v.   Payne.  8  Rich.  L.    (S.  C.)   117    (1855). 

Description  "  to." 

A  description  "  to  "  a  certain  place  is  in- 
clusive.—See  §  3270;  Rio  Grande  R.  R.  Co. 
v.  Brownsville,  45  Tex.  88  (1876);  Mason  v. 
Brooklyn,  etc.,  R.  R.  Co.,  35  Barb.  (N.  Y.) 
373  (1861).  See  Hatrv  v.  Painesville,  etc., 
Ry.  Co..  1  O.  C.  C.  426,  433  (1S86);  s.  c,  1 
C.  D.  238,  242. 

Description  "  at." 

A  description  "  at  "  a  certain  town  is  in- 
clusive.—  See  §  3270 :  Mohawk  Bridge  Co.  v. 
Utica,  etc.,  R.  R.  Co.,  6  Paige  Cm   (N.  Y.)  554 

(1837). 

Description  "  between." 

A  description  "  between  "  certain  points  is 
inclusive. —  Morris,  etc.,  R.  R.  Co.  v.  Central, 
etc.,  R.  R.  Co.,  31  N.  J.  L.  205    (1865). 

What  description  sufficient. 

Articles  of  association  of  a  road  corporation 
describe  the  termini  of  the  projected  road  with 
sufficient  certainty  when  the  description  can 
be  rendered  certain,  as  where  the  road  is  made 
to  start  at  a  point  definitely  described  to  run 
specified  courses  and  distances  to  an  end,  the 
whole  length  of  road  being  given. —  Miller  v. 
Wild  Cat  Gravel  Road  Co.,  52  Ind.  51   (1875). 

Statute    of   limitations    —  effect. 

Where  the  articles  of  incorporation  of  a 
railroad  company  are  defective  in  not  specify- 
ing with  sufficient  certainty  the  terminus  of 
the  road,  but  are  properly  filed  in  the  office  of 
the  secretary  of  state,  such  filing  is  notice 
to  the  state  of  such  defect,  and  if  the  state 
neglects  for  five  years  (§  6789,  Ohio  R.  S.)  to 
take  advantage  thereof  by  quo  warranto  or 
otherwise  the  right  is  lost. —  State  v.  Bailey, 
19  Ind.  452  (1862). 

For  articles  of  incorporation  of  railroad 
company,  see  Appendix. 


§  3238.  ARTICLES  CERTIFIED,  FILED  WITH  SECRETARY  OF  STATE,  AS 
TO  SAME  OR  SIMILAR  NAME.—  The  official  character  of  the  officer  before  whom 
the  acknowledgment  of  articles  of  incorporation  is  made  shall  be  certified  by  the 
clerk  of  the  court  of  common  pleas  of  the  county  in  which  the  acknowledgment  is 
taken,  and  the  articles  shall  be  filed  in  the  office  of  the  secretary  of  state,  who  shall 
record  the  same,  and  a  copy  duly  certified  by  him  shall  be  prima  facie  evidence  of  the 
existence  of  such  corporation,  and  all  certificates  thereafter  filed  in  the  office  of  the 
secretary  of  state  relating  to  the  corporation  shall  be  recorded;  but  the  secretary  of 
state  shall  not  in  any  case  file  or  record  any  articles  of  incorporation  in  which  the 
name  of  the  corporation  is  such  as  is  likely  to  mislead  the  public  as  to  the  character 
or  purpose  of  the  business  authorized  by  its  charter,  or  is  the  same  as  one  already 


General  Corporation   Law. 


101 


Articles  of  Incorporation,   §  3238. 


adopted  or  appropriated  by  an  existing  corporation  of  this  state  or  so  similar  to  the 
name  of  such  existing  corporation  as  to  be  likely  to  mislead  the  public,   unless  the 
written  consent  of  such  prior  existing  corporation,  signed  by  its  president  and  secre- 
tary, be  at  the  same  time  filed  with  such  articles  of  incorporation.     (March  31     1902 
95  V.  76;  April  27,  1896,  92  v.  320;  R.  S.   1880.) 


Time   of  filing. 

The  act  of  filing  tho  articles,  and  not  the 
file  murks  made  by  the  secretary  of  Btate,  de- 
termine the  time  of  filing.  So  if  the  secretary 
antedates  the  filing,  the  corporation  eannol 
be  injured. —  State  v.  Foulkes,  94  Ind.  493 
(1883).  See  King  v.  Penn,  43  Oh.  St.  .".7 
(1S85);  Haines  v.  Lindsey,  4  Oh.  88   (1829). 

Copies  as  evidence. 

Certified  copies  of  articles  cannot  be  used  as 
evidence  of  the  existence  of  a  corporation,  if 
they  are  prima  facie  invalid.  Articles  to  be 
so  used  must  show  a  substantial  compliance 
with  the  law. —  Doyle  v.  Mizner.  42  Mich.  332 
(1879)  ;  Baptist  Church  v.  R.  R.  Co..  4  Mackey 
(D.  C.)  43  (18bo);  McCallou  v.  Hvbernia  So- 
ciety, 70  Cal.  163  (1886);  People  v.  Self- 
ridge,  52  Cal.  331  (1877) ;  Harris  v.  McGregor, 
29  Cal.  127  (1865). 

Proof     of     performance     of     condition? 
precedent. 

Where  a  condition  precedent  to  the  right  of 
incorporation  is  prescribed  by  law.  it  is  not 
error  to  reject  as  evidence  the  certificate  of 
incorporation  in  due  form,  in  the  absence  of 
testimony  tending  to  show  that  the  condition 
has  been  fulfilled. —  Racoon  River  Nav.  Co.  v. 
Eagle.  29  Oh.  St.  238   (1876). 

Articles  evidence  though  purporting  to 
confer  unauthorized  powers. 

Where  articles  of  incorporation  are  offered 
in  evidence  they  are  not  objectionable  because 
they  purport  to  confer  powers  in  excess  of 
those  authorized  by  law,  for  they  are  legal  as 
to  the  powers  lawfully  granted.  The  remedy 
for  the  attempted  exercise  of  the  powers  not 
lawfully  granted  is  bv  quo  warranto. —  To- 
ledo, etc.,  Rv.  Co.  v.  Toledo,  etc..  Ry.  Co.,  6  O. 
C.  C.  362,  391  (1892) ;  s.  c,  3  C.  D.'493,  507. 

Evidence   aliunde. 

Imperfect  articles  cannot  be  aided,  varied  or 
contradicted  bv  evidence  aliunde. —  Attorney- 
General  v.  Lorman,  50  Mich.  157  iissc'i: 
Hallett  v.  narrower.  33  Barb.  (N.  Y.)  537 
(1860). 

Certificate  of  secretary  of  state. 

The  certificate  of  the  secretary  of  state  to  a 
copy  of  the  articles  can  only  be  as  to  the  cor- 
rectness of  the  copy.  He  cannot  certify  that 
regular  and  valid  steps  have  been  taken  to 
perfect  the  articles  and  that  valid  articles 
have  been  filed. —  Doyle  v.  Mizner,  42  Mich. 
332   (1879). 

Existence      of      corporation  —  proof      by 
best  evidence. 

The  existence  of  a  corporation  cannot  be 
proved  by  offering  in  evidence  a  pleading  of 


such  company  verified  by  a  superintendent. 
The  besl  evidence  should  be  offered.  The  prac- 
tice of  making  denials  of  corporate  existence 

when   there   18  gOOd    rca-on    to   he|ie\e    1  he    party 

is  a  corporation  is  discouraged   by  the  courts. 
-Memphis,  etc.,  Packel  Co.  v.  Fogarty,  !)  0. 
C.  C.  Rep.  418   (1895)  ;   s.  c,  6  C.  D.  375. 

Discretion    of    secretary    of    state    as    to 
filing. 

The  duty  of  the  secretary  of  state,  on  pre- 
sentation of  articles  of  incorporation  and 
tender  of  fees,  to  file  and  record  such  articles, 
and  upon  request  i->ue  a  duly  certified  copy 
thereof,  is  controlled  by  the  statutes  of  the 
state,  and  not  by  the  discretion  of  the  officer 
except  as  to  matters  of  form. —  State  ex  rel. 
v.   Taylor,  55  Oh.   St.  61    (1896). 

Discretion    of    secretary    of    state    as    to 
name. 

The  secretary  of  state  must  exercise  his  dis- 
cretion in  determining  whether  a  company 
asking  of  him  a  certificate  of  incorporation 
has  adopted  a  name  that  is  the  same  as  or  an 
imitation  of  that  of  an  existing  coi-poration, 
and  he  will  not  be  compelled  by  mandamus  to 
issue  a  certificate  until  it  appears  that  the 
law  has  been  complied  with  by  the  adoption 
of  a  name. —  State  ex  rel.  v.  McGrath,  92 
Mo.  355  (1887). 

Action    of    secretary    of    state    not    con- 
clusive. 

The  'action  of  the  secretary  of  state  cannot 
be  conclusive  as  to  another  corporation  hav- 
ing a  similar  name. —  Cincinnati  Yici  Shoe 
Co.  v.  Cincinnati  Shoe  Co.,  7  X.  P.  135  (1899). 

Object  of  law  to  protect  names. 

It  is  the  evident  purpose  of  the  statute  to 
protect  to  some  extent  the  common-law  rights 
both  as  to  the  company  first  adopting  a  name 
and  as  to  the  public,  which  may  be  misled. 
Where  the  names  so  far  resemble  each  other 
that  a  person  using  that  care,  caution  and 
observation  which  the  public  uses,  and  may 
he  expected  to  use.  would  mistake  one  tor  the 
ether,  then  the  new  name  is  to  be  regarded  as 
an  imitation  of  the  former.  The  character  of 
the  business  and  the  location  of  the  two  cor- 
porations must  be  considered. —  State  ex  rel. 
v.  McGrath,  supra. 

Deceptive  use  of  one's   own  name. 

If  a  person  permits  a  corporation  to  use  his 
name  as  a  part  of  its  name,  he  cannot  there- 
after permit  another  corporation  to  make  use 
of  hi-  name  in  any  way  likely  to  deceive  or 
confuse  the  public. —  Thaver.  etc..  Co.  v. 
Thayer  Co..  6  X.  P.  300  (1899);  s.  c,  9  Dec. 
2SS. 


102 


Private  Corporations  in  Ohio. 


Articles  of  Incorporation,  §  3238a. 


Similarity  of  names. 

The  name  "  The  George  A.  Thayer  Co."  is  an 
imitation  of  "The  George  A.  Thayer  Carpet 
Cleaning  and  Rug  Manufacturing  Co." — 
Thayer,  etc.,  Co.  v.  Thayer  Co.,  6  N.  P.  300 
(1899);   s.  c,  9  Dec.  288. 

The  name  "  The  Kansas  City  Real  Estate 
Exchange  "  is  an  imitation  of  "  The  Kansas 
City  Real  Estate  and  Stock  Exchange  Co."— 
State  ex  rel.  v.  McGrath,  supra. 

The  name  "  The  Holmes,  Booth  &  Atwood 
Mfg.  Co."  is  an  imitation  of  "  Holmes,  Booth 
&  Hayden." —  Holmes,  etc.  v.  Holmes,  etc., 
Co.,  37  Conn.  278    (1870). 

If  the  places  of  business  are  great  distances 
apart,  and  the  business  will  not  conflict,  two 
companies  may  have  the  same  name,  e.  g. 
"  The  Nebraska  Loan  &  Trust  Co."—  Ne- 
braska  Loan,  etc.,  Co.  v.  Nina,  27  Neb.  507 
(1889). 

The  name  "  United  States  Commercial 
Agency  &  Collecting  Co."  is  an  infringement 
of  "  United  States  Mercantile  Reporting  Co." 
—  In  re  U.  S.  Mercantile  Co.,  4  N.  Y.  Supp. 
916   (18S9). 


See  generally  Newby  v.  Oregon,  etc.,  Rv. 
Co.,  1  Deady  (U.  S.j  609  (1869);  Richardson, 
etc.,  Co.  v.  Richardson,  etc.,  Co.,  8  N.  Y.  Supp. 
52  (1889);  Farmers'  Loan,  etc.,  Co.  v.  Far- 
mers' Loan,  etc.,  Co.,  IN.i.  Supp.  44  (1888)  ; 
Snyder  Mfg.  Co.  v.  Snyder,  54  Oh.  St.  86 
(1896);  Ex  parte  Walker,  1  Tenn.  Ch.  97 
(1873);  Lehigh  Valley  Coal  Co.  v.  Hamblen, 
23  Fed.  225  (1885);  Adams  v.  Brown,  16  Oh. 
St.  75   (1865). 

When  corporation  is   created. 

The  making  and  filing,  for  the  purpose  of 
profit,  of  articles  of  incorporation  in  the  office 
of  the  secretary  of  state,  do  not  make  an  in- 
corporated company :  such  articles  are  simply 
authority  to  do  so.  No  company  exists  within 
the  meaning  of  the  statute  until  the  requisite 
stock  has  been  subscribed  and  paid  in,  and  the 
directors  chosen. —  State  ox  rel.  v.  Insurance 
Co.,  49  Oh.  St.  440  (1892).    See  §  3239,  note. 

Forgery  of  charter. 

See  §  7091. 

For  forms  of  certificates,  see  Appendix. 


§  3238a.  AMENDMENTS,  HOW  MADE,  PROVISO,  RECORD,  NOTICE,  WAIVER, 
FEE. —  Any  corporation  incorporated  under  the  general  corporation  laws  of  the  state, 
may,  at  any  meeting  of  its  members  or  stockholders,  of  which,  and  of  the  business  to 
come  before  said  meeting  thirty  days'  notice  has  been  given  by  a  majority  of  the 
directors  or  trustees  of  said  corporation  in  a  newspaper  published  and  of  general  cir- 
culation in  the  county  where  the  principal  place  of  business  of  said  corporation  is 
located,  by  a  vote  of  the  owners  of  at  least  three-fifths  of  its  capital  stock  then  sub- 
scribed, in  the  case  of  corporations  having  a  capital  stock,  or  by  a  vote  of  at  least 
three-fifths  of  its  members  of  corporations  having  no  capital  stock,  amend  its  articles 
of  incorporation  so  as  to  change  its  corporate  name,  or  the  place  where  it  is  to  be 
located,  or  where  its  principal  business  is  to  be  transacted;  or  so  as  to  modify,  enlarge 
or  diminish  the  objects  or  purposes  for  which  it  is  formed;  or  so  as  to  add  thereto  any- 
thing omitted  from,  or  which  might  lawfully  have  been  provided  for  in  such  articles 
originally;  provided,  however,  that  nothing  in  this  supplementary  section  contained 
shall  authorize  a  corporation,  by  amendment,  to  increase  or  diminish  the  amount  of 
its  capital  stock;  nor  shall  any  corporation,  by  amendment,  change  substantially  the 
original  purposes  of  its  organization.  When  adopted,  a  copy  of  such  amendment,  with 
a  certificate  thereto  affixed,  signed  by  the  president  and  secretary  of  the  corporation, 
and  sealed  with  the  corporate  seal,  if  any  there  be,  stating  the  fact  and  date  of  the 
adoption  of  such  amendment,  and  that  such  copy  is  a  true  copy  of  the  original,  shall 
be  recorded  in  the  office  of  the  secretary  of  state,  who  shall  note  on  the  margin  of  the 
record  of  the  original  articles  of  incorporation  of  said  corporation,  and  on  the  margin 
of  the  index  thereto,  the  volume  and  page  where  such  amendment  is  recorded;  and 
no  such  amendment  shall  take  effect  until  filed  for  record  with  the  secretary  of  state 
as  herein  provided,  and  until  the  secretary  of  the  corporation  shall  have  given  notice 
for  three  consecutive  weeks,  in  some  newspaper  of  general  circulation  in  the  county 
where  the  principal  office  of  the  corporation  is  situated,  of  such  amendment;  pro- 
vided, however,  that  any  or  all  of  the  notices  required  by  this  section  may  be  waived 
whenever  the  holders  of  all  of  the  capital  stock,  of  a  corporation  having  a  capital 
stock,  or  all  the  members  of  a  corporation  having  no  capital  stock,  consent  thereto  in 
writing.     But  no  corporation  shall  change  its  name  to  one  already  appropriated,  or  to 


General  Corporation   Law. 


103 


Creation  and  Powers,  §  3239. 


one  likely  to  mislead  the  public;  nor  shall  any  corporation,  by  amendment,  provide 
for  a  purpose  which  is  unlawful.  For  recording  such  amendments  and  for  furnishing 
a  certified  copy,  the  secretary  of  state  shall  receive  a  fee  of  twenty  cents  a  hundred 
words,  to  be  in  no  case  less  than  five  dollars.     (May  18,   1886,  83  v.  193.) 


Original  purpose  must  not  be  changed. 

The  authority  to  amend  articles  <>!'  incor- 
poration given  by  this  section  is  controlled 
by  the  proviso  which  denies  the  righl  to 
change  substantially  the  original  purpose  of 
the  organization,  so  a  company  organized  to 
furnish  gas  and  electricity  for  Light,  heat  and 
power  cannot  amend  its  articles  so  as  to  em- 
power it  to  own  and  operate  a  street  railway 
for  the  conveyance  of  passengers,  freight,  ex- 
press and  mail  matter. —  State  ex  rel.  v.  Tay- 
lor, 55  Oh.  St.  (il   (1S90). 

Discretion  of  secretary  of  state. 

The  discretion  to  be  exercised  by  the  secre- 
tary of  state  does  not  reach  to  the  merits  of 
an  application  for  articles  of  incorporation, 
or  of  an  amendment  to  articles,  although  it 
may  be  exercised  as  to  matters  of  form. — 
State  ex  rel.  v.  Taylor,  supra. 

Gas  and   electric   company. 

A  corporation  organized  to  manufacture 
and  furnish  gas  to  light  the  streets,  etc.,  may 
amend  its  charter  so  as  to  authorize  it  to 
manufacture  and  furnish  electricity  in  addi- 
tion to  gas  for  the  purpose  of  lighting,  with 
out  changing  substantially  the  original  pur- 
poses of  its  organization. —  Picard  v.  Hughev, 
58  Oh.  St.  577   (1898). 

Validity  of  corporate   act  after  change 
of    purpose. 

If  a  corporation  amends  its  charter  under 
this  section  so  as  to  substantially  change  its 
original  purposes,  any  bonds  it  may  execute 
and  issue  to  further  the  objects  of  such  illegal 
amendment  will  be  void  in  the  hands  of  hold- 
ers with  notice. —  See  Picard  v.  Hughey, 
supra,   p.   595. 

Incidental    amendments. 

An  amendment  may  be  said  to  be  incidental 
and  auxiliary  when  it  merely  grants  newr  pow- 
ers or  authorizes  new  methods  and  new  plans 
for  the  purpose  of  carrying  out  the  original 
plan  and  effecting  the  real  object  of  that  plan. 
—  See  Davton,  etc.,  R.  R.  Co.  v.  Hatch,  1 
Dis.  84    (1855). 


When  assent  of  all  stockholders  neces- 
sary. 

An  amendment  of  the  charter  of  a  railway 
company  authorizing  it  to  engage  inthetrans 
portation  of  passengers  am!  goods  by  water 
is  a  fundamental  change,  and  must  lie  assented 
to  by  all  the  stockholders. —  Marietta  etc., 
R.  R.  Co.  v.  Elliott,  10  Oli.  St  57   (1859). 

Stockholders'  rights  lost  by  laches. 

Assuming  that  the  legislature  has  no  power 
to  authorize  a  company  to  embark  in  new 
enterprises  and  make  fundamental  changes  in 
its  charter  without  the  consent,  of  all  its 
stockholders,  nevertheless,  before  a  stock- 
holder can  be  entitled  to  a  remedy  by  in j unc- 
tion against  such  departure  from  the  original 
objects  of  the  corporation,  he  must  have  shown 
himself  prompt  and  vigilant  in  the  assertion 
of  his  rights  as  such  stockholder.  It  will  not 
do  for  him  to  wait  until  the  mischief  i-  accom- 
plished, or  he  will  be  held  to  have  acquiesced 
in  the  change. —  Chapman  v.  Mad  River,  etc., 
R.  R.  Co.,  li  Oh.  St.  119  (1S5G);  Owen  v. 
Purdy,  12  Oh.  St.  73  (1861). 

Effect  of   §§  3866  and  3311. 

A  mining  or  other  company,  having  built  a 
railroad  under  §  380(3,  can  only  change  the 
office  of  its  railroad,  not  its  general  office, 
under  §  3311.—  State  v.  Coal  Co.,  4  X.  P.  115 

(1897);  s.  c,  6  Dec.  178. 

Proof  of  change  of  name. 

The  question  whether  the  terms  of  a  statute 
authorizing  a  change  of  name  on  the  part  of  a 
railroad  company  upon  the  making  of  certain 
subscriptions  authorized  by  the  same  act.  lias 
been  complied  with  or  not,  is.  where  pertinent, 
a  proper  subject  of  allegation  and  proof,  and 
courts  will  not  take  judicial  notice  of  a  state- 
ment in  a  report  of  the  commissioner  of  rail- 
roads to  the  effect  that  the  terms  of  the 
statute  have  been  complied  with,  and  the 
name  of  the  company  changed. —  Railroad  Co. 
v.  Hoffhines,  46  Oh.  St.  643   (1889). 

General   notes   on   amendments. 

See  notes  to  §  3234. 

For  forms  of  certificate,  notice  and  waiver, 
see  Appendix. 


§  3239.  CORPORATION  CREATED,  GENERAL  POWERS.— Upon  such  filing 
of  the  articles  of  incorporation,  the  persons  who  subscribe  the  same,  their  associates, 
successors,  and  assigns,  by  the  name  and  style  provided  therein,  shall  thereafter  be 
deemed  a  body  corporate,  with  succession,  and  power  to  sue  and  be  sued,  contract  and 
be  contracted  with,  acquire  and  convey  at  pleasure  all  such  real  or  personal  estate 
as  may  be  necessary  and  convenient  to  carry  into  effect  the  objects  of  the  incorpora- 
tion, to  make  and  use  a  common  seal,  the  same  to  alter  at  pleasure,  and  to  do  all  need- 


104 


Private  Corporations  in  Ohio. 


Creation  and  Powers,  §  3239. 


ful  acts  to  carry  into  effect  the  objects  for  which  it  was  created, 
v.  274,  §  3.) 


(May  1,   1852,  50 


"When  corporate  existence  begins. 

As  soon  as  articles  of  incorporation  are  duly 
filed  the  signers  thereof  become  a  body  cor- 
pora te.  with  power  to  act  as  pointed  out  in 
the  statutes.  Under  the  restrictions  inij:>osed, 
the  powers  fall  into  two  classes  —  such  as  may 
be  exercised  before  and  such  as  cannot  be  un- 
til after  the  election  of  directors.  The  corpo- 
rators may  receive  subscriptions  to  stock  and 
elect  directors,  but  the  business  for  the  trans- 
action of  which  the  company  was  formed  can- 
not be  done  until  after  the  election  of  di- 
rectors. Although  a  corporation  exists  from 
the  time  of  filing  the  articles,  the  general 
effect  of  the  filing  is  to  give  the  corporators 
nothing  more  than  authority  to  form  and 
organize  a  corporation. —  State  ex  rel.  v.  Ins. 
Co.,  49  Oh.  St.  441  (1892);  Ashley  v.  Ryan. 
49  Oh.  St.  504,  524  (1892);  Powers  v.  Hazel- 
ton,  etc.,  Rv.  Co.,  33  Oh.  St.  429  (1878); 
Ashtabula,  etc.,  R,  R.  Co.  v.  Smith,  15  Oh.  St. 
328  (1864);  State  ex  rel.  v.  Robinson,  12  W. 
L.  B.  269  (1884).  See  Benninger  v.  Gall.  I 
C.  S.  C.  331  (1871);  Hanna  v.  International, 
etc.,  Co.,  23  Oh.  St.  622-625   (1873). 

Preliminary  organization  for  purpose 
of  incorporation  does  not  continue  as 
independent  organization  after  in- 
corporation. 

Every  corporation  is  affected  after  prelim- 
inary meetings  have  been  held  for  the  consid- 
eration of  the  subject  in  the  interests  of  which 
it  is  desired  to  oi'ganize  a  corporation ;  and  it 
cannot  be  held  that  after  such  preliminary 
meetings  have  been  held,  articles  of  incorpora- 
tion prepared  and  forwarded  to  the  secretary 
of  state,  and  after  such  articles  have  been  re- 
turned, properly  certified,  and  adopted  by  the 
organization,  that  the  preliminary  organiza- 
tion continues  as  a  separate  and  distinct 
organization  from  the  corporation.—  Muhl- 
hauser  v.  The  Cleveland  Hospital,  21  O.  C.  C. 
88   (1900). 

Promoter  may  agree  to  secure  an  office 
in  a  corporation  to  be  formed. 

The  rule  which  forbids  a  director  of  a  cor- 
poration from  agreeing  to  secure  a  person  an 
office  in  the  corporation,  does  not  apply  to  a 
promoter,  and  a  recovery  can  be  had  for  a 
breach. —  Magill  v.  Rendigs,  12  Dec.  558 
(  MI02). 

Liability  of  promoters  for  secret  profits. 

See  Yciser  v.  U.  S.  Board,  etc.,  Co.  (TJ.  S. 
C.  C.  A.),  12  O.  F.  D.  678  (1901). 

Contracts  with  corporations  before  ex- 
istence. 

An  agreement  made  with  a  company  before 
it  is  incorporated  is  void  for  want  of  mutual- 
Dayton,   etc.,   Turnpike   Co.   v.   Coy,   13 
Oh.  St.  84   (1861). 


Same   subject,   exception. 

Where  the  promoters  of  a  corporation  go 
forward  in  good  faith  and  contract  debts 
which  are  necessary  to  the  creation  and  ad- 
vancement of  the  corporation,  and  the  cor- 
poration afterward  avails  itself  of  the  benefit 
of  those  acts,  it  is  liable.  Thus  it  is  liable  un- 
professional services  in  preparing  its  articles 
of  incorporation. —  City  Bldg.  Ass'n  v.  Zah- 
ner,  6  W.  L.  B.  389  '(1881)';  Taussig  v.  St. 
Louis,  etc.,  Ry.  Co.,  65  S.  W.  Rep.  (Mo.)  969 
(1901). 

Same      subject,     bequest     to     unformed 
corporation. 

See  Trustees  v.  Zanesville,  etc.,  Mfg.  Co.,  91 
Oh.  203   (1839). 

Associates.  » 

For  the  meaning  of  the  word  "  associates  " 
in  an  act  of  incorporation,  see  State  v.  Sibley, 
2.1  Minn.  387  (1879)  ;  Lechmere  Bank  v.  Boyn- 
ton,  11  Cush.   (Mass.)  369   (1853). 

Powers  outside   of  this  state. 

An  Ohio  corporation  can  exercise  no  greater 
powers  outside  of  this  state  than  it  can  here, 
for  the  reason  that  its  charter  is  in  all  cases 
the  source  and  limit  of  its  powers.  So  a  bank 
authorized  to  loan  money  at  a  fixed  rate  in 
this  state  cannot  loan  at  a  greater  rate  in  an- 
other state,  notwithstanding  such  greater  rate 
mav  be  legal  there. —  Ewing  v.  Toledo  Savings 
Bank,  43  Oh.  St.  31  (1885).  See  Kit  Carter 
Cattle  Co.  v.  McGillin,  21  O.  C.  C.  210   (1901). 

Powers   of  corporations,  general  rule. 

The  general  rule  is  to  consider  corporations 
as  having  such  powers  as  are  specifically 
granted  by  the  act  of  incorporation  or  as  are 
necessary  for  the  purpose  of  carrying  into 
effect  the  powers  expressly  granted  and  not 
as  having  any  other. —  Bonham  v.  Taylor,  10 
Oh.  108  (1840);  Bank  v.  Swayne,  S  Oh.  257, 
286  (1838);  State  v.  Granville,  etc..  Society, 
11  Oh.  1,  12  (1848);  Straus  v.  Eagle  Ins.  Co., 
5  Oh.  St.  59  (1855);  Lessee  of  Overmeyer  v. 
Williams,  15  Oh.  26-31  (1846);  Franklin 
Bank  v.  Commercial  Bank,  36  Oh.  St.  350 
(1881);  Columbus,  etc.,  Ry.  Co.  v.  Burke,  19 
W.  L.  B.  27  (1887);  Brush  Electric  Light  Co. 
v.  Jones  Bros.,  etc.,  Co.,  23  W.  L.  B.  329,  331 
(1890)  ;  Central,  etc..  Fuel  Co.  v.  Capital,  etc., 
Dairy  Co.,  60  Oh.  St.  96,  104  (1899);  State 
ex  rel.  v.  Eagle  Ins.  Co.,  50  Oh.  St.  252,  267 
(1893);  State  v.  Washington,  etc.,  Co.,  11  Oh. 
96  (1841);  Lessee  v.  Cincinnati,  etc.,  Turn- 
pike Co.,  11  Oh.  392  (1842) ;  James  v.  Cin- 
cinnati, etc.,  R.  R.  Co.,  2  Dis.  261  (1858)  ;  Rv. 
v.  Iron  Co..  46  Oh.  St.  44,  49  (1888) ;  R.  R.  v. 
Hinsdale,  45  Oh.  St.  556,  572  (18S8). 

Rule  of  construction. 

An  act  of  incorporation,  like  any  other  stat- 
ute,  should  be  construed  in  such  manner  as 


<  rENERAL    (  CORPORATION    LAW. 


105 


Creation  and  Powers,  8  3239. 


will  best  answer  the  intention  of  the  legisla 
ture,  and  all  its  pails  should,  if  possible,  be 
made  subservient  to  and  in  harmony  with  the 
leading  purposes  and  objects  intended  to  be 
accomplished,  and  for  which  the  corporation 
is  created.  To  effect  this,  the  whole  mu-t  be 
considered  and  construed  together,  with  direct 
reference  to  those  purposes  and  objects  and 
all  its  minor  and  incidental  provisions  be  so 
used  us  to  promote  them.  To  dissert  it  into 
parts  and  to  seize  upon  isolated  portions 
from  which  to  graft  independent  powers  not 
in  harmony  with  or  necessary  to  attain  the 
main  design  is,  in  almost  every  ease,  to  defeat 
the  intention  of  the  legislature. —  Straus  v. 
Eagle  Ins.  Co.,  5  Oh.  St.  59  (1855).  See 
White's  Bank  v.  Toledo  Ins.  Co.,  12  Oh.  St. 
601,  605  (1861);  James  v.  Cincinnati,  etc.,  R. 
R.  Co.,  2  Dis.  261    (1858). 

Same  subject. 

Owing  to  the  change  of  circumstances  and 
the  increased  power  of  the  legislature  over 
corporations,  the  language  of  acts  of  incor- 
poration is  to  be  construed  by  exactly  the 
same  rules  of  interpretation  as  are  applied  to 
like  words  in  any  contract  or  statute. —  Na- 
tional Bank  v.  Ins.  Co.,  41  Oh.  St.  1,  12 
(1884). 

Same  subject. 

Powers  cannot  be  implied  from  the  want  of 
express  provision  in  a  charter,  as,  for  instance, 
where  the  charter  of  a  gas  company  is  silent 
as  to  the  rates  it  may  charge,  power  in  the 
corporation  to  fix  its  own  rates  cannot  be 
implied. —  Zanesville  v.  Gas  Light  Co.,  47  Oh. 
St.    1,  31    (1889). 

Same  subject. 

Laws  conferring  corporate  privileges  and 
immunities  upon  corporations  must  be  strictly 
construed,  and  any  ambiguity  in  the  terms  of 
the  charter  of  a  corporation  must  operate 
against  the  corporators  and  in  favor  of  the 
public— State  v.  Vanderbilt,  37  Oh.  St.  590. 
641  (1882);  State  ex  rel.  v.  Eagle  Ins.  Co.,  50 
Oh.  St.  252,  267  (1893);  Debolt  v.  Ohio,  etc., 
Trust  Co.,  1  Oh.  St.  563  (1853);  Matheny  v. 
Golden,  5  Oh.  St.  361,  417  (1856).  See  James 
v.  Cincinnati,  etc.,  R.  R.  Co.,  2  Dis.  261 
f    (1858). 

Modification  of  old  rule. 

<     The  line  of  cases  resting  upon  the  authority 

of   Bank   v.    Swayne,   8   Oh.    258,   and   ending 

'  with   Kilbreth  v.   Bates,   38   Oh.   St.   187,   rest 

(Upon  their  own  peculiar  merits;  and  while  no 

1  doubt    good    law    applicable    to    the    situation 

then   before   the   court,    are   not   to   be   unre- 

v  servedly  applied  to  our  modern  corporations. 

—  See   Larwell   v.   Hanover,    etc.,    Society,   40 

Oh.    St.    274,    285    (1883);    National    Bank    v. 

Ins.  Co.,  41  Oh.  St.  1,  11   (1884). 

Application  of   general  rule. 

The  general  rule  should  be  reasonably  ap- 
plied with  a  view  of  promoting  the  legitimate 


objeel  3  of  i  he  corpoi  al  ion  i  a1  her  t  ban  w  ith  a 
st  rid  ness  t  hal  « ould  so  hedge  ii  about  ae  to 
obstruct  the  practical  attainment  of  the  cor- 
porate purpose  or  embarrass  the  corpi 
business.  Those  implied  power-  which  a  cor 
poration  has,  in  order  to  carry  into  effect  its 
legitimate  purposes,  are  not  limited  to  Buch  as 
are  indispensable  to  their  accomplishment,  but 
include  all  those  powers  thai  are  neces- 
sary in  the  sense  ol  appropriate,  convenient 
and  suitable,  including  a  right  of  reasonable 
(dioiee  of  means  to  he  employed;  and  whether 
an  act  come-  within  those  powers  mu-t  be 
determined  in  each  case  from  all  the  facts  and 
circumstances.  Acts  which,  if  standing  alone, 
or  when  engaged  in  as  a  l)ii»inc->,  would  be 
beyond  the  power-,  of  a  corporation,  are  qo4 
necessarily  ultra  vires,  when  they  are  merely 
incidental  to  or  form  a  part  of  an  entire 
transaction  that,  in  its  general  scope,  is 
within  the  corporate  purpose.  The  validity  of 
transactions  is  to  be  determined  from  their 
general  character,  considered  as  a  whole, 
rather  than  by  segregation  into  individual 
parts,  and  each  regarded  as  distinct  from  the 
others. —  Central,  etc.,  Fuel  Co.  v.  Capital, 
etc.,  Daily  Co.,  60  Oh.  St.  96  (1899).  See 
Central  Trust  Co.  v.  Columbus,  etc.,  Ry.  Co., 
87  Fed.  815  (1898);  s.  c,  10  O.  F.  D.  328; 
Railroad  Co.  v.  Furnace  Co.,  37  Oh.  St.  321, 
330    (1881). 

Same  subject. 

In  determining  whether  a  .corporate  act  is 
ultra  vires  or  not,  regard  must  be  had  to  its 
effect  and  the  real  object  in  view. —  Bank  v. 
Flour  Co.,  41  Oh.  St.  552,  558   (1885). 

Influence  of   circumstances. 

In  applying  the  doctrine  of  ultra  vires,  re- 
gard must  not  only  be  had  to  the  unauthor- 
ized agreement  or  transaction,  but  also  to  the 
relation  which  the  litigating  parties  sustain 
to  it. —  Ehrman  v.  Ins.  Co.,  35  Oh.  St.  324, 
337  (1880);  Central,  etc.,  Fuel  Co.  v.  Capital, 
etc.,  Dairy  Co.,  60  Oh.  St.  96,  106  (1899). 

Acts  of  stockholders,  when  deemed  cor- 
porate acts. 

When  all  or  a  majority  of  the  stockholders 
comprising  a  corporation  do  an  act  which  is 
designed  to  affect  the  property  and  business 
of  the  company,  and  which,  through  the  con- 
trol their  numbers  give  them  over  the  selec- 
tion and  conduct  of  the  corporate  agencies, 
does  affect  the  property  and  business  of  the 
company  in  the  same  manner  as  if  it  had  been 
done  by  a  formal  resolution  of  its  board  of  di- 
rectors, and  the  act  so  done  is  ultra  vires  "f 
the  corporation  and  against  public  policy,  and 
was  done  by  them  in  their  individual  capacity 
for  the  purpose  of  concealing  their  real  pur- 
pose and  object,  the  act  should  be  regarded  as 
that  of  the  corporation,  and  may  be  chal- 
lenged by  the  state  as  such. —  See  paper  by  1'. 
B.  Fenney,  32  W.  L.  B.  318;  State  ex  rel.  v. 
The  Standard  Oil  Co.,  49  Oh.  St.   137    (1S92). 


106 


Private  Corporations  in  Ohio. 


Creation  and  Powers,  §  3239. 


Purpose    of    corporate    act  —  evidence. 

Where  a  corporation  is  organized  to  do  an 
act  in  furtherance  of  its  business,  evidence  is 
admissible  to  show  the  real  purpose  of  the  act, 
and  that  it  was  for  an  unauthorized  object. — 
See  White's  Bank  v.  Toledo  Ins.  Co.,  12  Oh. 
St.  601,  GOT  (1861);  Straus  v.  Eagle  Ins.  Co., 
5  Oh.  St.  59   (1S55). 

Notice  of  corporate  powers. 

The  powers  of  a  corporation  are  presumed 
to  be  known  as  matters  of  law  to  all  persons 
interested  in  it  or  having  dealings  with  it. — 
Lee  v.  Hartwell,  5  W.  L.  G.  9  (1.860);  James 
v.  Cincinnati,  etc.,  R.  R.  Co.,  2  Dis.  273 
(1858). 

Presumption    of    validity    of    corporate 
acts. 

It  is  presumed  that  a  corporation  is  acting 
within  its  powers,  and  a  contract,  bill  or  note 
of  a  corporation  will  be  presumed  to  be  valid 
until  the  contrary  is  shown. —  Straus  v. 
Eagle  Ins.  Co.,  5  Oh.  St.  59,  62  (1855). 

Ultra  vires  acts  do  not  dissolve  per  se. 

The  powers  of  a  corporation  do  not  cease  by 
the  mere  act  of  violating  its  charter,  though 
there  be  a  provision  in  the  charter  that  such 
a  consequence  shall  ensue.  The  act  of  viola- 
tion must  be  established  by  some  proceeding 
instituted  by  the  state.  It  is  the  right  of  the 
government  (which  may  waive  any  violation) 
that  a  charter  shall  not  be  destroyed  or 
even  surrendered  without  its  assent. —  Finnell 
v.  Burt,  2  Handy,  202  (1856);  Benninger  v. 
Gall,  1  C.  S.  C.  331  (1871).  See  Webb  v. 
Moler,  8  Oh.  552    (1838). 

■When  incidental  ultra   vires   act  valid. 

A  corporation  exercising  a  reasonable  choice 
of  means  of  accomplishing  an  act  within  its 
general  powers  may  incidentally  do  some  act 
not  authorized,  as,  for  instance,  where  a  cor- 
poration, to  avoid  delay  and  expense  in  ob- 
taining a  running  business,  buys  out  the  busi- 
ness of  a  partnership;  it  may  take  with  the 
property  outstanding  claims,  including  a  claim 
for  damages  caused  by  negligence,  which  it 
may  enforce,  although  it  would  have  no  gen- 
oral  power  to  buy  claims  of  that  nature. — 
Central,  etc..  Fuel  Co.  v.  Capital,  etc.,  Dairy 
Co.,  60  Oh.  St.  96  (1899). 

Contracts   partly  ultra   vires. 

Where  a  contract  with  a  corporation  is 
partly  legal  and  partly  ultra  vires,  the  legal 
part  will  be  enforced  if  it  can  be  separated 
from  the  part  which  is  ultra  vires. —  Morris 
v.   Way,   16  Oh.  469    (1847). 

Who    may    question    corporate    powers? 

A  person  against  whom  a  corporation  may 
claim  the  right  to  exercise  a  power  may  call 
the  power  in  question  and  require  the  com- 
pany to  show  the  existence  of  the  power. 
Even  after  an  adjudication  upon  the  question, 
the  company  may  claim  and  exercise  the  right 


as  to  other  persons  until  ousted  by  the  state. 
-Zanesville  v.   Gas   Light  Co.,  47    Oh.   St.   1 
(1889);    Gas   Light  Co.   v.   Zanesville,   47   Oh. 
St.  35,  47   (1889"). 

Rights  of  stranger  to  transaction.  ; 

A  stranger  to  an  agreement  or  transaction, 
has  no  right  to  question  its  validity.  To  ob- 
tain a  standing  in  a  court  of  justice  to  make 
such  inquiry  a  party  must  show  that  he  is 
interested  in  the  question,  and  that  the  execu- 
tion of  the  agreement  operates  to  his  injury 
or  prejudice:  so  the  maker  of  a  note,  when 
sued  by  a  corporation,  which  acquired  the 
note  from  the  payee  company,  cannot  ques- 
tion the  powers  of  the  companies  to  make  the 
transfer. —  Ehrman  v.  Union,  etc.,  Ins.  Co.,  35 
Oh.  St.  324  (1880);  White's  Bank  v.  Toledo 
Ins.  Co.,  12  Oh.  St.  601  (1861)  ;  Bank  v.  Mcln- 
tyre,  40  Oh.  St.  528  (1884)  ;  Central,  etc..  Fuel 
Co.  v.  Capital,  etc.,  Dairy  Co.,  60  Oh.  St.  96 
(1899);  Gould  v.  Union,  etc.,  Ins.  Co.,  8  W. 
L.  B.  281    (18S2);  s.  c,  8  Dec.  525. 

Guaranty  of  ultra  vires   contracts. 

When  a  contract  not  illegal,  immoral  or 
contrary  to  public  policy  is  entered  into  by 
a  corporation  through  its  officers  and  direct- 
ors, a  written  guaranty  that  such  corpo- 
ration will  perform  its  promise  under  the 
contract  is  valid  and  enforceable,  although 
the  contract  of  the  corporation  may  be  void 
as  ultra  vires.— Zerkle  v.  Price,  5  N.  P.  480 
(1898)  :    s.  c,   7   Dec.  465. 

Fiction   of  legal   entity   of   corporation. 

The  fiction  that  a  corporation  is  a  legal 
entity  distinct  from  the  persons  who  com- 
pose it  can  never  be  resorted  to  when  it  al- 
lows the  persons  composing  the  corporation 
to  work  an  injury  to  any  one. —  Sportsman 
Shot  Co.  v.  American  Shot,  etc.,  Co.,  30  W.  L. 
B.  87  (1893);  Cronin  v.  Potter's  Co-op. 
Co.,  29  W.  L.  B.  52  (1892);  First  Nat.  Bank 
v.  Trebein,  59  Oh.  St.  316  (1898);  State  ex 
rel.  v.  Standard  Oil  Co..  49  Oh.  St.  137   (1892). 

Partnership  reorganized  as  corporation 
—  liahility. 

The  incorporation  of  partnership  business 
without  notice  to  creditors  will  not  free  part- 
ners from  individual  liability  for  debts  of  the 
company. —  Perkins  v.  Rouss,  29  So.  Rep. 
(Miss.)*  92. 

Liability    of    corporation    taking    part- 
nership property. 

Where  the  members  of  a  partnership  form  a 
corporation  and  transfer  all  the  property  to  it, 
it  becomes  liable  for  the  partnership  debts.— 
See  Andres  v.  Morgan.  62  Oh.  St.  236    (1900). 

When    partnership  obligations    deemed 
paid. 

When  a  partnership,  which  has  given  its 
notes  to  a  party,  is  converted  into  a  corpo- 
ration and  it  sends  its  notes  to  take  up  the 
partnership     obligations,    the     payee     cannot 


General  Corporation  Law 


107 


Creation  and  Powers,  §  3239. 


keep  both,  but  must  choose.  See  Ellis  v. 
Ballou,  ss  \.   \Y.   Rep.   (Mich:)   898   (1902). 

Corporation    used    to    defraud  —  liabili- 
ties. 

If  persons  with  the  design  to  defraud  any 
one  or  the  public  generally,  combine  together 

and  succeed  in  their  purpose,  they  must  re- 
spond in  damages  to  those  injured,  and  they 
cannot  defend  on  the  grouri*d  thai  they  have 
been  duly  incorporated  and  acted  as  a  cor- 
poration.—  Bartholomew  v.  I '.cut  ley.  1  Oh.  St. 
37,  44  (1852);  Bartholomew  v.  Bentley,  15 
Oli.  659  (1846);  Brundred  v.  Rice,  40  Oh.  St. 
640  (1892);  Raymond  v.  Spring  Grove,  etc., 
Ry.  Co.,  21   W.  L.  B.  103   (18S9). 

Same  subject. 

Where  a  failing  debtor  forms  a  corporation 
composed  of  himself  and  members  of  his  fam- 
ily, he  taking  substantially  all  the  stock,  and 
at  once  conveys  all  his  property  to  the  cor- 
poration in  exchange  for  the  stock  by  him 
taken,  and  for  no  other  consideration,  and  im- 
mediately places  all  his  stock  except  one 
share  with  certain  of  his  creditors  who  have 
knowledge  of  the  facts,  as  collateral  security 
to  their  claims,  and  as  president  and  general 
manager  retains  control  of  the  property,  such 
a  conveyance  and  transaction  is  a  fraud  on 
creditors,  and  may  be  set  aside.  When  it  is 
made  to  appear  that  a  charter  is  being  used 
to  defraud,  and  conceal  the  acts  of  the  real 
parties,  it  will  be  dealt  with  as  though  no 
corporation  had  been  formed. —  First  Na- 
tional Bank  v.  Trebein,  59  Oh.  St.  316  (1898). 
See  Andres  v.  Morgan,  62  Oh.  St.  236   (1900). 

Personal   liability  for   ultra   vires   acts. 

Where  the  entire  business  carried  on  by 
persons  in  the  name  of  the  corporation  is  such 
that  the  corporation  is  prohibited  by  law  from 
doing,  they  cannot  interpose  the  corporate 
privileges  between  them  and  the  liabilities 
which  the  law  imposes  upon  individuals  in  the 
transaction  of  similar  business  without  the 
use  of  a  corporate,  name. —  Medill  v.  Collier, 
16  Oh.  St.  613  (1886);  Kearny  v.  Buttles,  1 
Oh.  St.  362  (1853):  Rowland  v.  Meader  Fur- 
niture Co..  38  Oh.  St.  269  (1882):  Lawler  v. 
Walker.  18  Oh.  151  (1849):  Lawler  v.  Burt, 
7  Oh.  St.  340  (1857):  Ridenour  v.  Mavo,  40 
Oh.  St.  9  (1883).  See  Manufacturers,  etc. 
Assn  v.  Lynchburg  Drug  Mills,  8  O.  C.  C.  112 
(1893). 

Same  subject. 

Where  a  corporation  has  general  power  to 
do  an  act.  or  make  a  contract,  but  does  the  act 
or  makes  the  contract  to  an  extent,  for  a  pur- 
pose or  in  a  mode  not  authorized,  the  persons 
interested  in  the  corporation  are  not  person- 
ally liable  as  the  makers  of  the  contract  or 
the  doers  of  the  act. —  Raymond  v.  Spring 
Grove,  etc.,  Ry.  Co.,  21  W.  L.  B.  103    (1889). 

Same  subject. 

All  the  stockholders  of  a  corporation  are 
not  personally  responsible  for  the  debts  con- 
tracted in  the  transaction  of  the  business  the 


corporation  is  prohibited  from  doing.  The 
liability  is  fixed  upon  those  who  engage  in  or 
-auction  the  business.  Medill  \.  Collier,  16 
oh.  St.  613  i  L866)  :  Kearny  v.  Buttles,  1  oh. 
St.  362  1 1853)  :  Second  Nat.  Banl  v.  Hall.  .v. 
oh.  Si.  ir,s.  Kin  (1878).  Sec  Riahhard  \. 
Hovey,    L3  oh.   300    1 1844). 

Estoppel. 

A  creditor  i-  not  estopped  to  claim  againsl 
the  interested  parties  by  hi-  having  recovered 
judgmenl  againsl  the  corporation  or  having 
proved  hi-  claim  againsl  it  in  bankruptcy 
proceedings,  and  received  a  dividend.-  Ride 
nour  v.  Mayo,  29  Oh.  St.  138  I  L876)  ;  Meader 
Furniture  Co.  v.  Rowland.  :;  W.  L.  l'».  -iso 
(1878). 

Corporation    not    estopped    by    ratifica- 
tion  of  stockholders. 

A  corporation  is  not  estopped  from  main- 
taining an  action  to  set  aside  ultra  vires  acts 
by  the  fact  that  at  the  time  of  the  act  the 
directors  owned  all  its  capital  stock,  and  as 
stockholders  unanimously  ratified  what  they 
as  directors  had  done. —  See  Central  Trust 
Co.  v.  Columbus,  etc.,  Ry.  Co.,  87  Fed.  815 
(1898);  Columbus,  etc.,  Ry.  Co.  v.  Burke.  L9 
W.  L.  B.  27  (1887).  Contra,  and  better  rule. 
s.  c.s  20  W.  L.'B.  287. 

Rights  of  stockholders. 

A  stockholder  has  the  right  to  insist  upon 
the  confinement  of  corporate  acts  and  business 
within  the  scope  of  its  powers,  but  in  a  proper 
case  a  stockholder  may  be  denied  relief  be- 
cause of  his  assent  to  or  acquiescence  in  the 
acts  complained  of. —  Hill  v.  Cincinnati  Hotel 
Co.,  25  W.  L.  B.  425  (1891)  ;  Goodin  v.  Evans. 
18  Oh.  St.  150  (1868):  Sanderson  v.  .Etna, 
etc..  Nail  Co.,  34  Oh.  St.  442  (1878);  Baldwin 
v.  Eillsboro  Ry.  Co..  10  W.  L.  J.  337  (1853); 
Chapman  v.  Mad  River,  etc..  R.  R.  Co..  6  Oh. 
St.  119  (1856);  Zabriskie  v.  Cleveland,  etc., 
R.  R.  Co.,  64  U.  S.  3S1   (1859). 

Same  subject. 

The  court  of  equity  will  not  hear  a  stock- 
holder assert  that  he  is  not  interested  in  pre- 
venting the  law  of  the  corporation  from  being 
violated. —  Zabriskie  v.  Cleveland,  etc..  R.  R. 
Co.,  64  U.  S.  381    (1859). 

Rights  of  members  of  corporations  not 
for  profit. 

Any  member  of  a  religious  corporation  has 
the  right  by  injunction  to  prevent  a  breach 
of  trust  by  the  corporation  or  a  majority  of 
its  members. —  Wiswell  v.  First,  etc..  Church. 
14  Oh.  St.  31,  40   (1862). 

Liability  for  assault  and  battery. 

A  corporation  is  not  liable  to  be  sued  in  an 
action  of  assault  and  battery. —  Orr  v.  Bank 
of  U.  S.,  1  Oh.  36  (1821).  'See  Nelson,  etc,, 
College  Co.  v.  Llovd.  60  Oh.  St.  448  (1889); 
Eassenger  R.  R.  Co.  v.  Young,  21  Oh.  St.  518 
(1871);  Little  Miami  R.  R.  Co.  v.  Wetmore, 
19  Oh.  St.  110  (1869). 


108 


Private  Corporations  in  Ohio. 


Creation  and  Powers,  §  3239. 


Liability   for  libel. 

A  corporation  may  be  sued  for  libel  the 
same  as  an  individual. —  Union,  etc.,  Ins.  Co. 
v.  Mutual,  etc..  Ins.  Co.,  2  W.  L.  B.  269 
(1877). 

Liability   for   trespass. 

An  action  of  trespass  quare  clausum  fregit 
-will  not  lie  against  a  corporation. —  Foote  v. 
Cincinnati.  9  Oh.  31  (1839):  Ward  v.  Toledo, 
etc.,  R.  R.  Co.,  10  W.  L.  J.  365  (1853). 

Liability  for  negligence. 

Corporations  are  liable  for  injuries  arising 
from  the  negligence  of  their  agents  in  the 
course  of  their  employment  in  the  same  man- 
ner and  to  the  same  extent  as  individuals. — 
Cleveland,  etc.,  R.  R.  Co.  v.  Keary,  3  Oh.  St. 
201  (1854).  See  as  to  charitable  institutions 
Conner  v.  Sisters  of  Poor,  7  X.  P.  514  (1900)  ; 
Johnson  v.  Lawrence  Hospital,  12 ,  Dec.  795 
(1902). 

Power  to  contract. 

Inasmuch  as  neither  the  kind  of  contracts 
nor  their  subject-ma ttei,  nor  the  extent  to 
which  they  may  be  made,  is  ascertained  or 
defined  in  this  section,  the  capacity  or  power 
to  contract  must  have  reference  to  and  be 
limited  by  the  nature  of  the  corporate  busi- 
nees  engaged  in. —  Havs  v.  Galion  Gas  Co.,  29 
Oh.  St.  330,  338    (1876). 

Same  subject. 

Unless  expressly  restrained  by  its  charter, 
every  corporation  has  the  incidental  power  to 
make  any  contract  and  evidence  it  by  any 
instrument  that  may  be  necessary  and  proper 
to  accomplish  the  objects  for  which  it  was 
created. —  Straus  v.  Eagle  Ins.  Co.,  5  Oh.  St. 
59,  62   (1855). 

Form  of  contract. 

A  company  authorized  to  loan  its  money  on 
bonds  and  mortgages  may  take  and  enforce  a 
loan  on  a  note  and  mortgage. —  National 
Bank  v.  Ins.  Co..  41  Oh.  St.  1  (1884).  See 
Andes  Ins.  Co.  v.  McCoy,  6  A.  L.  R.  486 
(1877). 

Corporation  may  sue   for  slander. 

A  corporation  for  profit  may  maintain  an 
action  for  damages  against  a  person  who  has 
injured  the  reputation  and  business  of  such 
corporation  by  a  slander  of  its  managing 
agent. —  Cleveland  Police  Co.  v.  Bravton,  19 
O.  C.  C.  47    (1899). 

Contract  for  a  term  of  years. 

A  corporation  may,  if  desirable,  make  a 
eontrac.1  t<>  run  a  term  of  years. —  R.  R.  Co. 
v.  Furnace  Co.,  37  Oh.  St.  321    (1S81). 

Executed  contracts. 

Where  a  contract  not  illegal  has  been  exe- 
cuted and  fully  performed  on  the  part  of 
either  the  corporation  or  the  other  contract- 
ing  party,    neither    will    be    heard    to    object 


that  the  contract  and  such  performance  were 
not  within  the  legitimate  powers  of  the  cor- 
poration.—  Larwell  v.  Hanover,  etc..  Society, 
40  Oh.  St.  274,  285  (1883);  Havs  v.  Galion, 
etc..  Gas  Co.,  29  Oh.  St.  330,*  340  (1876); 
Hamilton,  etc.,  Hydraulic  Co.  v.  Cincinnati, 
etc.,  R.  R.  Co.,  29  Oh.  St,  341  (1876):  Arm- 
strong v.  Karshner,  47  Oh.  St.  276,  296 
(1890).  See  Norwalk  Bank  v.  Norwalk,  etc., 
Stamping  Co.,  6  Oh.  Dec.  70  (1897);  Hill 
v.  Cincinnati  Hotel  Co..  25  W.  L.  B.  425 
(1891).  See  contra,  Simpson  v.  Bldg.  Ass'n, 
38  Oh.  St.  349   (1882). 

Power  to  borrow  money. 

When  not  prohibited,  a  corporation  may 
borrow  money  to  carry  on  the  objects  of  its 
creation,  and  it  may  evidence  and  secure  the 
loan  by  appropriate  instruments. —  Larwell  v. 
Hanover,  etc..  Society,  40  Oh.  St.  274,  282 
(1883);  Hays  v.  Galion  Gas.  etc..  Co..  29  Oh. 
St.  330  (1876);  Ravmond  v.  Spring  Grove, 
etc.,  Ry.  Co.,  21  W.  L.  B.  103  (1889)  :  Burt  v. 
Rattle,  31  Oh.  St.  116  (1876);  Bosche  v.  To- 
ledo Displav  Horse  Co.,  14  O.  C.  C.  289  (1897) ; 
s.   c,  7  C.  D.  374. 

See  §  3256,  notes. 

Same    subject  —  accommodation. 

A  corporation  has  no  power  to  become  an 
accommodation  indorser  or  maker  of  commer- 
cial paper,  and  a  note  so  indorsed  is  void  as 
against  the  company  in  the  hands  of  one  hav- 
ing notice  of  the  intended  use  of  the  money. — 
Benedict  v.  Market  Nat.  Bank,  4  N.  P.  231 
(1897)  ;   s.  c,  6  Dec.  320. 

Same  subject  —  usurious  interest. 

Where  a  corporation  having  power  to  bor- 
row money  makes  a  loan  at  usurious  rates,  it 
cannot  plead  its  want  of  power  to  contract  for 
more  than  a  legal  rate,  but  it  must  stand  on 
the  same  footing  as  a  natural  person. —  Lar- 
well v.  Hanover,  etc.,  Society,  40  Oh.  St.  274 
(1883). 

Execution  of  notes. 

Corporate  notes  are  properly  executed  when 
they  have  a  clause  like  the  following: 

*•  In  testimony  whereof,  said  company  have 
caused    their    corporate    seal    to    be    attached 
hereto  and  signed  by  their   president   and  at- 
tested by  their  secretary,  this  1st  day,  etc. 
John  Jones, 
(Seal  of  company.)  Prest. 

Wm.  Smith, 

—  Hays  v.  Galion  Gas,  etc..  Co..  29  Oh.  St. 
330,  334   (1876). 

Power  to  purchase  negotiable  paper. 

A  corporation  having  power  to  invest  its 
funds  in  commercial  paper  ha?  no  power  to 
buy  a  note  for  the  sole  purpose  of  assisting  a. 
third  person  in  collecting  the  same  by  obtain- 
ing a  lien  upon  stock  of  the  corporation  owned 
by  the  maker,  the  corporation  having  a  loan 
on  its  stock  to  secure  debts  to  it  from  stock- 


General  Corporation-   Law. 


109 


Creation  and  Powers,  §  3239. 


holders.  Such  a  transaction  is  void  at  least  to 
the  extent  of  releasing  the  stock  owned  by  the 
maker  of  the  note  from  any  lien  in  favor  of 
the  company. —  White's  Bank  v.  Toledo  Ins. 
Co.,  12  Oh.  St.  001  (1861). 

Same  subject. 

An  insurance  company  has  no  power  to  buy 
notes  on  credit  for  the  purpose  of  setting  the 
same  off  against  claims  against  it. —  Straus 
v.  Eagle  Ins.  Co.,  5  Oh.  St.  59    (1855). 

Same  subject. 

A  corporation  has  no  power  to  purchase 
negotiable  paper  except  in  the  course  of  its 
legitimate  business. —  Cuyahoga  Furnace  Co. 
v.  Lewis,  C.  L.  Rec.  10   (1855). 

Power  to  charge  interest. 

Where  the  charter  of  a  company  is  silent  as 
to  the  rate  of  interest  to  be  charged  by  it  on 
loans,  a  stipulation  for  a  rate  higher  than  the 
maximum  fixed  by  the  usury  laws  of  the 
state  does  not  invalidate  the  loan.  The  prin- 
cipal, and  interest  thereon  at  the  legal  rate, 
may  be  collected. —  National  Bank  v.  Ins.  Co., 
41  Oh.  St.  1  (1884)  ;  Larwell  v.  Hanover,  etc., 
Society,  40  Oh.  St.  274  (1883);  Ewing  v. 
Toledo  Savings  Bank,  43  Oh.  St.  31  (1885); 
State  ex  rel.  v.  Urbana,  etc.,  Ins.  Co.,  14  Oh. 
6    (1846). 

Same  subject. 

Where  a  bank  charter  declares  that  it  shall 
not  take  more  than  six  per  cent,  interest  upon 
loans,  a  contract  for  a  greater  rate  of  interest 
is  totally  void. —  Bank  v.  Swayne,  8  Oh.  257 
(1838) ;  "Miami  Exporting  Co.  v.  Clark,  13 
Oh.  1  (1844)  ;  Preble  County  v.  Russell,  1  Oh. 
St.  313;  Bank  of  Wooster  v.  Stevens,  1  Oh. 
St.  233  (1853);  Russell  v.  Failor,  1  Oh.  St. 
329  (1853);  Union  Bank  v.  Bell,  14  Oh.  St. 
209  (1SG3);  Kilbreth  v.  Bates,  38  Oh.  St.  187 
(1882);  Lee  v.  Hartwell,  5  W.  L.  G.  9  (1800). 
See  Southern  Bank  v.  Gassoway,  1  Dis.  207 
(1856);  Kilbreth  v.  Wright,  1  W.  L.  B.  6 
(1876);  Creed  v.  Commercial,  etc.,  Bank,  11 
Oh.  489  (1842);  Spaulding  v.  Bank,  12  Oh.  544 
(1841);  Dunkle  v.  Renick,  G  Oh.  St.  527 
(1850);  McLean  v.  Lafayette,  3  McLean  (V. 
S.)  587    (1845)  ;  s.  c,  2  O.  F.  D.  412. 

Power    of  national  banks   to  charge  in- 
terest. 

La  Dow  v.  Bank,  51  Oh.  St.  234  (1894)  ; 
Shunk  v.  First  Nat.  Bank,  22  Oh.  St.  508 
(1872);  Bank  v.  Slemmons,  34  Oh.  St.  142 
(1877);  Hade  v.  McVav,  31  Oh.  St.  231 
(1877);  Allen  v.  First  Nat.  Bank,  23  Oh.  St. 
97  (1872):  First  Nat  Bank  v.  Garlinghouse, 
22  Oh.  St.  492    (1872). 

Power  to  hold  stock  in  other   corpora- 
tions. 

A  corporation  has  no  power  to  subscribe 
for  or  become  the  owner  of  any  portion  of  the 
capital  stock  of  another  corporation  unless 
authority    is    clearly    conferred    by    statute. — 


Franklin  Bank  v.  Commercial  Bank,  3G  Oh. 
St.  350  1 1881  i  :  Ry.  <  o.  v.  Lron  '  o.,  16  Oh.  St. 
ll  (1888)  :  Columbus,  etc.,  Ry.  Co.  v.  Burke, 
19  W.  L.  B.  27  i  1887)  ;  Hafei  v.  V  Y.  etc, 
R.  R.  Co.,  14  W.  L.  B.  68,  70  (1885)  ;  I 
v.  Buckeye  Brewing  Co.,  5]  Fed.  l~>';  [It 
s.  c,  7  0.  I'.  I).  I--.  (  ontra,  Smith  v.  New- 
ark, etc.,  R.  R.  Co.,  8  0.  C.  <  .  583  (1894); 
s.   c,  4  C.  D.  356. 

Same  subject  —  recovery  of  money  paid. 
Where  a  corporation  delivers  goods  or  pays 
money  in  payment  of  a  subscription  to  the 
stock  of  another  company,  it  cannot  recover 
the  same.  Ry.  Oo.  v.  Iron  Co.,  46  Oh.  St.  44 
(1888). 

Same  subject  —  prevention  of  loss. 

A  corporation  has  the  power  to  hold  stock 
of  another  corporation  if  necessary  to  secure 
itself  from  loss. —  See  Armstrong  v.  Heran- 
court  Brewing  Co..  20  W.   L.   15.  39.  40   (1891). 

Same  subject  —  building  and  loan  asso- 
ciations. 

A  corporation  has  power  to  subscribe  for 
shares  in  a  building  and  loan  association  for 
the  purpose  of  making  a  loan. —  Xorwalk 
Bank  Co.  v.  Norwalk.  etc..  Stamping  Co.,  14 
0.  C.  C.  1    (1897);  7  C.  D.  275. 

Power  to  deal  in  and  hold  its  own  stock. 

A  corporation  has  no  power,  unless  specially 
authorized,  to  purchase,  deal  in,  or  hold  its 
own  stock. —  Holcomb  v.  Gibson,  39  W.  L.  B. 
380  (1898);  Hubbard  v.  Riley,  3  W.  L.  B. 
434  (1878);  Shaw  v.  Ohio.  etc..  Installation 
Co.,  19  W.  L.  B.  292  (1888)  ;  Coppin  v.  Green- 
lees,  etc.,  Co.,  38  Oh.  St.  275  (1882)  ;  Benedict 
v.  Market  Nat.  Bank,  4  X.  P.  231  (1897); 
s.  c,  0  Dec.  320;  Wills  v.  Reed,  5  W.  L.  B.  79 
(1880);  Merchants'  Nat.  Bank  v.  Overman 
Carriage  Co..  17  O.  C.  C.  253  (1898);  s.  c,  9 
C.  D.  738;  State  ex  rel.  v.  Oberlin.  etc..  Loan 
Ass'n,  35  Oh.  St.  258  (1879);  Cleveland,  etc., 
R.  R.  Co.  v.  Kellev,  5  Oh.  St.  180,  193  (1855). 
See  State  v.  Franklin  Bank,  10  Oh.  91,  98 
(1840). 

Same  subject,  exception. 

One  exception  to  the  general  rule  is  that  a 
corporation  mayT  have  a  lien  on  its  own  stock 
in  equity  if  necessaiy  to  protect  itself  against 
loss,  as  where  directors  have  used  •corporate 
funds  to  pay  personal  debts  secured  by  tin- 
pledge  of  their  stock:  in  such  case  the  com- 
pany may  follow  the  funds,  and  if  necessary 
have  and  assert  a  lien  on  the  stock  pledged. — 
Columbus,  etc.,  Ry.  Co.  v.  Burke,  19  W.  L.  B. 
27   (1887). 

Same  subject,  exception. 

A  corporation  may  take  and  hold  its  own 
stock  if  necessary  to  settle  a  dispute;  as,  for 
instance,  where  a  corporation  has  exchanged 
stock  for  property,  it  may  re-exchange  if 
necessary  to  settle  a  dispute  a-  to  the  value 
or  merits  of  the  property.—  See  Sanderson  v. 


110 


Private  Corporations  in  Ohio. 


Creation  and  Powers,  §  3239. 


iEtna  Iron  Co.,  34  Oh.  St.  442  (1878);  Mor- 
gan v.  Lewis.  4G  Oh.  St.  1  (1888);  Beggio  v. 
Sandheger,  s  X.  P.  13,  15  (1900). 

Same   subject,  exception. 

A  corporation  may  buy  or  take  its  own 
stuck  if  necessary  to  secure  itself  from  loss  on 
a  pre-existing  debt. —  Taylor  v.  Miami  Ex- 
porting  Co.,  6  Oh.  176  (1833).  See  State  v. 
Franklin  Bank,   10  Oh.  91,  97    (1840). 

Same   subject,  exception. 

A  company  may  expend  money  to  take  up 
or  regain  stock  which  has  been  fraudulently 
issued,  where  there  is  reason  to  apprehend 
that  otherwise  great  loss  will  result  to  it.— 
Cincinnati,  etc.,  R.  R.  Co.  v.  Duckworth,  2  O. 
C.  C.  51S   (1887);  s.  c,  1  C.  D.  618. 

Same   subject,  exception. 

It  seems  that  a  corporation,  as  a  part  of  a 
contract  of  sale  of  shares  of  its  capital  stock, 
may  agree  to  buy  the  same  back  at  a  stated 
time,  and  the  contract  will  be  enforced,  there 
being  no  intervening  rights  of  creditors. — 
See  Zerkle  v.  Price,  5  N.  P.  480  (1898)  :  s.  c, 
7  Dee.  465;  Shoemaker  v.  Goshen  Township, 
14  Oh.  St.  569,  583  (1863);  Weeden  v.  Lake 
Erie,  etc.,  P.  P.  Co.,  14  Oh.  563  (1846).  See 
Stunt  v.  Newark  Weldless  Tube,  etc.,  Co.,  22 
O.  C.  C.  120   (1901). 

Same  subject,  exception. 

A  purchase  of  stock  by  a  corporation,  in 
consideration  of  the  retirement  of  the  owners 
from  the  business,  does  not  come  within  any 
of  the  exceptions  to  the  general  rule. —  Mer- 
chants' Nat.  Bank  v.  Overman  Carriage  Co., 
17  O.  C.  C.  253   (1898);  s.  c,  9  C.  D.  738. 

Same   subject,  exception. 

A  surrender  of  stock  to  a  corporation  by 
the  owner,  in  consideration  of  the  payment 
to  the  owner  of  a  proportion  of  the  earnings 
of  the  corporation,  does  not  come,  within  tue 
exceptions  to  the  general  rule,  and  is  ultra 
vires. —  Shaw  v.  Ohio,  etc..  Installation  Co., 
19  W.  L.  B.  292   (1S88). 

Same  subject,  exception. 

Where  an  agent  of  a  company  sold  its  stock 
with  the  agreement  that  the  purchaser  might 
buy  land  of  the  company  at  a  future  day  and 
pay  for  the  same  with  the  stock,  the  company 
cannot  enforce  part  of  the  agreement  and 
avoid  the  rest  because  of  want  of  authority  in 
the  agent.  It  must  execute  the  whole  con- 
tract or  refund  the  money.— Weeden  v.  Lake 
Erie,  etc.,  R.  R.   Co.,  14  Oh.  563    (1846). 

What  is  a  purchase  of  its  own  stock? 

Whore  a  corporation,  by  resolution,  author- 
ized the  purchase  of  a  part  of  its  own  stock 
by  a  person  as  trustee,  to  be  paid  for  by  its 
notes,  it  is  a  purchase  of  the  stock  by  and  for 
the  company. —  Merchants'  Nat.  Bank  v. 
Overman  Carriage  Co.,  17  O.  C.  C.  253  (1898) ; 
s.  ...  9  C.    1).  738. 


Power  to  form  partnership. 

A  corporation  has  no  power  to  enter  into  a 
partnership  with  an  individual  or  another 
corporation.— Merchants'  Nat.  Bank  v. 
Standard  Wagon  Co.,  6  N.  P.  264  (1899)  ;  s.  c, 
9  Dec.  380.  See  Pomeroy  Salt  Co.  v.  Davis,  21 
Oh.  St.  555,  573  (1871);  Andrews,  etc..  Co.  v. 
Smead,  etc.,  Co.,  7  N.  P.  439  (1895)  ;  Geurinck 
v.  Alcott,  06  Oh.  St.  94  (1902). 

What   joint   arrangements   or    combina- 
tions can  be  formed. 

See  Geurinck  v.  Alcott,  66  Oh.  St.  94 
(1902). 

Property  rights  of  corporations. 

The  property  of  a  corporation  is  "  private 
property  "  within  the  meaning  of  §  19  of 
article  1  of  the  constitution. —  Ohio  ex  rel.  v. 
Neff,  52   Oh.   St.  375    (1895). 

Power  to  buy  land. 

At  common  law  corporations  had  power  to 
buy  and  sell  land  unless  specially  restrained. 
The  modern  rule  is  to  allow  them  to  buy  and 
hold  such  lands  as  may  be  necessary  in  the 
transaction  of  their  business.  If  necessary  to 
obtain  materials,  a  company  may  buy  land. — 
Lessee  of  Overmever  v.  Williams,  15  Oh.  26 
(1846). 

Purchase    of    unnecessary    land. 

A  turnpike  company  cannot  acquire  the  fee 
of  land  occupied  by  it,  and  on  which  it  has  an 
easement  sufficient  for  its  purposes,  for  the 
purpose  of  preventing  a  railroad  company 
from  building  a  bridge  across  its  road. — 
Wooster  Turnpike  Co.  v.  C.  P.  &  V.  R.  R.  Co., 
15  O.  C.  C.  268  (1897)  ;  s.  c,  8  C.  D.  269. 

Same  subject. 

Where  a  company  purchases  real  estate  for 
an  unauthorized  purpose,  on  sale  by  it.  its 
vendee  acquires  good  title,  for  the  reason  that 
the  company's  vendor  and  the  company  are 
estopped  to  plead  a  want  of  power  in  the  com- 
pany.— Walsh  v.  Barton,  24  Oh.  St.  28,  42 
(1873). 

What  real  estate  necessary  to  business. 

Where  a  company  organized  to  do  a  safe- 
deposit  business  erects  a  large  building  and 
uses  only  a  trifling  space  for  safe-deposit 
business,  a  tenant  cannot  plead  ultra  vires  as 
a  defense  to  an  action  for  rent. —  Rector  v. 
Hartford  Deposit  Co.,  60  N.  E.  528  (111.) 
(1901). 

Right  of  third  party  to   question  title. 

Where  property  which  a  corporation  under 
certain  circumstances  is  authorized  to  acquire 
is  purchased  in  a  mode  or  for  a  purpose  not 
authorized,  the  title  of  the  corporation  to  the 
property  cannot  be  defeated  by  a  party  who  is 
a  stranger  to  the  agreement  by  which  the 
property  was  acquired,  and  who  is  not  injured 
by  the  transfer. —  Ehrman  v.  Union,  etc.,  Ins. 
<:o..  35  Oh.  St.  324  (1880);  Walsh  v.  Barton. 
24  Oh.  St.  28,  42   (1873).    See  Bank  v.  Mcln- 


General  Coki-ohation    Law. 


Ill 


Creation  and  Powers,  §  3239. 


tyre,  40  Oh.  St.  538   (1884);   Webb  v.   Moler, 
8  Oh.  548  (1838). 

Estoppel  of  licensees. 

Where  a  license  to  use  land  is  obtained 
from  a.  corporation,  the  licensee  is  estopped  to 
deny  the  power  of  the  corporation  to  own  the 
hind.  See  Hamilton,  etc..  Hydraulic  Co.  v. 
Cincinnati,  etc.,  R.  R.  Co.,  29  Oh.  St.  341 
(1870). 

Purchase  for  unauthorized  purpose. 

Where  a  corporation  purchases  land  and 
gives  its  miles  in  payment,  no  recovery  ean  be 
had  mi  the  miles  by  one  having  knowledge  of 
Hi"  circumstances,  if  the  land  was  boughl  for 
an  unauthorized  purpose.-  Vos  v.  Cedar 
Grove,   etc.,  Ass'n,  9   W.   L.   B.    194  (1883). 

Estoppel  of  company. 

A  corporation  having  bought  land  ordered 
sold  in  the  ease  in  which  it  was  not  a  party, 
cannot,  alter  acquiescing  in  the  confirmation 
of  the  sale,  set  up  on  proceedings  in  error  its 
waul  of  power  to  purchase. —  Bank  of  U.  S. 
v.  White,  Wright,  574    (1834). 

Power    of    hotel,    storeroom,    and    other 
companies  to  hold  land. 

See  §  3884a. 

Sale  of  entire  property  —  rescission. 

Where  a  number  of  companies  desired  to 
combine,  and  did  so  by  transferring  their 
property  to  a  new  corporation,  which  gave  in 
payment  such  number  of  its  shares  as  the 
value  of  the  property  entitled  each  to  have, 
one  of  the  companies,  on  becoming  dissatisfied 
with  the  arrangement,  cannot  maintain  an 
action  for  rescission  of  the  sale  on  ground  that 
the  sale  was  in  restraint  of  trade,  unless  it 
can  tender  back  all  the  shares  by  it  received. 
Sportsman  Shot  Co.  v.  American  Shot,  etc., 
Co.,  30  W.  L.  B.  87    (1893). 

Privilege  of  banking  —  when  conferred. 

A  grant  of  power  to  a  corporation  to  hold 
and  dispose  of  real  and  personal  estate,  to 
contract,  etc.,  does  not  authorize  it  to  do 
banking  business. —  State  v.  Granville,  etc., 
Society,   11  Oh.   1    (1841). 

Word     "  successor "     not     necessary     to 
perpetual  grant. 

Where  a  grant  is  made  to  a  corporation  ag- 
gregate,  which  may  be  perpetual,  the  word 
"successors"  is  not  necessary  to  create  a 
perpetuity  of  right,  or  a  fee  simple. —  Rail- 
way v.  Bosworth,  46  Oh.  St.  81    (1888). 

Conveyance    of    corporation  —  presump- 
tion. 

A  deed  of  a  corporation  in  due  form  carries 
with  it  the  presumption  that  the  executing 
officer  had  authority. —  Bank  v.  Flour  Co..  41 
Oh.  St.  552.  557  (1885);  Cincinnati,  etc..  R. 
R.  Co.  v.  Harter,  26  Oh.  St.  426    (1875). 

Same  subject  —  execution. 

Where  an  assignment  of  a  lease  in  the 
granting  clause  purports   to  be   made   in  the 


name  oi  .<  person  who  i-  therein  described  at 

i  be  i  rea  i  "i  an  incoi  porated  company  .  and 

such  named  person,  as  treasure]  oi  and  in 
behalf  of  Buch  company,  sets  hi-  hand  and  tin- 
seal  of  the  company  to  the  instrument,  the 
assignment  will  not  he  held  to  he  the  ael  <>f 
the  company. —  Norris  v.  Dains,  ■>-  Oh.  SI  215 
i  L894). 

Same  subject. 

A  deed   signed  and   sealed  by   the   president 
personally,  and  not   by  tne  corporation,  is  in- 

riled  mil   as  a   conveyance.      Lessee  of   1 1 
V.    I '.air.    1   Oh.  390    ('1824). 

Same  subject. 

In  the  absence  of  any  statutory  requirement 

to  the  contrary,  a  deed  of  conveyance  by  a 
banking  corporation  is  properly  executed  when 
its  cashier,  on  behalf  of  the  ban':  and  by  its 
authority,  allixes  (hereto  the  corporate 
and  subscribes  his  name  as  such  cashier,  and 
in  such  case  the  cashier  is  the  proper  person 
lo  acknowledge  the  deed. — •  Sheehan  v.  Davis. 
17   Oh.   St.   571    (1867). 

Same   subject  —  proof   of  execution. 

The  signature  of  the  president  of  a  corpora- 
tion to  a  deed  does  not  prove  itself,  nor  is  it 
proven  by  the  seal  of  the  corporation.  Tie 
execution  of  the  deed  should  lie  proved  if  ob- 
jected to.— Walsh  v.  Barton,  24  Oh.  St.  28,  P" 
41    (1873). 

Same   subject. 

See  paper  by  S.  H.  Wilder,  9  W.  L.  B.  253 

(1883). 

Stockholder  may  witness   deed. 

A  stockholder  of  a  corporation  may  be  a 
witness  to  a  deed  to  it. —  Johnson  v.  Turner, 
7  Oh.  pt.  2,  216  (1836);  Read  v.  Peoples,  etc., 
Co.,  Lucas  Probate  Court  (1900).  Affirmed  by 
Common  Pleas  Court;  s.  c,  23  O.  C.  C.  25 
(1901). 

Stockholder  may  act  as  notary. 

A  stockholder  of  a  company  may  olliciate 
as  notary  in  taking  the  acknowledgment  to  a 
deed  to  his  corporation. —  Norton  \.  Colum- 
bian, etc.,  Ass'n,  6  \V.  L.  B.  141  (188i) ;  Reed 
v.  Peoples,  etc.,  Co.,  Lucas  Probate  Court 
(1900). 

Proof    of    debt  i       chattel    mortgage. 

The  certificate  of  the  notary  may  obviate 
defects  in  the  proof  of  debt  in  a  chattel  mort- 
gage to  a  corporation. —  See  Gambrinus  Stock 
Co.  v.  Weber,  41  Oh.   St.   689    (1885). 

Corporate  seal. 

When  a  corporation  has  no  seal,  an  arbitra- 
tion bond  duly  authorized  by  the  directors 
and  signed  in  the  name  of  the  corporation  by 
the  president  with  his  private  seal  in  scroll 
is  valid  against  the  corporation.—  Western 
Female  Seminary  v.  Blair,  1  Dis.  372    (1857). 

Same  subject. 

The  seal  of  a  corporation  is  net  necessary  t" 
the  valid  execution  of  a  deed  of  the  corpora- 


112 


Private  Corporations  in  Ohio. 


Creation  and  Powers,  §  3239. 


I 


tion  in  this  state. —  See  East  End,  etc.,  Loan 
(  ...  v.  Eughey,  16  O.  C.  C.  19  (1898);  s.  c,  8 
C.  D.  724.  See  Payser  v.  Standard  Paving 
Brick  Co.   (Sup.  Ct.),  46  W.  L.  B.  84   (1901). 

Same  subject. 

See  paper  on  corporate  seals  by  Clement 
Bates.  38  W.  L.  B.  204  (1897),  and  by  F.  M. 
Coppock,  9  W.  L.  B.   19   (1893). 

Same  subject  —  presumption. 

The  seal  of  a  corporation  affixed  to  a  deed  is 
prima  facie  evidence  that  it  was  so  affixed  by 
the  authority  of  the  corporation. —  Sheehan 
v.  Davis,   17*  Oh.  St.  571   (1867). 

Power  of  alienation  —  exception. 

A  corporation  owing  duties  to  the  public 
has  no  power  to  alienate  its  property  or  fran- 
chises in  such  a  way  as  to  disable  itself  from 
performing  its  functions. —  Coe  v.  Columbus, 
etc.,  Ry.  Co.,  10  Oh.  St.  372  (1859)  ;  R.  R.  Co. 
v.  Furnace  Co.,  37  Oh.  St.  321,  331  (1881); 
Atkinson  v.  Marietta,  etc.,  R.  R.  Co.,  15  Oh. 
St.  21  (1864)  ;  Bank  of  Toledo  v.  Bond,  1  Oh. 
St.  622  (1853). 

Power  to  become  surety. 

A  corporation  has  no  power  to  become 
surety  on  a  bond  in  order  to  secure  business 
for  itself.  As,  for  instance,  a  company  desir- 
ing to  sell  materials  to  a  contractor  has  no 
power  to  become  surety  for  the  faithful  per- 
formance of  the  duties  of  such  contractor. — 
Humboldt  Mining  Co.  v.  American,  etc.,  Co., 
62  Fed.  356  (1894);  s.  c,  9  O.  F.  D.  153. 
Contra,  Glenville  v.  Prout,  6  N.  P.  152  (1899)  ; 
s.  c,  8  Dec.  99. 

Same   subject. 

A  corporation  has  no  power  to  pay  or  se- 
cure the  debt  of  a  third  person,  but  where  he 
is  its  creditor  it  may  rightly  pay  or  secure  his 
debt  when  the  real  object  and  effect  is  to  pay 
or  secure  the  indebtedness  of  the  company  to 
him  in  the  same  amount. —  Bank  v.  Flour  Co., 
41  Oh.  St.  552  (1885). 

Power  to  become  guarantor. 

A  corporation,  in  selling  bonds  not  its  prop- 
erty, has  no  power  in  law  to  guarantee  their 
payment.  But  the  corporation  may,  in  making 
the  sale,  enter  into  a  contract  to  repurchase 
them  at  the  same  price  on  demand,  and  such 
contract  will  be  enforced. —  First  Nat.  Bank 
v.    SchaefYer,    16   O.   C.    C.   457    (1898). 

Power  to  enter  into  trust  agreement. 

A  corporation  has  no  power  to  enter  into  a 
"  trust "'  agreement  whereby  its  affairs  are 
mil  managed  in  its  interests,  but  primarily  in 
the  interest  of  holders  of  trust  certificates. 
Such  an  agreement  tending  to  create  a  monop- 
oly is  contrary  1<>  public  policy. —  State  ex 
rel.  v.  The  Standard  Oil  Co.,  49  Oh.  St.  137 
I  L892). 


!  Power    to    pledge    personal    liability    of 
stockholders.  < 

A  corporation  has  no  power  by  any  act 
whatever  to  pledge  the  individual  liability  of 
its   stockholders. —  State   ex   rel.   v.    Sherman, 

!  22  Oh.  St.  411,  431   (1872). 

i 

Pleading  corporate   capacity. 

At  common  law  a  corporation,  when  it  sued, 
need  not  set  forth  its  title  in  the  declaration, 
but  if  issue  be  taken  it  must  show  by  evidence 
upon  trial  that  it  was  a  body  corporate,  hav- 
ing the  right  to  sue  in  the  character  and 
capacity  in  which  it  appears  in  court.  The 
code  does  not  require  more. —  Lewis  v.  Bank 
of  Ky.,  12  Oh.  146  (1843):  Cincinnati  Gas, 
etc.,  Co.  v.  Dodds.  29  W.  L.  B.  61  (1893); 
Brady  v.  Palmer,  19  0.  C.  C.  687  (1S89)  ;  s.  c, 
10  C.  D.  27  (1889);  Smith  v.  Weed  Sewing 
Machine  Co.,  26  Oh.  St.  562  (1875).  See 
Spence  v.  Ins.  Co.,  40  Oh.  St.  517  (1S84); 
Elektron  Mfg.  Co.  v.  Jones  Bros.  Co.,  8  O.  C. 

C.  311    (1894);    s.  c,  4   C.  D.  555;    Brady   v. 
National  Supply  Co.,  64  Oh.  St.  267   (1902). 

Pleading  corporate   existence  or  capac- 
ity necessary,  'when. 

Where  a  corporation  is  made  defendant  and 
its  existence  or  powers  are  material  in  the 
action,  the  same  must  be  pleaded. —  Brady  v. 
National  Supply  Co.,  64  Oh.  St.  267  (1901); 
Streit  v.  Hoster  Brewing  Co.,  12  Dec.  619 
(1902). 

Pleading  want  of  corporate  capacity. 

The  question  as  to  the  want  of  corporate 
existence  or  capacity  cannot  be  raised  on  a 
general  denial. —  See  Elektron  Mfg.  Co.  v. 
Jones  Bros.  Co.,  8  O.  C.  C.  311  (1894)  ;  Brady 
v.  National  Supply  Co.,  45  W.  L.  B.  176  (1901). 

Allegation    and    proof    of    existence    in 

C 1 '  i  Ml  X II  ill    C  t\  S  6  S 

See  Murphy  v.  State,  36  Oh.  St.  628  (1881); 
Burke  v.  State,  34  Oh.  St.  79  (1878):  Hamil- 
ton v.  State,  34  Oh.  St.  82  (1S78)  ;  Calkins  v. 
State.  18  Oh.  St.  366  (1S68);  Reed  v.  State, 
15  Oh.  217    (1846). 

Misnomer    of    corporations. 

Where  a  corporation,  whose  name  is  com- 
posed of  several  words,  is  sued  by  a  name  in 
which  a  word  in  the  corporate  name  is 
omitted,  such  omission  or  misnomer,  unless 
pleaded  in  abatement,  will  be  disregarded  by 
the  court. —  State  ex  rel.  v.  Telephone  Co.,  36 
Oh.  St.  296  (18S0);  Cleveland,  etc.,  R.  R.  Co. 
v.  Fredenbur,  3  O.  C.  C.  23   (1887)  ;  s.  c,  2  07 

D.  15.     See  Noblet  v.  Ohio,  etc..  R.  R.  Co.,  1 
W.  L.  B.  346   (1876). 

Security    for    costs,    insolvent    corpora- 
tion must  give. 

See  §  5340  (1). 

Stockholders     as     witnesses     under     old 
law. 

See  Law&on  v.  Farmers'  Bank,  1  Oh.  St.  206 

(1853). 


General  Corporation    Law. 


113 


Corporations  not  for  Profit  —  Trustees,  Members,   S§   3240,  3241. 


Corporation  is  a  person. 

The  words  "person"  and  "persons,"  as 
used  in  §  2485,  Revised  Statutes,  include 
private  corporations. —  Cincinnati,  etc.,  Gas 
Co.  v.  Avondale,  43  Oh.  St.  257  (1885).  See 
State  v.  Cincinnati  Fertilizer  Co.,  24  Oh.  St. 
Oil  (1874). 


Powers    of    company    formed    to    repair 
boats. 

See  State  ex  rel.  \.  Southwestern,  etc.,  Co., 

23  Oh.   St.   166    (1872). 

Religious,   literary,   or   scientific   society 
may  lease  theatre. 
Sec  Catholic  Institute  v.  Gibbons,  3  W.  L. 

B.  581   (1878). 


§  3240.  FIRST  ELECTION  OF  TRUSTEES  IN  CORPORATION  NOT  FOR 
PROFIT;  TERM  AND  NUMBER.— A  majority  of  the  subscribers  of  the  articles  of 
incorporation  formed  for  a  purpose  other  than  profit,  may  elect  not  less  than  five 
trustees  of  the  corporation  who  shall  hold  their  office  till  the  next  annual  meeting, 
or  until  their  successors  are  elected  and  qualified;  but  in  the  case  of  religious  cor- 
porations and  institutions  incorporated  for  the  purpose  of  promoting  education,  science 
or  art  the  regulations  of  such  corporations  may  provide  for  the  length  of  time  said 
trustees  shall  hold  their  offices,  the  term  thereof  not  to  exceed  in  number  of  years 
the  number  of  such  trustees;  provided,  that  lodges,  societies,  or  bodies  of  an/  secret 
or  benevolent  order  incorporated  under  the  laws  of  this  state,  may  elect  such  num- 
ber ol  trustees,  not  less  than  three,  as  may  be  provided  in  the  laws  or  regulations 
governing  such  lodge,  society,  or  body,  and  the  election  of  such  trustees  may  be 
held  at  the  time  specified  in  such  laws  or  regulations.  Provided  further,  that  the 
members  of  any  corporation  heretofore  organized,  or  that  may  hereafter  be  organ- 
ized, for  the  purpose  of  owning  and  conducting  a  hospital  for  sick  and  disabled, 
persons,  may  provide  for  the  election  of  not  less  than  five  nor  more  than  fifteen  trus- 
tees who  shall  serve  during  life,  and  also  that  in  case  of  vacancy  in  the  board  of 
trustees  of  such  association  by  death,  resignation  or  otherwise,  the  remaining  mem- 
bers of  such  board  may  fill  such  vacancy.  In  case  of  a  corporation  heretofore  organ- 
ized for  such  purpose  such  regulations  providing  that  the  trustees  shall  hold  office 
during  life,  may  be  adopted  at  any  annual  meeting,  or  at  any  special  meeting  of  the 
association  duly  and  regularly  called;  but  notice  of  such  proposed  change  in  the  regu- 
lations shall  be  published  for  three  successive  weeks  in  some  newspaper  published  and 
of  general  circulation  at  the  place  where  such  hospital  is  located.  (May  10,  1902, 
95  v.  547;  April  6,  1888,  85  v.  166;  March  26,  1883,  80  v.  79;  April  20,  1881,  78  v. 
200;  R.  S.  1880.) 


Repeals. 

The  act  of  April  20,  1881,  78  v.  200,  is  not 
repealed  in  express  terms  by  the  act  of  March 
26.  1S83,  SO  v.  79,  nor  is  the  latter  act  re- 
pealed by  the  act  of  April  6,  1888,  85  v.  166. 


Tenure  of  office. 

Neither  the  incorporators  nor  the  trustees 
first  elected  are  authorized  to  adopi  a  by-law 
or  regulation  providing  that  they  shall  hold 
office  during  life,  and  in  case  of  vacancy  fill 
the  same  by  appointment. —  State  v.  Standard 
Life  Ass'n,  38  Oh.  St.  281    (1882). 


§  3241.  MEMBERSHIP  IN  CORPORATION  NOT  FOR  PROFIT.  RELIGIOUS. 
SECRET  AND  BENEVOLENT  SOCIETIES.—  The  subscribers  of  such  articles  of 
incorporation  shall  cause  the  same  to  be  copied  into  a  book  which  they  shall  provide, 
and  which  shall  be  the  property  of  the  corporation;  and  a  person  having  the  qualifi- 
cations prescribed  by  the  corporation,  may  become  a  member  by  subscribing  his  name 
to  such  copy;  provided,  that  when  the  incorporators  of  a  corporation,  now  or  hereafter 
formed,  are,  or  shall  be  members  of  a  church,  religious,  secret  or  benevolent  society, 
and  have  signed  or  shall  sign  articles  for  the  purpose  of  enabling  such  church,  relig- 
ious, secret  or  benevolent  society  to  become  incorporated,  any  person  who  is  or  shall 
become  a  member  of  such  church,  religious,  secret,  or  benevolent  society,  in  good 
standing,  shall  by  virtue  of  such  membership  be  a  member  of  such  corporation,  and 
entitled  to  vote  at  all  meetings  of  such  corporation,  for  the  election  of  officers  or  other 

LAW    GOV.    PRIV.    COR.   8. 


114 


Private  Corporations  in  Ohio. 


Corporations  not  for  Profit  —  Trustees,  Members,   §  3241. 


purpose,  anything  in  the  preceding  section  to  the  contrary  notwithstanding. 
16.  1887.  84  v.  85;  May  15,  1886,  83  v.  168;  R.  S.  1880.) 


(March 


Membership    in    mutual    protective    so- 
cieties. 

After  a  mutual  protection  association  has 
been  formed  under  §  3630,  the  members 
thereof  are  those  mutually  engaged  in  promot- 
ing the  purposes  of  the  organization,  and  who, 
by  virtue  of  their  relation  to  the  corporation, 
are  entitled  to  protection.— State  v.  Standard, 
etc.,  A- n.  38  Oh.  St.  281  (1S82). 

Right  to  vote. 

Where  the  right  to  vote  upon  all  matters 
touching  the  interests  of  the  corporation  is 
secured  by  the  charter  to  each  member,  a  fur- 
ther provision  giving  to  pew  owners  the  priv- 
ileges of  membership  does  not  restrict  the 
right  of  voting  to  them,  but  it  belongs  to 
every  one  admitted  to  the  society  by  a  major- 
it  v  of  the  members  of  the  congregation. — 
Wiswell  v.  First,  etc.,  Church,  14  Oh.  St.. 31 
(1862). 

Rights  of  majority. 

Where  a  religious  society  purchases  land, 
and  the  title  vests  in  it  in  fee  as  a  corpora- 
tion, the  majority  of  the  society  have  a  right 
to  control  its  use  and  occupation,  of  which 
they  cannot  be  deprived  by  any  supposed  error 
of  doctrine. —  Keyser  v.  Stansifer,  6  Oh.  363 
(1834). 

Secession,  rights  of  parties. 

Members  who  secede  from  an  organization 
thereby  forfeit  all  right  to  any  part  of  the 
church  property;  the  question  as  to  whether 
or  not  there  has  been  a  secession  is  a  mixed 
question  of  law  and  fact,  to  be  decided  from 
all  the  circumstances.  There  may  be  an 
agreed  separation  without  forfeiture. —  Wis- 
well v.  First,  etc.,  Church,  14  Oh.  St.  31 
(1862);  Ex  parte  Shoup,  16  W.  L.  B.  71 
(1886);  Methodist,  etc.,  Church  v.  Wood,  5 
Oh.  283   (1831). 

Property  rights. 

By  becoming  a  member  of  a  corporation  not 
for  profit,  one  does  not  acquire  a  severable 
right  to  any  of  its  property,  but  merely  the 
right  of  a  member  so  long  as  he  remains  a 
member.  ELershiser  v.  Williams,  24  W.  L. 
B.  314  (1890). 

Inherent  power  of  corporation  to  expel. 

A  corporation  has  inherent  power  to  re- 
move or  expel  a  member  for  causes  which  are 
qo1  -<-i  forth  in  the  constitution  or  by-laws. 
One  of  those  causes  may  be  where  the  party 
has  committed  3ome  acl  which  tends  to  the 
injury  or  destruction  of  the  corporation. — 
Cheney  v.  Ketcham,  5  X.  P.  L39  (1897);  s.  c, 
7  Dec.  183;  State  ex  rel.  v.  Society,  8  A.  L.  R. 
628  (1880);  b.  c,  5  W.  L.  B.  124;  State  ex 
rel.  \  German,  etc.,  Society,  2  W.  L.  B.  125 
(1877);  Hershiser  v.  Williams,  24  W.  L.  B. 
314   (1890). 


Proceedings  to  expel. 

No  member  of  a  corporation  shall  be  dis- 
franchised without  the  agency  of  a  tribunal 
competent  to  investigate  the  cause,  and  pro- 
nounce the  sentence  of  loss  of  right.  Where 
the  charter  prescribes  the  terms  under  which 
the  power  of  amotion  is  to  be  exercised,  they 
must  be  pursued;  where  the  organic  law  is 
silent,  the  corporation  itself  possesses  the  in- 
herent power  to  ascertain  and  declare  the  for- 
feiture either  of  franchise  or  office,  but  the 
proceeding  is  essentially  adversary  in  its  char- 
acter, and  cannot  be  conducted  ex  parte.  It  is 
essential  to  its  validity  that  the  parties  should 
be  duly  summoned  and  given  reasonable  notice 
and  an  opportunity  to  be  heard,  and  the  facts 
investigated  and  a  determination  reached  by 
the  tribunal. —  State  ex  rel.  v.  Bryce,  7  Oh. 
pt.  2,  S2  (1836);  Cheney  v.  Ketcham,  5  N.  P. 
139  (1897);  s.  c,  7  Dec.  183. 

Expulsion     from     corporation     not     for 
profit  having  capital  stock. 

A  great  many  clubs  and  societies  are  organ- 
ized as  corporations  not  for  profit  with  a 
capital  stock;  in  such  cases  the  property  in- 
terest represented  by  the  stock  is  incidental 
to  the  personal  interest  or  membership,  and 
there  may  be  an  expulsion  from  membership. 
—  Cheney  v.  Ketcham,  5  N.  P.  139,  140 
(1897);  s.  c,  7  Dec.  183. 

Power  of  subordinate  committee. 

The  power  of  expulsion  from  membership 
cannot  be  delegated  to  and  exercised  by  a 
committee  or  subordinate  branch  of  the  cor- 
poration except  upon  clear  and  express  author- 
ity fairly  and  reasonablv  exercised. —  Cheney 
v.  Ketcham,  5  N.  P.  139*  (1897)  ;  State  ex  rel. 
v.  Fraternal,  etc..  Circle,  9  O.  C.  C.  364 
(1895)  ;  s.  c,  6  C.  D.  385:  Blumenthal  v.  Cin- 
cinnati, etc.,  Exchange,  7  W.  L.  a.  327  (1882). 

Remedies  for  expulsion. 

The  appropriate  remedies  for  an  illegal  ex- 
pulsion are  either  injunction  or  an  action  for 
damages.  Mandamus  is  not  an  appropriate 
remedy. —  Cheney  v.  Ketcham,  5  N.  P.  139 
(1897)';  s.  c,  7  Dec.  183;  State  ex  rel.  v. 
Zesch,  5  N.  P.  274  (1898);  s.  c,  7  Dec.  298; 
Fraternal,  etc.,  Circle  v.  State,  5  Dec. 
754  (1897);  Blumenthal  v.  Cincinnati,  etc., 
Exchange,  7  W.  L.  B.  327  (1882);  State  ex 
rel.  v.  Fraternal,  etc.,  Circle,  9  O.  C.  C.  364 
(1895);  s.  c,  6  C.  D.  385;  s.  c.  (Sup.  Ct.),  5 
Dec.  754. 

■When  injunction  granted. 

An  injunction  to  restrain  wrongful  expul- 
sion may  be  obtained  where  the  benefits  to  be 
derived  from  the  corporation  are  not  deter- 
minable by  any  rules  that  could  be  given  to 
the  jury  in  fixine;  their  monev  value. —  State 
ex  rel. 'v.  Zesch,  "'5  N.  P.  274' (1898);  s.  c,  7 
Dec.  298. 


General  Corporation  Law, 


115 


Corporations  for  Profit  —  Subscription   to   Stock,   {j   3242. 


Injunction    against    threatened    expul- 
sion. 

Am  injunction  will  not  be  granted  to  re- 
strain threatened  expulsion  from  an  organiza- 
tion for  the  reason  thai  the  court  must  pre- 
sume that  if  any  proceedings  are  taken  they 
will  be  regular,  and  that  the  complainant  can 
obtain  relief  within  the  organization.  I  hi  - 
shiser  v.  Williams.  6  O.  C.  ( '.  117;  3.  c,  3  C.  D. 
389;  s.  c,  53  Oh.  St.  G33  (1895). 

When  peremptory  writ  not  granted. 

Peremptory  writ  will  not  be  granted  to  re- 
store a  member  of  a  corporation  informally 
expelled  to  his  rights  as  a  member  when  he 
would  at  once  be  formally  expelled. —  State 
ex  rel.  v.  Society,  8  A.  L.  R.  628  (1880)  ;  s.  c, 
5  W.  L.  B.  124;  State  ex  rel.  v.  Algemeiner, 
etc.,  Verein,  b  W.  L.  B.  295   (1878). 

Fraud  and  collusion. 

A  court  of  eqviity  will  set  aside  a  judgment 
of  a  tribunal  ordering  the  expulsion  of  a  mem- 
ber if  such  order  was  brought  about  through, 
fraud  and  collusion. —  Kent  v.  Odd  Fellows, 
etc.,  Ass'n,  14  W.  L.  B.  237  (1885).  See 
Blumenthal  v.  Cincinnati,  etc.,  Exchange,  7 
W.  L.  B.  327   (1882). 

Irregularities  in  proceedings. 

A  court  will  not  interfere  with  proceedings 
to  expel  a  member  because  of  irregularities  if 
there  has  been  substantial  compliance  with 
the  law. —  State  ex  rel.  v.  Cincinnati,  etc., 
Exchange,  4  N.  P.  244  (1897);  s.  c,  6  Dec. 
363;  Hershiser  v.  Williams,  24  W.  L.  B.  314 
(1890)  ;  State  ex  rel.  v.  Algemeiner,  etc., 
Verein,  3  W.  L.  B.  295  (1878). 

"Waiver?  of  right  to  order  of  restoration. 

The  bringing  of  an  action  for  damages  for 
illegal  expulsion  from  a  corporation  is  a 
waiver  of  the  right  to  a  writ  of  mandamus. — 


State  ex    rel.   \.   Slavonska    Lipa,  2s  oh    St. 
66S    (1876). 

Waiver  of  rights  of  member. 

A   member  on   trial   may   waive  anj    •■>   the 
provisions  -of  I  he  rules  and  regulal  ion    oi  I  lie 
i  orporal  ion.      Mate  ex  rel!  v.  <  incinnal  i 
Exchange,  4  N.  P.  244   (1897);    -.  c,  6   Dec 
:;t;:;. 

What    is    prejudicial    conduct    of    mem- 
ber? 

It    will    be  left  to  the  organization    t<>   gay 
what  conduct  is  prejudicial   to  its  interests. 
Hershiser    v.     Williams,    21     W.     I.,     i;.   :;li 
(1890).     See  State  ex  rel.  \.  German,  ett 
ciety,    2    W.    L.   B.    125    (1877). 

Must  exhaust   remedies  within  the  cor- 
poration. 

Until  a  member  who  complains  of  bis  ex- 
pulsion has  exhausted  all  the  judicatories  of 
the  order,  society  or  corporation,  i  he  rivil 
courts  will  not  take  cognizance  of  his  ease,  and 
this  is  so  even  if  the  person  before  whom  the 
appeal  should  be  heard  is  adverse  and  has 
previously  voted  against  the  member.  Slate 
ex  rel.  v.  Castle,  10  W.  L.  B.  2  (1S83)  ;  Kent 
v.  Odd  Fellows,  etc.,  Ass'n,  14  W.  L.  B.  237 
(1885);  Hershiser  v.  William-,  6  <>.  C.  C. 
147;  s.  c,  3  C.  D.  389;  s.  c,  53  Oh.  St.  633 
(1895).  See  Baltimore,  etc..  R.  R.  Co.  v. 
Stankard,  56  Oh.  St.  224  (1897). 

Same  subject,  exception. 

Where  the  body  acting  as  a  tribunal  is 
without  authority,  or  where  no  appeal  is  pro- 
vided for,  or  where  the  action  taken  i-  void, 
as,  for  instance,  where  an  expulsion  is  ordered 
without  trial,  the  courts  may  be  resorted  to 
without  appealing  within  the  organization. — 
Cheney  v.  Ketcham,  5  N.  P.  139  i  L897)  ;  s.  c, 
7  Dec'.  1S3. 


§  3242.  CORPORATIONS  FOR  PROFIT;  TO  GIVE  NOTICE  OF  OPENING 
BOOKS  FOR  SUBSCRIPTION;  NOTICE  MAY  BE  WAIVED.— The  persons  named  in 
the  articles  of  incorporation  of  a  corporation  for  profit,  or  a  majority  of  them,  shall 
order  books  to  be  opened  for  subscription  to  the  capital  stock  of  the  corporation  at  such 
time  or  times  and  at  such  place  or  places  as  they  may  deem  expedient,  and  of  the 
time  and  place  of  opening  of  which  books  at  least  thirty  days'  notice  shall  be  given 
by  publication  in  a  newspaper  published  or  generally  circulated  in  the  county  or 
counties  where  books  of  subscription  are  to  be  opened;  provided,  that  such  notice 
may  be  waived  in  writing  by  all  the  incorporators,  and  such  waiver  shall  be  entered 
or  copied  in  the  records  of  such  corporation.  (April  6,  1891,  88  v.  280;  March  5, 
1883,  80  v.  42;  R.   S.   1880;  May  1,   1852,  50  v.  274,  §  9.) 


Publication  of  notice. 

Only  one  publication  is  required  thirty  days 
before  the  date  set,  and  it  need  not  be  for 
thirty  days  successively  before  that  date.  The 
paper  should  be  printed  in  the  English  lan- 
guage. —  Muskingum  Turnpike  Co.  v.  Ward. 
13  Oh.  120  (1844):  Craig  v.  Fox.  16  Oh.  563, 
566  (1847);  Cincinnati  v.  Purcell,  26  Oh.  St. 
49    (1875). 


Waiver  of  publication  —  proof. 

When  the  authenticity  and  genuineness  of 
the  records  of  a  corporation  have  been  proved, 
it  is  competent  to  prove  by  such  record-  that 
the  incorporators  have  waived  notice  by  pub- 
lication of  the  opening  of  stock  books. —  To- 
ledo, etc..  Rv.  Co.  v.  Toledo,  etc.,  Ry.  Co.,  6 
O.  C.  C.  362^  392   (1S92)  ;   s.  c,  3  G  D.  493. 


116 


Private  Corporations  in  Ohio. 


Corporations   for  profit  —  Subscription   to     Stock,  §  3242. 


Verbal  subscriptions  not  binding. 

A  subscription  to  stork  in  a  corporation 
must  be  in  writing  and  mutually  binding  on 
both  parties.  A  recovery  cannot  be  had  on  a 
verbal  agreement  to  take  shares,  in  the  ab- 
sence  of  estoppel. —  Fanning  v.  lus.  Co.,  37 
Oh.  St.  339   (1881).' 

Delivery  of  subscription  —  proof. 

Where  a  subscription  was  delivered  reading 
as   follows: 

"We,  the  undersigned,  heirs  of  Alex. 
Brown's  estate,  agree  to  take  one  thousand 
dollar-  in  stock  in  the  Mansfield,  etc.,  R.  R. 
(  o.  it  it  comes  near  enough  to  the  town  of 
Weston  to  suit  the  convenience  of  said  town," 
it  was  held  that  parol  evidence  was  admissi- 
ble to  prove  the  delivery  of  the  subscription 
and  thus  establish  the  mutuality  of  the  agree- 
ment, and  the  implied  agreement  on  the  one 
hand  to  pay,  and  on  the  other  to  issue  stock. 

—  Mansfield,  etc..  E.  R.  Co.  v.  Brown,  26  Oh. 
St.  223   i  L875). 

Subscription  books. 

This  section,  so  far  as  it  concerns  the  open- 
ing of  hooks,  must  he  deemed  directory,  and  a 
subscription,  unexceptional  in  other  respects, 
will  he  valid  if  made  on  a  separate  sheet  of 
paper.— Ashtabula,  etc.,  R.  R.  Co.  v.  Smith, 
l.'i  oh.  St.  328   (1S64). 

Construction  of  subscriptions. 

The  ordinary  rules  of  construction  appli- 
cable to  contracts  apply  to  subscriptions;  for 
instance,  all  pails  must  be  taken  into  consid- 
eration so  as  to  make  the  whole  consistent. — 
Lesher  v.  Karslmer.  47  Oh.  St.  302,  305 
i  1890). 

Statutes  form  a  part  of  subscriptions. 

The  statutes  in  force  at  the  time  subscrip- 
tion- arc  made  enter  into  and  form  a  part  of 
such  subscriptions,  and  the  subsequent  exer- 
cise  of  the  powers  given  the  company  will  not 
affeel  the  subscriptions. —  Mansfield,  etc.,  R. 
I:.  Co.  v.  Stout.  21!  Oh.  St.  241,  254  (1875); 
Jewel  t  v.  Valley  Rv.  Co.,  34  Oh.  St.  001 
(1878);  Armstrong  v.  Karshner,  47  Oh.  St. 
270  (1890  :  Compton  v.  Ry.  Co.,  45  Oh.  St. 
592,  620   (1888). 

Interest  on  subscriptions. 

Where  interest  i-  stipulated  to  be  paid  on 
the  amount  paid  on  subscriptions  of  stock 
until  the  road  i-  completed,  the  interest  is  not 
payable  excepl  out.  of  profits. —  Ryan  v.  Miami 
Valley  Ry.  I  lo.,  in  A.  L.  \l.  263  (1881)  ; 
Wood  v.  Pearce,  2  Dis.  HI  I  L858)  ;  Paines- 
villc.  etc.,  l:.  U.  (o.  v.  King,  17  Oh.  St.  534 
(1867). 

Offer  to  subscribe. 

Until  some  action  is  taken  on  a  subscription 
to  stock  it  i-  revocable,  their  being  no  mutual- 
ity, and  it  being  merely  an  offer  to  subscribe. 

—  Wallace    v.    Townsend,    43    Oh.    St.    537 


(1S85).      See   Armstrong  v.    Karshner,   47   Oh. 
St.  276,  206   (1S90). 

Same  subject  —  revocation. 

An  offer  in  writing  to  subscribe  to  the  cap- 
ital stock  of  a  railroad  company  is  revocable 
at  the  option  of  the  party  making  such  offer 
at  any  time  before  its  delivery  to  and  accept- 
ance by  such  company,  and  his  death  before 
such  delivery  and  acceptance  works  such  revo- 
cation.—  Wallace  v.  Townsend,  43  Oh.  St.  537 
(1S85). 

Power  to  receive   subscriptions  payable 
in  land  or  property. 

See  Noble  v.  Callender,  20  Oh.  St.  199 
(1870);  Goodin  v.  Evans,  18  Oh.  St.  150 
(1868)  ;  Gates  v.  Tippecanoe  Stone  Co.,  57  Oh. 
St.  60,  75   (1897). 

Sales  of  stock  by  corporation. 

In  the  absence  of  express  provision,  the 
duly  organized  corporation  has  the  same 
power  of  disposition  over  its  unissued  and 
unsubscribed  capital  stock  as  an  ordinary 
owner  has  over  his  property.  Such  stock  can 
be  used  in  payment  of  debts  or  exchange  for 
labor  or  property. —  See  Davton,  etc.,  R.  R. 
Co.  v.  Hatch.  1  Dis.  84  (1855)  :  Peter  v.  Union 
Mfg.  Co.,  r^>  Oh.  St.  181,  197  (1897);  Sims  v. 
Street  R.  R.  Co.,  37  Oh.  St.  556,  565  (1882). 

"What      conditional      subscriptions      are 
contrary  to  public  policy. 

Whenever  a  subscriber  to  stock  of  a  com- 
pany attempts  to  secure  in  his  contract  of 
subscription  by  conditions,  advantages  or 
privileges  not  common  to  all  other  stockhold- 
ers or  subscribers,  and  without  their  knowl- 
edge or  consent,  such  conditions  are  contrary 
to  public,  policy  and  can  have  no  effect  to 
limit  in  any  way  the  contract  of  subscription 
and  in  so  far  as  it  attempts  to  do  so  it  will 
he  treated  as  a  fraud  on  other  subscribers. 
See  Stunt  v.  Newark  Weldless  Tube,  etc.,  Co., 
22  O.  C.  C.  120  (1901)  :  Noble  v.  Callender.  20 
Oh.  St.  199  (1870);  Henry  v.  Vermillion,  etc.. 
R.  R.  Co.,  17  Oh.  187   (1848). 

Conditional    subscription  —  when    abso- 
lute. 

Corporations  in  this  state  have  power  to  re- 
ceive and  accept  conditional  subscriptions,  but 
until  the  conditions  in  such  subscriptions  are 
performed  they  cannot  become  absolute  and 
take  full  effect  as  stock  subscriptions. —  Ash- 
tabula, etc..  R.  R.  Co.  v.  Smith.  15  Oh.  St.  :!2S 
(1864);  Chamberlain  v.  Painesville,  etc..  R. 
I;.  Co.,  15  Oh.  St.  225  11864):  R.  R.  Co.  v. 
Hinsdale.  45  Oh.  St.  556  (1888);  Armstrong 
v.  Karshner.  47  Oh.  St.  276.  296  (1890).  See 
Lesher  v.  Karshner,  47  Oh.  St.  302  (1890). 

Verbal  conditions. 

In  the  absence  of  fraud  or  mistake,  condi- 
tions to  subscriptions   must   be  in  writing  to 


General  Corporation  Law. 


117 


Corporations   for  Profit  —  Subscription  to  Stock,    g    3243. 


be  part,  of  the  contract.      Freeman   v.   Muth, 

:;   \\.   L.   B.  914   (1878). 

Waiver   of   conditions. 

The  giving  of  a  note  in  payment  by  a  sub- 
scriber is  prima  facie  waiver  of  conditions 
precedent. —  Dayton,  etc.,  R.  K.  Co,  v.  Hatch. 
1  Dis.  st  (1855);  Chamberlain  v.  Paineaville, 
etc.,  R.  E.  Co.,  15  Oh.  St.  225  (1864);  Four 
Mile  R.  R.  Co.  v.  Bailey,  18  Oh.  St.  208 
(1868). 

Same   subject. 

The  payment  of  the  first  installment  on  a 
subscription  and  voting  the  stock  at  an  elec- 
tion of  directors,  and  acting  as  an  oilicer  of 
the  company  is  a  waiver  of  conditions  con- 
tained in  a  stock  subscription. —  Dayton,  etc., 
R.  E.  Co.  v.  Hatch,  1  Dis.  84   (1855). 

Conditions  subsequent. 

It  seems  that  conditions  subsequent  in  a 
stock  subscription  should  be  viewed  as  a  stipu- 
lation merely;  and  in  case  of  non-performance 
the  parties  should  be  left  for  redress  to  the 
ordinary  remedies  for  breach  of  contract. — 
Chamberlain  v.  Painesville.  etc..  E.  E.  Co..  I."> 
Oh.  St.  225.  247  (1864).  See  Zerkle  v.  Price. 
5  N.  P.  480  (1898);  Shoemaker  v.  Goshen 
Township.  14  Oh.  St.  5G9,  583  (1863):  Stunt 
v.  Newark  Weldless  Tube,  etc.,  Co.,  22  0.  C. 
C.  120  (1901). 

Conditional  subscriptions  —  as  to 

amount  to  be   subscribed. 

A  subscription  to  stock  not  to  be  binding 
until  a  certain  amount  is  subscribed  is  a  valid 
absolute  subscription  when  the  amount  speci- 
fied is  obtained.— Emmitt  v.  Springfield  E.  E. 
Co.,  31  Oh.  St.  23  (1876). 

Same   subject  —  first-class  road. 

Eailroad  companies  in  this  state  are  not 
required  to  construct  first-class  roads  before 
they  can  collect  subscriptions  unless  the  sub- 
scriptions contain  stipulations  to  that  effect. 


•Armstrong    v.    Karshner,    47    <  lb     31     276 
(1890). 

Same  subject  —  depot  to  be  built. 

\\  here  a  subset  ip1  ion  contained  .i  eondil  ion 
as  to  the  location  of  the  road,  and  provided 
that  a  depot  be  located  al  a  certain  point,  it 
was  held  thai  the  clause  referring  to  the 
depot  was  a  mere  stipulation,  and  qo1  a  con 
dit ion  precedent.  -Chamberlain  \.  Paines- 
ville, etc.,  R.  R.  Co.,  15  Oh.  St.  225     L864). 

Same  subject  —  road  to  pass  through  — 
road   to    be   built. 

Where  the  condition  in  a  subscription 
that  the  road  was  to  pass  through  a  certain 
place  or  to  be  built  at  a  certain  place,  per- 
manent location  of  the  road  without  its 
construction  on  the  route  designated  is  a  com- 
pliance with  the  condition. —  Ashtabula,  etc., 
E.  E.  Co.  v.  Smith.  IT.  Oh.  St.  328  (1864); 
Mansfield,  etc..  E.  E.  Co.  v.  Stout.  26  oh.  St. 
241,  254  (lS7f));  Warner  v.  Callender.  20  Oh. 
St.  190  (1870);  Chamberlain  v.  Painesville, 
etc.,  R.  R.  Co..  15  Oh.  St.  225  (1864),  See 
Elder  v.  Bellaire.  etc..  Ey.  Co.,  1  O.  C.  C.  256 
(1865);  s.  c,  1  C.  D.  140. 

Same  subject  —  road  to  be  operated  and 
maintained. 

See  Port  Clinton  E.  E.  Co.  v.  Cleveland, 
etc.,  E.  R.  Co.,  13  Oh.  St.  544,  560   (1862). 

Same  subject  —  rule  of  construction. 

In  construing  conditional  subscriptions  in 
the  absence  of  words  expressing  a  different 
design,  it  will  be  presumed  that  it  was  the 
object  of  the  parties  to  make  the  subscrip- 
tions available  to  tin-  company  as  soon  as  pos- 
sible, so  as  to  furnish  it  fund-  to  prosecute  it- 
work. —  See  Chamberlain  v.  Painesville.  etc., 
E.  E.  Co.,  15  Oh.  St.  225   (1864). 

Defenses  of  subscribers  —  rights  of 
creditors  and  enforcement  of  sub- 
scriptions. 

See  notes  to  §  3253. 


§  3243.  WHEN  SUBSCRIPTIONS  OF  STOCX  ARE  PAYABLE.—  An  installment 
of  ten  per  cent,  on  each  share  of  stock  shall  be  payable  at  the  time  of  making  the 
subscription,  and  the  residue  thereof  shall  be  paid  in  such  installments,  and  at  such 
times  and  places,  and  to  such  persons,  as  may  be  required  by  the  directors  of  the 
corporation.     (May  1,  1852,  50  v.  274,  §  6;  R.  S.   1880.) 


Purpose  of  section,  payment  of  first  in- 
stallment. 

This  section  is  designed  to  fix  the  time  of 
payment  of  the  first  installment,  and  to  pro- 
vide the  mode  for  determining  the  time  at 
which  the  residue  shall  become  payable.  It 
does  not  prescribe  the  form  in  which  subscrip- 
tions are  required  to  be  made,  nor  doc-  the 
want  of  a  stipulation  for  the  payment  of  the 
first  installment  invalidate  the  subscription. 
—  Chamberlain  v.  Painesville.  etc..  R.  E.  Co.. 
15  Oh  St  225  (1864)  :  Ashtabula,  etc..  E.  E. 
Co.  v.  Smith.  15  Oh.  St.  328  (1864). 


Omission     to     pay     first     installment  — 
liability. 

The  failure  to  pay  the  first  installment  does 
not  release  subscribers. —  Ilenrv  v.  Vermil- 
lion, etc.,  E.  E.  Co.,  17  Oh.  187.  191   (1848). 

Time  of  making  the  subscription. 

The  time  of  making  the  subscription  refers 
to  the  time  at  which  it  Income-  complete.  In 
the  case  of  conditional  subscriptions  the  first 
installment  becomes  payable  when  the  sub- 
scription becomes  absolute. —  Ashtabula,  etc., 
E.  E.  Co.  v.  Smith.  15  Oh.  St.  328   (1804). 


118 


Private  Corporations  in  Ohio. 


Corporations  for  Profit  —  Subscriptions,  Organization,  etc.,  §  3244. 


Calls  — before   stock  fully  subscribed. 

The  whole  of  the  authorized  capital  slock 
need  not  be  subscribed  before  rails  are  made. 
The  common  law  is  modified  by  §  3244  and 
this  section.— Jewett  v.  Valley  Ely.  Co.,  34 
Oh.  St.  601  (1878).  See  Clarke  v.  Thomas,  34 
3t.   16   I  L877). 

Calls  —  as  to  conditional  subscriptions. 
General  rails  become  applicable  to  condi- 
tional subscriptions  as  soon  as  they^  become 
absolute  by  performance  of  conditions. — 
Mansfield,  etc.,  R.  R.  Co.  v.  Stout,  26  Oh.  St. 
241    (18 

Calls  —  where  and  to  whom  payable. 

Notice  to  pay  a  stock  subscription  to  the 
treasurer  of  the  company  implies  that  the 
payment  is  to  be  made  at  his  office,  and  is 
sufficiently  definite  as  to  place  and  person. — 
Muskingum,  etc.,  Turnpike  Co.  v.  Ward,  13 
Oh.    120   (1844). 

Calls  —  when  company  insolvent. 

When  a  company  becomes  insolvent  the 
method  of  making  calls  cannot  be  pursued; 
and  as  to  creditors  the  debt  thereafter  must 
be  treated  as  due  without  further  demand. — 
Henrv  v.  Vermillion,  etc.,  R.  R.  Co.,  17  Oh. 
1ST    (1848). 

Calls  —  where   demand  notes   have   been 
given. 

Where  subscribers  have  given  demand  notes 
in  payment  of  subscriptions,  calls  should  be 
made  by  the  directors  to  fix  their  liability  for 
the  reason  that  a  cause  of  action  would  not 


accrue  on  such  notes  until  a  call  had  been 
made.— Kilbreath  v.  Gaylord,  34  Oh.  St.  305 
(1877). 

Calls  —  pending  consolidation. 

A  general  call  made  by  a  company  during 
the  pendency  of  consolidation  proceedings  will 
continue  in  force  for  the  benefit  of  the  con- 
solidated company,  provided  an  officer  author- 
ized to  receive  such  payments  be  continued  at 
the  place  named  in  the  call. —  Mansfield,  etc., 
R.  R.  Co.  v.  Stout,  26  Oh.  St.  241   (1875). 

Waiver  of  right  of  board  to  make  call. 

The  subscriber  and  the  company  may  agree 
in  the  subscription  as  to  the  times  and 
amounts  of  payments  thereon,  and  thereby 
waive  the  right  of  directors  to  require  the 
payment  of  subscriptions  at  such  times  and 
places  as  they  see  fit. —  Mansfield,  etc.,  R.  R. 
Co.  v.  Pettis,' 26  Oh.  St.  259   (1875). 

Same  subject  —  illustration. 

Where  a  subscription  contained  a  condition 
that  not  more  than  ten  per  cent,  shall  be  re- 
quired  to  be  paid  at  any  one  call,  nor  shall 
calls  be  made  more  frequently  than  once  in 
sixty  days,  it  is  not  included  in  a  call  by  the 
directors  for  the  payment  of  ten  per  cent, 
monthly  until  the  whole  is  paid. —  Mansfield, 
etc.,  R.  R.  Co.  v.  Pettis,  26  Oh.  St.  259   (1875). 

Liability  of  incorporators. 

Incorporators  are  liable  until  at  least  ten 
per  cent,  of  the  authorized  capital  is  paid  in. 
— ■  See  Hessler  v.  Cleveland  Punch,  etc.,  Co., 
61  Oh.  St.  621   (1899). 


§  3244.  CERTIFICATE  OE  SUBSCRIPTION  TO  STOCK;  NOTICE;  ELECTION 
OF  DIRECTORS. —  As  soon  as  ten  per  cent,  of  the  capital  stock  is  subscribed,  the 
subscribers  of  the  articles  of  incorporation,  or  a  majority  of  them,  shall  so  certify,  in 
writing,  to  the  secretary  of  state,  and  thereupon  shall  give  notice  to  the  stockholders, 
as  provided  in  section  three  thousand  two  hundred  and  forty-two,  to  meet  at  such 
time  and  place  as  they  may  designate,  for  the  purpose  of  choosing  not  less  than  five 
nor  more  than  fifteen  directors,  who  shall  continue  in  office  until  the  time  fixed  for 
the  annual  election,  and  until  their  successors  are  chosen  and  qualified;  provided, 
that  in  case  all  subscribers  are  present  in  person,  or  by  proxy,  such  notice  may  be 
waived  in  writing,  and  the  incorporators  of  the  company  shall  be  liable  to  any  per- 
son affected  thereby,  to  the  amount  of  any  deficiency  in  the  actual  payment  of  said 
ten  per  cent.,  at  the  time  of  so  certifying.  (May  1,  1852,  50  v.  274,  §  9;  R.  S.  1880; 
April  15,  1880,  77  v.  266;  May  18,  1894,  91  v.  304.) 


Conditional  subscriptions. 

In  computing  this  ten  per  cent.,  no  regard 
can  be  ^ivon  to  conditional  subscriptions  which 
have  not  become  absolute.  For  this  provision 
is  for  the  benefit  of  creditors  of  the  company, 
and  therefore  only  subscriptions  having  a 
present  value  should  be  counted. —  Portland, 
etc.,  I:,  i:.  Co.  v.  Spillman,  32  Pac.  (Ore.)  688 
I  L893). 

Calls  —  ten  per  cent,  must  be  subscribed. 

The,  subscription  of  ten  per  cent,  is  a  con- 
dition  precedent  to  the  calling  and  enforce- 
ment of  the  subscriptions  made  before  organ- 


ization, just  as  at  common  law  the  subscrip- 
tion of  the  whole  stock  was  a  condition  prece- 
dent.—  Portland,  etc.,  R.  R.  Co.  v.  Spillman, 
32  Pac.  (Ore.)  688  (1893).  See  Jewett  v. 
Valley  R.  R.  Co.,  34  Oh.  St.  601  (1878)  :  Em- 
mitt  v.  Springfield,  etc.,  R.  R.  Co.,  31  Oh.  St. 
23    (1876). 

Subscribers  may  waive   subscription  of 
ten  per  cent. 

So  far  as  a  stockholder's  liability  to  pay 
calls  is  concerned,  he  may  waive  the  right  to 
have  ten  per  cent,  subscribed  before  calls  are 
made. —  Portland,  etc.,  R.  R.  Co.  v.  Spillman, 


General  Corporation  Law. 


119 


Corporations  for  Profit  —  Subscriptions,  Organization,  etc.,  $  3244. 


32  Pac.  (Ore.)  688  (1893).  See  Emmitl  \. 
Springfield,  etc.,  R.  R.  Co.,  31  Oh.  St.  23 
(1876). 

Presumption  of  regularity  of  organiza- 
tion. 

Where  it  is  alleged  that  pursuant  to  a 
regular  notice  the  stockholders  elected  a  board 
of  directors,  it  will  be  presumed  that  the  steps 
accessary  to  a  valid  organization  bad  been 
taken. —  Ashtabula,  etc,  R.  R.  Co.  v.  Smith, 
15  Oh.   St.  328    (1864). 

Notice  of  meeting  to  elect. 

This  section,  so  far  a<  il  concerns  the  notice 
of  the  meeting  to  elect  directors,  is  directory. 
If  the  necessary  amount  of  stock  has  been  ob- 
tained, and  at  a  meeting  of  the  stockholders 
called  for  the  purpose  they  elect  directors,  the 
validity  of  their  acts  cannot  be  questioned 
collaterally,  on  account  of  irregularity  in  the 
election. —  Chamberlain  v.  Painesville,  etc.,  R. 
R.  Co.,  15  Oh.  St.  225  (1864). 

Failure    to    give    notice. 

An  organization  meeting  is  not  a  nullity 
because  of  the  failure  to  give  notice,  if  the 
parties  for  whom  the  notice  was  provided  ac- 
quiesce and  do  business  under  such  organiza- 
tion.—McClinch  v.  Sturgis,  72  Me.  288 
•  (1881)  ;  Braintree  Co.  v.  Inhabitants  of  Brain- 
tree,  146  Mass.  482   (1888). 

Proof  of  organization. 

In  a  proceeding  to  condemn  land,  a  com- 
pany is  obliged  to  prove  not  only  its  incor- 
poration, but  the  validity  of  its  organization: 
and  it  must  therefore  prove  the  subscription 
of  ten  per  cent,  of  the  stock. —  Powers  v. 
Hazelton,  etc.,  Ry.  Co.,  33  Oh.  St.  429   (1878). 

Same  subject  —  records. 

The  organization  of  a  company  may  be 
shown  by  its  records  after  proving  their  au- 
thenticity and  genuineness. —  Toledo,  etc., 
Ry.  Co.  v.  Toledo,  etc.,  Ry.  Co.,  6  0.  C.  C.  302. 
392   (1892);  s.  c,  3  C.  D.  493. 

Who  must  be  directors. 

Where  there  are  but  five  stockholders,  each 
must  be  a  director.— Gates  v.  Tippecanoe 
Stone  Co.,  9  O.  C.  C.  99,  103  (1894);  s.  c,  6 
C.  D.  23. 

Term  of  office  of  directors. 

Directors  continue  in  office  until  their  suc- 
cessors are  elected  and  qualified. —  Bartholo- 
mew v.  Bentlev,  1  Oh.  St.  37.  42  (1852)  : 
State   ex   rel.    v.   Bonnell,    35   Oh.   St.    10,    17 

(1878). 

Abandonment  of  office. 

Where  no  directors  are  elected  within  a 
reasonable  time  after  the  expiration  of  the 
terms  of  those  duly  elected,  and  the  company 
ceases  to  do  business,  it  will  be  presumed  that 
the  offices  have  been  resigned  or  abandoned. — 
Bartholomew  v.  Bentley,  1  Oh.  St.  37.  42 
(1852). 


Resignations. 

'I  in      eetion   does    di  A    pn    !  rrl    resignal  ions 
of  directors,   but,   on   t  be  conl  rai  j     I  hi 
allowable    as    al     common     law.—    Brigj 
Spaulding,   III    U.  8.   132   |  1890). 

Liability     of     directors  —  acting     before 
ten   per  cent,   is   subscribed. 

The  subscription  of  (lie  necessary  amount 
of  stock  (ten  per  ecu!.)  to  authorize  the  elec- 
tion of  directors  is  noi  only  a  matter  of  sub- 
stance, Inn  is  essential  to  the  organization  of 
the  corporation,  and  accessary  to  the  I 
action  of  business  by  ii  :  and  persons  acting 
as  directors  before  the  necessary  ten  per  cent. 
has  been  subscribed  are  without  authoritj  to 
create  a  corporate  obligation,  and  become  per- 
sonally liable,  although  they  have  acted  in 
good  faith.  In  such  a  case  the  directors 
should  be  charged  with  an  amount  equal  to 
the  necessary  -lock  subscriptions  and  the 
statutory  liabilitv  of  the  stockholdi 
Trust  Co.  v.  Floyd,  47  Oh.  St.  525   (1890). 

Organization  meeting  should  be  held  in 
this  state. 

It  is  a  well-settled  rule  of  law  that  the  ac- 
ceptance  of  a  charter  and  the  organizau 
a  corporation  must  occur  in  the  state  creating 
it. —  See  Myers  v.  Manhattan  Bank,  20  Oh. 
283  (1851);'  Smith  v.  Silver,  etc.,  Co.,  64  Md. 
85  (1885);  Freeman  v.  Machias,  etc.,  Co.,  38 
Me.  343  (1854);  Heath  v.  Silverthorn.  etc., 
Co.,  39  Wis.  149   (1875). 

Service     of     process     when     corporation 
fails  to  elect  officers. 

See  §  5045. 

Liability    of    incorporators  —  amount. 

The  liability  of  incorporators  under  this 
section  is  for  the  amount  of  any  deficiency  in 
the  actual  payment  of  ten  per  cent,  of  the 
authorized  capital  stock  of  the  corporation  at 
the  time  of  their  certifying.  a<  therein  pro- 
vided, to  the  secretary  of  state,  and  not  merely 
for  one-tenth  of  that  amount. —  Hessler  v. 
Cleveland  Punch,  etc..  Co.,  61  Oh.  St.  621 
(1899). 

Same    subject  —  rights    of    creditors. 

This  liability  is  a  security  for  the  creditors 
of  the  corporation,  in  addition  to  the  liability 

of  the  stockholders:  and  it  is  not  necessary,  to 
entitle  a  creditor  to  its  benefit,  that  he  should 
have  knowledge  of  the  making  of  the  certifi- 
cate, or  of  its  contents. —  He— lev  v.  (  leve- 
land  Punch,  etc.,  Co.,  61  Oh.  St.  621   (1899). 

Practice. 

A  suit  to  enforce  the  liability  of  incorpora- 
tors should  be  prosecuted  for  the  benefit  of  all 
creditors,  as  in  cases  against  the  stockholders. 
and  the  liabilities  of  both  classes  may  be  en- 
forced in  one  action,  and  the  attorney  fees  of 
the  creditor  plaintiff  may  be  allowed  out  of 
the  fund. —  Hessler  v.  Cleveland  Punch,  etc., 
Co.,  61  Oh.  St.  621   (1S99). 


120 


Private  Corporations  in  Ohio. 


Election  of  Directors,   §  3245. 


§  3245.     CONDUCT    OF    ELECTION;    CUMULATIVE    VOTING;    INSPECTORS. 

At  the  time  and  place  appointed,  directors  shall  he  chosen,  hy  hallot,  by  the  stock- 
holders who  attend  for  that  purpose,  either  in  person  or  by  lawful  proxies;  at  such 
election  and  at  all  other  elections  of  directors,  every  stockholder  shall  have  the 
right  to  vote  in  person  or  by  proxy  the  number  of  shares  owned  by  him  for  as  many 
pel-sons  as  there  are  directors  to  be  elected,  or  to  cumulate  said  shares  and  give  one 
candidate  as  many  votes  as  the  number  of  directors  multiplied  by  the  number  of  his 
shares  of  stock  shall  equal,  or  to  distribute  them  on  the  same  principle  among  as  many 
candidates  as  he  shall  think  fit;  and  such  directors  shall  not  be  elected  in  any  other 
manner.  A  majority  of  the  number  of  shares  shall  be  necessary  for  a  choice,  but  no 
person  shall  vote  on  any  share  on  which  any  installment  is  due  and  unpaid. 

At  such  first  election  the  subscribers  of  the  articles  of  incorporation,  or  any  of 
them  as  may  be  present,  shall  be  inspectors  of  such  election,  and  shall  certify  what 
persons  are  elected  directors,  and  shall  appoint  the  time  and  place  for  holding  their 
first  meeting.     (May  1,  1852,  50  v.  274,  §  9;  April  23,  1898,  93  v.  230.) 


Cumulative  voting  under  old  law. 

This  section,  before  the  amendment  of  1S98. 
did  not  confer  upon  stockholders  the  right  of 
cumulative  voting. —  State  ex  rel.  v.  Stock- 
ley,  4.",  Oh.  St.  304  (1887):  State  ex  rel.  v. 
Balloway,  1  O.  C.  C.  157  (1885);  s.  c..  1  C.  D. 
:"i;  State  ex  rel.  v.  Fosdick,  1  0.  C.  C.  265 
(1885);  s.  c,  1  C  D.  145. 

Cumulative  voting  not  obligatory. 

Even  though  stockholders  are  entitled  to 
vote  on  the  cumulative  plan,  they  are  not 
obliged  to. —  Schmidt  v.  Mitchell,  41  S.  \V. 
(Ky.)   929   (1897). 

Applicability  of   act  to   existing   corpo- 
rations. 

See  Smith  v.  Atchison,  etc..  R.  R.  Co.,  G4 
Fed.  272  (1894);  Commonwealth  v.  Butter- 
worth.  ItiO  Pa.  St.  55  (1894);  Attorney-Gen- 
eral v.  Looker.  09  X.  W.  (Mich.)  929  (1897): 
Cross  v.  W.  Va..  etc.,  Ry.  Co.,  35  W.  Va.  174 
(1891);  State  v.  Greer,  7S  Mo.  188  (1S83)  ; 
Hays  v.  Commonwealth,  82  Pa.  St.  518  (1876). 

Suggestions   as   to    cumulative   voting. 

Under  the  cumulative  system  of  voting,  the 
majority,  in  order  to  be  safe,  should  abandon 
any  idea  of  electing  the  whole  board,  but 
should  cumulate  their  votes  on  such  a  propor- 
tion of  tin'  hoard  a-  their  stock  bears  to  the 
whole  stock,  and  should  scatter  no  votes  by 
way  of  complimenl  or  otherwise.  Where,  for 
instance,  there  ;n"  five  directors  to  be  elected, 
a  minority  holding  more  than  one-fifth  of  the 
stock  can  elect  one  director  by  cumulating 
their  vote-  on  such  director. 

Majority  necessary  to  choice. 

Attention  i-  -ailed  to  the  fact  that  the  old 
law  provided  thai  a  plurality  and  not  a  ma- 
jority, a-  in  the  new  act.  was  necessary  to  a 
choice. 

Majority   of  votes  elects. 

In  the  election  of  directors  of  a  corporation, 

cumulative    voting    being    authorized    by    this 

•      i  eceh  ing  a   ma  jority  of  the  \  otes 

t    i-  elected  a   director,  though  he  does 

not  receive  the  vole-  of  the  holders  of  a  ma- 


jority   of  the  shares. —  Schwartz  v.   State    61 
Oh.  St.  497  (1899). 

Payment    of    installments    before    elec- 
tion. 

It  is  clear  from  a  reading  of  §  3243  and 
§  3244  that  ten  per  cent,  of  the  ten  per  cent, 
subscribed  should  be  paid  by  those  voting  at 
an  election  under  this  section;  but  if  an  elec- 
tion is  held,  and  persons  are  elected  by  votes 
on  stock  on  which  installments  are  due,  they 
become  de  facto  directors,  and  their  acts  are 
not  subject  to  collateral  attack. —  Raymond 
v.  Spring  Grove,  etc.,  Ry.  Co..  21  W.  L.  B.  103 
(1889).  See  Henderson  v.  Hogan,  1  W.  L.  B. 
227    (1S76). 

Votes  necessary  to  elect. 

A  majority  of  the  stockholders  Mho  attend 
for  such  purpose,  either  in  person  or  by  proxy, 
is  sufficient,  neither  a  majority  of  all  the 
shares  provided  for  in  the  charter  of  the  cor- 
poration, nor  a  majority  of  the  shares  issued 
is  required.  This  does  not  apply  when  the 
cumulative  method  of  voting  is  adopted. 
Lutterby  v.  Herancourt  Brewing  Co.,  12  Dec. 
67   (190*1). 

Who  may  vote. 

The  person  in  whose  name  stock  is  regis- 
tered, if  only  a  trustee,  is  entitled  to  vote 
upon  the  stock,  and  the  officers  in  charge  of 
the  election  cannot  look  into  the  rights  of  any 
other  person  in  the  stock. —  Hafer  v.  X.  Y., 
etc.,  R.  R.  Co.,  14  W.  L.  B.  68,  72  (1885). 

Stock  held  by  the  corporation. 

The  voting  power  incident  to  stock  in  a 
corporation  is  not  lost  when  it  becomes  the 
property  of  the  corporation,  but  the  with- 
drawal of  such  stock  from  the  number  of  vot- 
ing shares  is  in  effect  an  equal  distribution  of 
their  voting  power  among  the  individual 
shareholders. —  Allen  v.  De  Lagerberger,  20 
W.   L.   B.  368   (1888). 

Stock  pledged  by  the  corporation. 

When  the  directors  of  a  corporation  pledge 
its  own  stock  to  secure  a  loan,  they  may,  if  it 


(  rENERAL   CORPORATION    I  -  AW  . 


121 


Stockholders —Vote  of,   SS  3245a,  3245b. 


will  secure  additional  consideration  for  the 
benefit  of  the  corporation  in  the  contract  oi 
loan,  confer  upon  the  pledgee  the  right  to 
vole  the  stock.  Allen  y .  {)<■  Lagerberger,  20 
W.  L.   B.  368  I  18S8). 

Duty  of  inspectors. 

It  is  the  duty  of  the  corporators,  when  act- 
ing as  inspectors,  when  so  requested,  to  deter- 
mine what  persons  arc  entitled  to  vote.  Gen 
erally  this  musl  be  done  by  reference  to  the 
stock  books,  but  it  seem-  that  the  Legislature 
intended  to  give  them  more  power  in  Ohio,  for 
§  3245c  provides  that  the  ownership  <>t'  stock 
may  be  determined  by  the  corporate  books, 
stock  certificates  or  other  satisfactory  proof. 
The  inspectors  may  exercise  a  reasonable  dis- 
cretion as  to  the  time  for  closing  the  election, 
so  as  to  expedite  matters  or  to  allow  each 
stockholder  a  vote. —  In  re  M.  &  H.  R.  R.  Co., 
10  Wend.  (N.  Y.)  135  (183S);  In  re  Che- 
nango  Ins.  Co.,  19  Wend.  (N.  Y.)  635  (1839); 
People  v.  A.  &  S.  R.  R.  Co.,  55  Barb.  (N.  Y.) 
344    (1SG9). 

Same  subject. 

When  the  inspectors  once  receive  a  vote, 
either  without  objection  or  over  the  objection 
of  a  stockholder,  they  cannot  afterward  re- 
ject it.—  Hartt  v.  Harvey,  32  Barb.  (X.  Y.) 
55  (1860);  People  v.  White,  11  Abb.  Prac. 
Rep.  168,  179  (1860). 


Evidence   to  set  aside   the   action   of   in- 
spectors. 
In  a   legal   proceeding  brought    to  set   aside 

the    action    oi    inspectors,    only    the   evidence 

introduced  before  the  inspectors  can  be  used 
In  re  M.  &  II.  R.  I:.  <  o.,  19  Wen 

135  (1838). 

Inspector  niay  be   candidate. 

An  inspector  may  be  a  candidate  for  elec- 
tion. -Commonwealth  v.  Woelper  3  -  R 
(Pa.)  29   (1817). 

Certificate  of  election. 

I  be  certificate  of  election  is  prima  facie  evi- 
dence of  the  facts  Btated   therein;    bu1 

the  inspectors  state  not  only  the  result,  but 
also  the  facts  which  induced  their  decision, 
such  facts  may  show  their  decision  to  be  erro 
neons,  and  so  nullify  their  certificate.  Hartt 
v.  Harvey,  32  Barb.    I  X.  Y.)   55    (181 

Same  subject. 

A  certificate  may  be  used  although  made 
long  after  the  election. —  People  v.  Peek,  11 
Wend.    i\.    Y.)   604   (1834). 

Same  subject. 

An  election  is  good  although  the  inspectors 
fail  to  certify  the  result,  or  though  they  cer- 
tify falsely.—  People  v.  Peck.  11  Wend.  (N. 
Y.)  604  (1834);  Hartt  v.  Harvey,  32  Barb. 
(N.  Y.)  55  (I860);  State  ex  rel.  v.  Smith.  15 
Ore.  98   (1887). 


§  3245a.  CORPORATIONS  MAY  LIMIT  VOTES  OF  STOCKHOLDERS.—  A  cor- 
poration may  provide  in  its  articles  of  incorporation  that  each  stockholder,  irrespect- 
ive of  the  amount  of  stock  he  may  own,  shall  be  entitled  to  one  vote,  and  no  more, 
at  any  election  of  directors,  or  upon  any  subject  submitted  at  a  stockholders'  meet- 
ing, and  when  such  provision  is  made  it  shall  be  governed  thereby.  (March  19, 
1884,   81   v.   54,   55.) 

Sections  numbered  the  same. 

There  are  two  sections  bearing  the  number  3245a,  reading  differently,  and  both  in  force. 


§  3245b.  PROVISIONS  TO  WHICH  SUCH  CORPORATIONS  ARE  SUBJECT.— 
Every  corporation  where  articles  of  incorporation  contain  the  limitation  mentioned 
in  section  thirty  two  hundred  and  forty-five  (a),  shall  be  subjected  to  the  following 
provisions: 

1.  No  person  shall  hold  or  own  stock  in  excess  of  one  thousand  dollars  face  value. 

2.  The  directors  shall  annually  within  thirty  days  after  the  thirty-first  day  of 
December,  make  and  file  with  the  recorder  of  the  county  in  which  the  corporation  is 
doing  business,  a  statement  of  its  financial  condition  upon  the  said  thirty-first  day  of 
December,  plainly  setting  forth  its  assets  and  liabilities  in  detail,  the  amount  of  its 
paid  up  capital  stock,  the  names  of  its  stockholders,  and  the  number  of  shares  owned 
by  each,  and  said  statement  shall  be  signed  and  sworn  to  by  a  majority  of  the  direct- 
ors, including  the  treasurer,  before  any  officer  authorized  to  administer  oaths  in  this 
state.  If  the  board  of  directors  fail  to  make  the  annual  statements  required  by  this 
section,  or  if  they  make  a  false  statement,  they  shall  be  personally  liable  for  all 
claims  and  demands  against  such  corporation. 

3.  By-laws  for  the  government  of  the  corporation,  and  for  distribution  of  its 
net  earnings  among  its  workmen,  patrons  and  shareholders,  not  inconsistent  with  the 


122 


Private  Corporations  in  Ohio. 


Directors,  Election  of,   §§  3245a-3245c. 


constitution   and   laws  of  the  state  may  be  made  by  the  stockholders. 
1884,  81  v.  54,  55.) 


(March   19, 


Sections  numbered  the  same. 

There  are  two  sections  bearing  the  number 
3245b,  reading  differently,  and  both  in  force. 

Common-law  rule. 

This  section  goes  back  to  the  old  common- 
law  rule  that  a  shareholder  was  entitled  to  no 
more  than  one  vote,  irrespective  of  the  num- 
ber of  shares  held  by  him. —  See  State  ex  rel. 
v.  Stockley,  45  Oh.  St.  304,  306   (1887). 

Purpose  of  law  —  evasions. 

The  restrictions  placed  by  this  section  upon 
the  voting  power  of  stockholders  are  intended 
to  protecl  the  minority  and  to  place  the  work- 
men in  a  co-operative  organization  of  employer 
and  employee  on  a  plane  with  persons  owning 
a  great  number  of  shares.  In  England,  un- 
der a  similar  provision,  it   was  held  possible 


for  a  person  to  exceed  the  limit  placed  by  the 
law.  and  to  increase  his  voting  power  by  plac- 
ing his  stock  in  the  hands  of  third  persons  to 
hold  and  vote  according  to  his  directions. — 
In  re  Stranton  I.  &  S.  Co..  L.  R.  10  Eq.  Cas. ' 
559  (1873);  Pender  v.  Lushington,  L.  R.  6 
Ch.  Div.  70  (1877)  ;  Moffat  v.  Farquhar,  L.  R. 
7  Ch.  Div.  591  (1877).  See  §  3836-3  stock 
notes. 

In  other  jurisdictions  such  evasions  have  not 
been  sanctioned. —  Mack  v.  De  Bardelben  Co., 
90  Ala.  397  (1889);  Campbell  v.  Poultnev,  6 
G.  &  J.  (Md.)  94  (1834);  Webb  v.  Ridgley, 
38  Md.  364  (1873).  See  Creed  v.  Lancaster 
Bank,  1  Oh.  St.  1    (1852). 

Other     corporations     may     limit     stock 
holdings. 

See  §  3869  and  §  3836-3. 


§  3245a.  APPLICATION  FOR  APPOINTMENT  OF  INSPECTORS  OF  ELEC- 
TION; NOTICE. —  Within  fifteen  days  next  before  any  meeting  held  for  the  election 
of  directors  or  trustees,  or  for  the  determination  of  any  question  by  the  stockholders 
of  any  corporation,  or  by  the  subscribers  to  its  stock,  or  by  its  creditors  and  stock- 
holders for  its  reorganization,  any  person  or  persons  entitled  to  vote  at  said  meeting 
and  owning  at  least  a  one-tenth  interest  in  its  stock  may  apply  to  the  court  of  common 
pleas  of  the  county  wherein  said  meeting  is  to  be  held,  or  if  the  court  be  not  in  ses- 
sion, to  a  judge  thereof,  or  in  case  of  the  absence  or  disability  of  such  judge  then  to 
the  probate  court,  for  the  appointment  of  inspectors  for  such  meeting;  but  no  such 
application  shall  be  acted  upon  until  notice  thereof  has  been  served  upon  the  cor- 
poration at  its  general  office,  and  the  court  or  judge  may  require  such  additional 
notice  by  newspaper  publication,  or  otherwise,  as  may  be  deemed  proper.  (March  18, 
1887,  84  v.   115.     See  note  to  preceding  §   3245a.) 

Appointment  by   directors. 

Directors    of  a   company  have  no  authority  to   appoint  inspectors   of   an  election. —  State 
ex  rel.   v.  Merchant,  37  Oh.  St.  251    (1881). 


8  3245b.  APPOINTMENT  OF  INSPECTORS;  VACANCIES.—  Upon  the  hearing 
of  such  application  the  court  or  judge  shall  appoint  three  competent  disinterested 
persons  inspectors  for  such  meeting,  if  such  appointment  be  considered  proper  and 
right,  and  for  good  cause  may  thereafter  vacate  such  appointment  as  to  one  or  more 
of  said  persons  and  appoint  another  or  others  instead.  In  case  of  the  failure  of  any 
inspector  to  attend  said  meeting,  or  to  act  thereat,  the  stockholders  may  fill  the 
vacancy  so  caused.     (March  18,  1887,  84  v.  115.     See  note  to  preceding  §  3245b.) 

§  3245c.  LIST  OF  STOCKHOLDERS  TO  BE  DELIVERED  TO  INSPECTORS; 
STOCK  OWNERSHIP,  HOW  ASCERTAINED.— Before  every  such  meeting  it  shall 
be  the  duty  of  the  officer  or  the  agent  of  the  corporation  having  charge  of  the  transfer 
of  its  stock,  to  make  out,  under  oath,  a  list  of  its  stockholders,  showing  the  number 
and  classes  of  shares  held  by  each,  as  shown  by  its  books,  on  the  date  fixed  for  closing 
the  stock  transfers  before  its  meetings;  and  if  no  time  be  fixed  therefor,  then  on  the 
tenth  day  prior  to  the  date  of  such  meeting.  Such  list  shall  be  delivered  to  the 
inspectors  of  the  meeting,  and  shall  be  prima  facie  evidence  of  the  ownership  of  its 
stock;  but  in  case  of  its  absence  the  inspectors  shall  ascertain  the  ownership  of  stock 
by  the  corporation  books,  stock  certificates  or  other  satisfactory  proof.  (March  18, 
1887,  84  v.  115,  116.) 


(  rENERAL    <  iORPORAI  [ON    LAW. 


123 


Directors  or  Trustees  —  Election  of,   SS  3245d  3240. 


§  3245d.  CONDUCT  OF  ELECTIONS  BY  INSPECTORS;  CERTIFICATE  OF 
RESULT. —  The  inspectors  so  appointed,  or  if  none  be  appointed,  then  those  selected 
by  the  meeting,  shall  receive  and  count  the  votes  cast  at  such  meeting,  or  at  any 
adjournment  thereof,  either  upon  an  election,  or  for  the  decision  of  any  question  to 
be  decided  by  vote,  and  determine  the  result,  and  their  certificate  of  the  result  shall 
be  prima  facie  evidence  thereof.     (March  18,   1887,  84  v.  115,   116.) 

§  3245e.  COMPENSATION  OF  INSPECTORS.— The  court  or  judge  making  tfae 
appointment  of  inspectors  may  fix  their  compensation,  and  may  require  the  applicants 
for  their  appointment  to  secure  its  payment;  but  the  corporation  shall  be  liable  there- 
for if  the  meeting  by  vote  so  determine.     (March  18,  1887,  84  v.  115,  116  ) 


§  3246.  ANNUAL  AND  OTHER  ELECTIONS  FOR  TRUSTEES  AND  DIRECT- 
ORS.—  Unless  the  regulations  of  the  corporation  otherwise  provide,  an  annual 
election  for  trustees  or  directors  shall  be  held  on  the  first  Monday  in  January  of 
each  year;  if  trustees  or  directors  are,  for  any  cause,  not  elected  at  the  annual  meet- 
ing, or  other  meeting  called  for  that  purpose,  they  may  be  chosen  at  a  members'  or 
stockholders'  meeting,  at  which  all  the  members  or  stockholders  are  present  in  person 
or  by  proxies,  or  at  a  meeting  called  by  the  trustees  or  directors,  or  any  two  members 
or  stockholders,  notice  of  which  has  been  given,  in  writing,  to  each  stockholder,  or  by 
publication  in  some  newspaper  printed  in  the  county  where  the  corporation  is  situate, 
or  has  its  principal  office,  for  ten  days;  and  trustees  and  directors  shall  continue  in 
office  until  their  successors  are  elected  and  qualified.  Except  that  any  corporation, 
the  principal  object  of  which  is  the  owning  and  operating  of  a  clubhouse  for  the  use 
of  its  stockholders,  the  clubhouse  of  which  is  not  kept  open  and  operated  for  the  use 
of  its  stockholders  during  the  winter  season,  shall  hold  its  annual  election  of  direct- 
ors on  the  third  Monday  in  July  of  each  year,  and  such  election  shall  be  held  at  the 
clubhouse  owned  and  operated  by  such  corporation.  (May  1,  1852,  50  v.  274,  S  64, 
R.  S.   1880;  April  16,   1900,  94  v.  375.) 


Notice    of   general   meeting. 

Where  a  meeting  is  stated  and  general,  no- 
tice of  the  time  and  place  of  holding  it,  or  of 
the  business  to  be  transacted,  is,  in  the  ab- 
sence of  provision  or  regulation  to  the  con- 
trary, in  no  case  required. —  State  ex  rel.  v. 
Bonnell,  35  Oh.  St.  10  (1878);  Wiswell  v. 
First,  etc.,  Church,  14  Oh.  St.  31   (1862). 

Adjourned   meetings. 

Any  business  proper  to  be  transacted  and 
properly  commenced  at  a  regular  meeting 
but  not  completed,  may  be  done  at  an  ad- 
journed meeting  without  further  notice  to 
stockholders  of  the  adjourned  meeting. — 
State  ex  rel.  v.  Bonnell,  35  Oh.  St.  10  (1878)  ; 
Wiswell  v.  First,  etc.,  Church,  14  Oh.  St.  31 
(1862). 

Notice   of  election. 

Where  no  notice  of  an  election  is  given, 
persons  elected  directors  may  become  de  facto 
directors. —  First,  etc.,  Society  v.  First,  etc., 
Society,  25  Oh.  St.  128,  133   (1874). 

Time  of  election. 

This  section,  so  far  as  it  concerns  the  time 
of  holding  elections,  is  merely  directory  and 
not  imperative. —  State  ex  rel.  v.  Lakamp,  4  O. 
C.  C.  257  (1889) ;  s.  c,  2  C.  D.  583.  See  Cham- 
berlain v.  Painesville,  etc.,  R.  R.  Co.,  15  Oh. 
St.  225  (1864). 


Informalities    in   following   regulations 
do  not  invalidate   election. 

When  the  election  is  not  held  on  the  day 
fixed  for  the  annual  meeting,  informalities  in 
calling  and  giving  notice  of  a  special  election 
will  not  invalidate  the  same.  Lutterby  v. 
Herancourt  Brewing  Co.,  12  Dec.  67  (190i). 

Right   to   fair   election. 

A  stockholder  lias  a  righl  to  a  fair  and  law- 
ful election  of  directors  without  regard  to 
pecuniary  injurv. —  Hafer  v.  X.  Y.,  etc.,  R.  R. 
Co..  14  W.  L.  B.  68,  71   (1885). 

What  is  unfair  election? 

Where  a  corporation  is  restrained  from  hold- 
ing an  election  of  officers,  and  in  consequence 
of  the  injunction  no  meeting  is  held  for  sev- 
eral hours  after  the  regular  time,  when  a 
small  number  of  stockholders,  without  the 
knowledge  of  the  others,  meet,  organize,  and 
adjourn  until  the  next  day.  at  which  time 
an  election  is  held  by  a  minority  of  the 
stockholders  without  notice  to  the  others. 
who  are  in  the  vicinity  fur  the  purpos 
the  meeting  and  might  have  been  readily 
notified:  held,  that  such  election  is  unfair 
and  must  be  held  invalid,  whether  the  re- 
straining order  did  or  did  not  bind  the  stock- 
holders.— State  ex  rel.  v.  Bonnell,  35  Oh.  St. 
10    (1878). 


124 


Private  Corporations  in  Ohio. 


Directors  or  Trustees  —  Election  of,   §  3246. 


Sanie  subject. 

Where  at  the  meeting  of  the  stockholders 
of  a  corporation  for  the  election  of  officers,  by 
a  misunderstanding  as  to  the  time  of  an 
agreed  adjourned  meeting  the  minority  meet 
and  elect  officers,  and  thereafter  the  majority 
meet  and  elect  officers,  neither  election  will  be 
held  "immI.  lmt  the  old  directors  will  hold  over. 

SI  ite  ex  rel.  v.  Smalley,  7  0.  C.  C.  400 
i  1893)  ;  -.  c,   IC.  D.  653. 

■Who  are  electors? 

The  members  or  stockholders  of  a  corpora- 
tion are  the  elective  and  controlling  body,  and 
neither  the  incorporators  nor  the  trustees  first 
elected,  are  authorized  to  adopt  a  by-law  or 
regulation  providing  that  they  shall  hold 
office  during  life,  and  in  case  of  vacancy,  to 
till  the  same  by  appointment. —  State  v. 
Standard  Life  Assn.  38  Oh.  St.  281  (1882); 
Wiswell  v.  First,  etc..  Church,  14  Oh.  St.  31 
(1862). 

Inspectors  of  elections. 

The  right  to  choose  inspectors  of  an  election 
under  this  section  is  vested  in  the  stockhold- 
ers, not  the  directors. —  State  ex  rel.  v.  Mer- 
chant. 37  Oh.  St.  251   (1881). 

Election    notwithstanding   receivership. 

The  right  of  the  stockholders  of  a  company 
to  elect  directors  is  not.  affected  by  the  sale  of 
the  property  of  the  corporation  by  a  receiver 
under  an  order,  of  court. —  State  ex  rel.  v. 
Merchant.  37  Oh.  St.  251    (1881). 

Sale  of  voting;  power. 

A  sale  by  a  stockholder  of  the  power  to  vote 
upon  his  -hares  is  illegal. —  Hafer  v.  N.  Y., 
etc.,  R.  R.  Co.,  14  W.  L.  B.  OS,  71  (1885). 

"Voting  agreement. 

An  agreement  by  which  the  stockholders  of 
a  railway  company  confer  upon  a  committee 
the  power  to  vote  upon  their  shares  for  a 
lawful  purpose,  is  not  illegal  or  against  public 
policy,  but  such  agreement  may  be  revoked  at 
any  time  by  any  one  of  the  subscribing  share- 
holders, notwithstanding  it  is  in  terms  irrev- 
ocable.— Griffith  v.  Jewett,  15  W.  L.  B.  419 
(1886).  See  state  ex  rel.  v.  Standard  Oil  Co., 
49  Oh.  St.   L37   (1892). 

Same   subject. 

Stockholders  may  place  their  stock  in  the 
hands  of  a  depositary  with  direction  to  vote 
it  as  directed  by  a  committee  appointed  by 
themselves  and  subject  to  their  control. — 
Ry.  Co.  v.  State,  49  oh.  St.  668  (1892);  s.  c, 
6  0.  C.  C.   U5;  s.  c,  3  C.  D.  518. 

Same   subject. 

An  agreement  by  the  owners  of  a  majority 
of  the  capital  stock  of  a  company  to  elect  a 
particular  person  secretary  or  treasurer  is  not 
illegal  if  not  entered  into  for  private  benefit. 
—  Mullen  v.  OafTney.  8  Am.  L.  Rec.  102  (1879). 


Same   subject. 

Where  the  purchaser  of  stock  in  a  medical 
institute  guarantees  to  the  seller  a  professor- 
ship in  the  institution,  and  it  appears  that  the 
board  of  trustees  has  exclusive  power  to  ap- 
point the  professors,  the  contract  is  illegal  as 
one  controlling  the  election  and  conduct  of  the 
trustees  for  private  ends. —  Jones  v.  Sc.udder, 
2  C.  S.  C.  178  (1872). 

Injunction        against        election  —  when 
granted. 

Where  there  is  a  dispute  as  to  whether  a 
person  is  a  lawful  director  of  a  company  and 
some  of  the  stockholders  propose  to  elect  his 
successor,  the  election  will  not  be  enjoined 
provided  the  parties  agree  to  try  the  right  to 
office  by  quo  warranto;  but  the  parties  will 
be  enjoined  from  obtaining  possession  of  the 
office  bv  force  or  other  illegal  means. —  Hooe 
v.  Hall.'  9  0.  C.  C.  654  (1S93);  s.  c,  4  C.  D. 
547. 

Equity     cannot     determine     validity     of 
election. 

The  legality  of  the  election  of  persons  as 
trustees  of  a  company  and  their  right  to 
exercise  the  powers  and  conduct  the  affairs  of 
a  company  are  questions  which  cannot  be 
judicially  tested  by  a  bill  in  chancery,  but  fall 
appropriately  within  the  jurisdiction  of  pro- 
ceedings at  law  by  quo  warranto. —  Hullman. 
v.  Honcamp,  5  Oh.  St.  237  (1853);  First,  etc., 
Society  v.  Smithers,  12  Oh.  St.  248  (1861); 
Bartholomew  v.  Lutheran  Congregation,  35 
Oh.  St.  5G7  (1880);  Messenger  v.  Wardens  of 
Trinity  Church,  G  W.  L.  B.  397  (1881).  See 
Moses' v.  Tompkins.  84  Ala,  (U3  (1887),  and 
Lutterby  v.  Herancourt  Brewing  Co.,  12  Dec. 
67  (1901),  for  exceptions. 

Election  called  by  directors. 

The  designation  of  a  time  for  an  election  by 
the  directors  must  be  done  by  them  as  a  board 
when  lawfully  convened;  and  a  resolution  by 
the  board  that  an  election  must  be  held  with- 
out fixing  a  time,  does  not  authorize  one  of 
them  to  fix  the  time  and  give  notice.  A  no- 
tice of  an  election  required  to  be  given  by  the 
directors  is  not  a  sufficient  notice  if  signed  by 
the  individual  names  of  a  majority  without 
stating  that  it  was  given  by  order  of  the 
board,  or  stating  that  the  persons  whose 
names  were  signed  were  directors. —  Johnston 
v.  Jones,  23  N.  J.  Eq.  216  (1872). 

Repeating. 

To  vote  more  than  once  at  an  election  under 
this  section  is  not  a  penal  offense. —  Lane  v. 
State,  39  Oh.  St.  312  (18S3). 

Term  of  office. 

Directors  must  be  elected  for  one  year. 
Lutterby  v.  Herancourt  Brewing  Co.,  12  Dec. 
67    (1901). 


General  Corporation  Law. 


125 


Directors  or  Trustees  —  Oath,  Duties,  etc.,   8  3247. 


Holding  over  term. 

Where  directors  have  been  regularly  elected 

and  enter  upon  the  duties  of  the  office,  they 
will  continue  to  be  directors  until  their  buc 
cessors  are  elected  and  qualified,  though  they 
1 1 1 ;  i  \   for  a  time  be  interrupted  in  the  discharge 

Of    their   duties:    and    such    successors    niu-t    be 

chosen  as  provided  in  the  statute. —  State  es 
rel.  v.  Bonnell,  35  Oh.  St.  10  (1878). 

Abandonment  of  office. 

Where  a  company  is  insolvent  and  exer- 
cises none  of  its  powers  for  a  long  time,  say 
sixteen  years,  directors  elected  before  the 
suspension  of  business  will  not  be  held  to  have 
continued  in  office  although  the  charter  pro- 
vided directors  should  continue  in  office  until 
their  successors  were  elected.  So  long  a  sii- 
pension  from  the  performance  of  any  official 
duty  will  be  regarded  as  an  abandonment  or 


nation    of    the    office.      Bartholomew    v. 

Bentley,  I  <>h.  St.  :::   <  1852). 

Loss  of  special  charter. 

Where    a    corporation    operating    under    a 

special    charter    act-    under    i  hi-    section    by 
changing   the   time  "t    its   election,   it    will   be 

held    to   have   lii-conic   a    cm  p.  mi  t  ion    under   the 

present     constitution.      State    ex    rel.    \.    La 

kamp.  4  ().('.  <  .  257   '  L889)  j   9.  c,  2  C.  I  >.  533. 

Purchase    of    stock    to    increase    voting 
power. 

See  Taylor   v.   Miami   Exporting  <  o..  6  Oh. 
176   (ls:;:,;). 
See  further  as  to  elections,  note-  to  I  3244. 

Rights  of  state  as  a  stockholder. 

See  Harper  v.  Ampt,  32  Oh.  St.  291    (1877). 


§  3247.  OATH  AND  DUTIES  OF  TRUSTEES  AND  DIRECTORS.—  Each  trustee 
and  director  shall,  before  entering  upon  his  duties,  take  an  oath  faithfully  to  dis- 
charge the  same;  the  trustees  or  directors  chosen  at  any  election  shall,  as  soon  there- 
after as  may  be  convenient,  choose  one  of  their  number  to  be  president,  and,  unless 
the  regulations  otherwise  provide  for  the  election  of  such  officers,  shall  appoint  a 
secretary  and  treasurer  of  the  corporation;  and  a  majority  of  the  trustees  or  directors 
shall  form  a  board.      (R.  S.    1880.) 


Oath  of  officers. 

Where  an  officer  of  a  corporation  has  not 
been  sworn,  he  is  nevertheless  a  de  facto 
officer,  and  his  acts  as  such  are  binding  as  to 
third    parties. —  Simpson   v.   Garland,    76   Me. 

203    (1884). 

Contract    to     secure    a    corporate     office 
for  another,  when  void. 
See  Magill  v.  Rendigs,  12  Dec.  558  (1902). 

Majority  constitutes  quorum. 

A  majority  of  the  board  constitutes  a 
quorum  for  the  transaction  of  business. — 
Wiekersham  v.  Crittenden,  93  Cal.  17  (1892); 
Ex  parte  Willcocks,  7  Cow.  (N.  Y.)  402  (1827  I  ; 
St.  Louis,  etc.,  Ass'n  v.  Hennessy,  11  Mo.  App. 
555    (1882). 

Majority  of  quorum  may  act. 

Where  the  necessary  quorum  is  lawfully 
assembled,  a  majority  of  its  members  may 
act.—  Buell  v.  Buckingham,  16  la.  2S4  (I860)': 
Hax  v.  Davis  Mill  Co.,  39  Mo.  App.  453  (1889). 

Acts  by  less  than   quorum. 

The  acts  of  directors  done  at  a  meeting  at 
which  a  quorum  is  not  present,  are  voidable 
at  the  election  of  the  corporation,  but  it  may 
waive  its  rights  by  delay  and  acquiescence. — 
See  U.  S.,  etc.,  Co.  v.  Atlantic,  etc.,  R.  R.  Co., 
34  Oh.  St.  450  (1878). 

Directors  must  act  as  a  board. 

The  directors  must  act  together  as  a  board 
to  bind  the  company,  the  individual  members 
have   no   authority.—  See   McCortle  v.   Bates, 


29  Oh.  St.  419  (1876)  ;  Young  v.  Taylor  Street 
Church.  5  X.  P.  378  I  1898)  ;  -.  c,  7  Dec.  -flit; 
Ohio  ex  rel.  v.  Treasurer.  22  I  >h.  St .  Ill  (1871). 

Directors  cannot  vote  by  proxy. 

A  director  cannot  vote  at  a  meeting  of  a 
board  of  directors  by  proxy,  hence  in  count- 
ing a  quorum,  lie  cannot  be  regarded  as  pres- 
ent by  proxy. —  Ohio,  etc..  I'.ank  v.  Walton, 
etc.,  Iron  Co.,  30  W.  L.  B.  382  (1893). 

Proof  as  to  officers. 

The  records  of  a  corporation  are  the  best 
evidence  as  to  its  officers,  but  it  is  competent 
to  prove  that  such  officers  exist  by  the  admis- 
sions of  the  corporation.  Newspaper  state- 
ments and  the  understanding  of  a  witness 
from  such  sources  is  no  evidence  as  to  who 
are  directors  of  a  bank. —  State  ex  rel.  v. 
Buchanan,  Wright,  233  (1833). 

Records  of  corporation  as  evidence. 

Where  a  party  introduces  in  evidence  a  por- 
tion of  an  entry  in  the  record-  of  a  corpora- 
tion, the  company  may  introduce  the  re- 
maining portion  and  in-ist  upon  proper  in- 
structions upon  the  whole  entry  by  the  i 
— -Stillwater  Turnpike  Co.  v.  Coovcr,  25  Oh. 
St.  558   (1874). 

Same  subject  —  sealed  pages. 

Where  certain  pages  of  a  record  book  are 
placed  in  evidence,  and  the  other  ;  ages  of  the 
book  are  sealed  up  or  fastened  together,  it  is 
not  sufficient  to  entitle  counsel  to  cross-ex- 
amine as  to  the  pages  so  sealed,  to  offer  to 
prove  that  they  contain  matter  pertinent  to 


126 


Private  Corporations  in  Ohio. 


Directors  or  Trustees  —  Oath,  Duties,  etc.,   §  3247. 


the  questions  to  be  determined,  when  opposing 
counsel  state  that  they  have  no  relevancy 
in  i  lie  ease.  To  entitle  to  an  examination  of 
the  portion  so  sealed,  the  proper  action  should 
be  taken  under  SS  5290,  5291.— Toledo,  etc., 
Ry.  Co.  v.  Toledo,  etc.,  Ky.  Co.,  12  O.  C.  C. 
367   (1893)  ;  s.  c,  5  C.  D.  643. 

Approval  of  minutes. 

The  approval  of  the  minutes  of  previous 
meetings  of  a  board  of  directors  is  an  approval 
of  the  form  of  statement  or  correctness  of 
previous  proceedings. — Ohio,  etc.,  Bank  v. 
Walton  Iron  Co.,  30  W.  L.  B.  382   (1S93). 

Ambiguity   in   proceedings   of   directors 
—  construction. 

\\  here  the  proceedings  of  the  directors  are 
ambiguous,  they  will  be  so  construed,  if  pos- 
sible,  as  to  make  them  consistent  and  har- 
monious.—  East  Cleveland,  etc.,  Ry.  Co.  v. 
Everett,  19  0.  C.  C.  205   (1900). 

Interpretation  of  records. 

When  called  upon  to  interpret  the  records 
of  directors  of  a  corporation,  the  court  will 
look  to  the  whole  record  to  ascertain  their  in- 
tention.— Lockwood  v.  Wildman,  13  Ohio,  430 
(1844). 

Compensation  of  officers. 

Where  directors  of  a  corporation  appoint 
one  of  their  number  secretary,  he  is  entitled 
to  reasonable  compensation  for  his  services 
where  it  was  the  intention  of  all  the  parties 
that  he  should  be  paid,  although  no  express 
contract  was  made  and  no  provision  was  con- 
tained in  the  by-law  authorizing  his  compen- 
sation.—  Dalton  v.  Brush  Elec.  Co.,  13  0.  C. 
C.  505  (1897);  s.  c,  7  C.  D.  141;  Taussig  v. 
St.  L.,  etc.,  Ry.  Co.,  65  S.  W.  Rep.  (Mo.)  969 
(1901). 

Same  subject. 

Directors  are  entitled  to  reasonable  com- 
pensation for  their  time  and  expense  incurred 
in  Lining  to,  attending,  and  returning  from 
meetings  of  the  board. —  State  ex  rel.  v. 
Peoples,  etc.,  Ass'n,  42  Oh.  St.  579   (1885). 

Same  subject  —  back  pay. 

Directors  or  trustees  having  accepted  com- 
pensation  for  services  for  a  particular  year 
have  no  power  to  vote  themselves  back  pay 
for  services  during  such  former  year. —  State 
ex  rel.  v.  Peoples,  etc.,  Ass'n,  42  Oh.  St.  579 
(1885). 

Same    subject  —  services   as   agents. 

Where  directors  or  trustees  act  for  the  cor- 
poration &s  secretary,  treasurer,  general  or 
special  agent,  they  are  not  entitled  to  com- 
pensation  in  the  absence  of  a  special  agree- 
ment. State  ex  rel.  v.  Peoples,  etc.,  Ass'n. 
\1  Oh.  St.  579  I  L885)  ;  McMullen  v.  Ritchie,  64 
Fed.  253  (1894);  s.  c,  8  O.  F.  D.  314. 

Election  of  president  by  stockholders. 

Under  the  Colorado  statutes,  which  pro- 
vide that  the  directors  or  trustees  shall  elect 


one  of  their  number  to  be  president,  it  was 
held  that  an  election  of  president  by  the 
stockholders  was  a  nullity,  and  therefore  such 
person  would  have  no  authority  to  bind  the 
corporation  by  signing  a  promissory  note. — 
Walsenberg  Water  Co.  v.  Moore,  5  Colo.  App. 
144    (1894). 

Power  of  president  by  virtue  of  office. 

The  president  pro  tempore  of  an  insolvent 
corporation  has  no  authority  by  virtue  of  his 
office,  to  execute  a  mortgage  on  the  property 
of  the  company  or  an  assignment  for  the  bene- 
fit of  creditors. —  Commercial  Nat.  Bank  v. 
Cincinnati  Nat.  Bank,  3  O.  C.  C.  513,  516 
(1889);    s.   c,  2   C.   D.   295. 

Authority  of  president  —  presumption. 

A  deed  executed  by  the  president  of  a  com- 
pany in  due  form  under  the  seal  of  the  corpo- 
ration and  delivered,  will  be  presumed  to  have 
been  authorized  by  the  directors,  and  the 
mere  fact  that  such  authority  is  not  found  on 
their  minutes  will  not  rebut  the  presumption. 
—  Cincinnati,  etc.,  R.  R.  Co.  v.  Harter,  26  Oh. 
St.  426   (1875). 

Power  of  president  to  bring  suits. 

Without  specific  authority  from  the  board 
of  directors,  the  president  of  an  insolvent  cor- 
poration has  authority  to  bring  and  defend 
actions  to  protect  the  property  of  the  corpora- 
tion.—  Kalb  v.  American  Nat.  Bank,  21  O.  C. 
C.  1   (1900). 

Authority  of  president   to   sign  notes  — 
presumption. 

In  the  absence  of  statute  or  by-law  limiting 
his  authority,  the  president  of  a  corporation, 
as  its  legal  head,  is  presumed  to  be  authorized 
to  bind  the  corporation  by  his  acts  in  its 
name,  and  notes  so  executed  by  him  are  pre- 
sumptively valid  against  the  corporation. — 
Dexter,  etc.,  Bank,"  v.  Friend,  90  Fed.  703 
(1898). 

Power  of  president  to  sign  notes. 

Notes  of  a  corporation  signed  in  its  name  by 
its  president  and  secretary,  payable  to  its 
president's  order,  are  presumptively  unau- 
thorized, and  subsequent  indorsees,  though  for 
value  and  in  good  faith  and  before  maturity, 
take  with  notice. —  Arnkens  v.  Rouse,  26  W. 
L.  B.  221  (1891).  See  Ry.  Co.  v.  Bank,  50  Oh. 
St.  351    (1897). 

Power    of    president    to     sign    cognovit 
notes. 

The  president  of  a  corporation  has  no  power, 
by  virtue  of  his  office,  to  execute  a  bond  and 
warrant  of  attorney,  for  the  entry  of  judg- 
ment by  confession  against  the  corporation. 
Such  power  is  vested  in  the  board  of  directors 
only,  but  the  president's  authority  may  be 
changed  beyond  the  powers  inherent  in  his 
office  by  the  consent  and  acquiescence  of  the 
directors  in  permitting  him  to  take  control  of 
the  business  of  the  corporation.  Where,  there- 
fore, it  appears  that  the  president  had  no  au- 


General  Corporation  Law. 


127 


Directors  or  Trustees  —  Oath,  Duties,  etc.,   §  3247. 


thority  to  sign  a  cognovit  note  for  the  corpo- 
ration, and  that  there  was  no  ratification  of 
such  action  by  the  directors  or  a  majority  of 
the  stockholders,  a  judgment  against  the  cor- 
poration on  such  cognovit  note  could  be  el 
aside.  -Smead  Foundry  Co.  \.  < 'hesbrough,  18 
O.  C.  C.  783  (1895) ;  s.  c,  6  C.  D.  670. 

Authority   of  president   to   sign  notes  — 
liability  of  corporation. 

A  negotiable  note  executed  in  the  name  of  a 
corporation  by  an  officer  or  agent  having  no 
authority  to  issue  such  paper  in  its  behalf,  is 
void;  but  if  the  officer  or  agent  have  authority 
to  issue  notes  of  the  corporation  for  any  pur 
pose,  such  note  is  valid  and  enforceable 
against  the  corporation  in  the  hands  of  a 
bona  fide  holder,  although  executed  for  an 
unauthorized  purpose. —  Dexter,  etc.,  Bank  v. 
Friend,  90  Fed.  703  (1898). 

Power  of  president. 

The  president  of  a  corporation  to  whom  a 
bond  has  been  delivered  by  the  board  of  direct- 
ors in  trust  for  sale  has  no  right  to  convert 
such  bond  to  his  own  use  in  payment  of  a 
claim  due  him  from  the  corporation,  without 
the  consent  of  the  board  of  directors. —  Green- 
ville Gas  Co.  v.  Reis,  54  Oh.  St.  549   (1890). 

Authority  of  president  and  secretary  to 
issue  stock. 

The  president  and  secretary  are  the  cor- 
poration for  the  purpose  of  issuing  and  trans- 
ferring stock,  their  acts  being  the  acts  of  the 
corporation. —  Ry.  Co.  v.  Bank,  56  Oh.  St. 
351,  378  (1897);  reversing  24  W.  L.  B.  98, 
and  other  cases.     See  §  3254. 

Authority  of  secretary  as  to  stock. 

See  Farmers'  Bank  v.  Deebold  Safe,  etc.,  Co., 
47  W.  L.  B.  585   (1902). 

Power    of    president     and    secretary    to 

execute  mortgage. 

See  Bosche  v.  Toledo  Display  Horse  Co., 
14  O.  C.  C.  289  (1897)  ;  s.  c,  7  C.  D.  374. 

Power  of  vice-president  to  sign  notes. 

Where  no  authority  is  conferred  upon  the 
vice-president  of  a  company  by  its  regula- 
tions or  by-laws,  and  when  he  has  not  been 
accustomed  to  sign  notes  for  it,  the  company 
is  not  liable  on  notes  signed  bv  him. —  Morris 
v\  Griffith,  34  W.  L.  B.   191   (1*895). 

Duties  of  treasurer. 

Where  a  charter  creates  the  office  of  treas- 
urer, it  becomes  one  of  his  duties  from  the 
nature  of  his  office  to  receive  and  account  for 
money,  and  the  sureties  on  his  official  bond 
conditioned  that  he  shall  perform  his  duties 
according  to  the  regulations  of  the  charter  are 
responsible  for  money  which  may  come  into 
his  hands  as  treasurer. —  Portage  Co.  Ins.  Co. 
v.  Wetmore,  17  Oh.  330  (1848). 


Treasurer  of  preliminary  organization 
again  elected  for  corporation  —  lia- 
bility  to   account    to    corporation. 

W  here,  a  i   i  he  preliminary  ra  i 
the    incorporation   of   an 
profit,  a  party  ia  elected  treasurer,  and  after 
the  incorporation   is  effected   is  again   • 
as  treasurer,  and  all  the  moneys  in  her  hands 
came  to  her  practically  after  such  new  elec- 
tion, if  she  was  then  elected  treasurer  of  the 
corporation,  then  the  corporation    i     i 
to   an    accounting    for   Buch    moneys. —  Muhl 
hauser  v.  The  Cleveland  Hospital,  21  O.  C.  C. 
88   (1900). 

Secretary  is  not  laborer. 

The  services  performed  by  the  secretary  oi 
a  company  are  not  labor  within  §  6355,  al- 
though he  at  times  performed  manual  labor. — 
Green  v.  Weller,  6  0.  C.  ('.  351  (1892);  s.  <  .. 
3  C.  D.  488.  See  In  re  Armleder,  etc.,  <  o.}  20 
0.  C.  C.  699  (1900). 

Directors  are  not  operators. 

The  directors  of  a  company  are  not  opera- 
tors within  the  statute  giving  operators  and 
laborers  a  first  lien  on  assets  in  the  hands  of 
an  assignee. —  Williams  v.  Southard.  40  W.  L. 
B.  287   (1898). 

Power  of  attorney  to  make  and  indorse 
notes  to  his  own  order. 

See,  as  to  duty  of  indorsee  to  inquire  as  to 
authority     of     an     agent   and   as   to    implied 
agency  from  previous  acts.  Holmes  v.    Have-. 
52  Oh.  St.  617;  s.  c,  32  W.  L.  B.  340   (18 
Arnkens  v.  Rouse,  26  W.  L.  B.  221    (1893). 

Liability  of  officer  for  unauthorized 
acts. 

An  officer  of  a  company  who  executes  nego- 
tiable paper  in  the  name  of  the  corporation  is 
liable  to  a  bona  fide  purchaser  of  the  pap.  r  i 
an  action  for  damages  for  falsely  representing 
his  authority  where  he  had  no  authority  to 
issue  paper  for  any  purpose,  and  the  notes  are 
consequently  void ;  but  where  he  had  author- 
ity to  execute  notes  in  the  business  of  the  cor- 
poration, although  he  abused  his  authority  by 
executing  them  for  an  unauthorized  purpose, 
he  is  not  liable  to  the  holder,  as  the 
are  binding  on  the  corporation  as  represented, 
and  his  liability  is  to  the  corporation  alone. — 
Dexter,  etc.,  Bank  v.  Friend,  90  Fed.  703 
(1898). 

Removal  of  officers  for  cause. 

See  paper  by  W.  E.  Taleott,  17  \V.  L.  B.  130. 

Powers  of  cashier  of  bank. 

The  cashier  of  a  bank  cannot  make  for  his 
bank  a  contract  in  regard  to  a  subject-matter 
outside  of  the  usual  business  of  the  bank,  and 
outside  of  the  business  usually  performed  by 
cashiers. —  First  Nat.  Hank  v.  Mansfield  Sav- 
ings Bank.  10  O.  C.  C.  233  (1894^  6  C.  D. 
452. 


128 


Private  Corporations  in  Ohio. 


Directors  and  Trustees  —  Powers,  etc.,  §  3248. 


Power   of  president   of  bank  to  borrow 

money. 

See   Armstrong  v.   Chemical   Nat.  Bank,  83 
Fed.  566  (1897)  ;  s.  c,  70  Fed.  339. 


Power  of  officers  of  bank  fixed  by  cus- 
tom. 

See   Armstrong  v.   Chemical  Nat.   Bank,  83 
Fed.  5(50    (1S97). 


§  3248.  POWERS  OF  DIRECTORS  AND  TRUSTEES.— The  corporate  powers, 
"business,  and  property  of  corporations  formed  under  this  title  must  be  exercised,  con- 
ducted, and  controlled  by  the  board  of  directors,  or,  where  there  is  no  capital  stock,  by 
the  board  of  trustees;  a  majority  of  the  directors  must  be  citizens  of  the  state;  all 
directors  and  all  the  executive  officers  must  be  holders  of  stock  in  an  amount  to  be 
fixed  by  the  by-laws,  and  trustees  of  corporations  must  be  members  thereof;  and 
whenever  the  office  of  director  or  trustee  becomes  vacant,  the  board  of  directors  or 
trustees  may  fill  the  same  for  the  unexpired  term  by  appointment,  unless  the  by-laws 
otherwise  provide;  and  no  person  shall  be  appointed  or  act  as  a  receiver  of  any  rail- 
road or  other  corporation  within  this  state  unless  he  be  a  resident  citizen  of  this  state. 


Qualifications  of  directors. 

In  the  absence  of  statute  requiring  it,  the 
directors  need  not  be  stockholders. —  State 
ex  rel.  v.  McDaniel,  22  Oh.  St.  354  (1872). 

Same  subject. 

Where  one  of  the  directors  acting  in  a  trans- 
action for  a  company  has  ceased  to  own  stock 
in  it,  he  will  be  recognized  as  a  de  facto  offi- 
cer, and  the  transaction  held  valid,  although 
were  his  status  not  collaterally,  but  directly 
attacked,  the  office  would  be  declared  vacant. 
—  Campbell  P'tg.  Co.  v.  Bellman  Bros.  Co.,  11 
O.  C.  C.  360   (1896)  ;  s.  c,  5  C.  D.  389. 

Same  subject. 

A  person  who  holds  one  share  of  stock  in  a 
corporation  may  serve  as  a  director  thereof, 
although  he  is  a  party  to  an  outstanding 
executory  contract  providing  that  he  shall,  at 
the  option  of  the  purchaser  named  therein,  sell 
his  single  share  of  stock  at  a  price  named 
therein.  So  long  as  that  option  has  not  been 
exercised,  tne  stock  is  still  his. —  Kuhn  v. 
Woolson  Spice  Co.,  13  O.  C.  C.  547   (1897). 

Same  subject. 

A  director  will  be  presumed  to  be  a  stock- 
holder until  the  contrary  appears.  And 
where  there  are  but  five  stockholders,  each 
will  be  presumed  to  be  a  director. —  Butter- 
field  v.  Radde,  6  J.  &  S.  (N.  Y.)  1  (1874); 
Gates  v.  Tippecanoe  Stone  Co.,  9  O.  C.  C.  99, 
103  (1894);  s.  c,  6  C.  D.  23. 

Same  subject. 

Where  a  corporation  required  to  have  resi- 
dent officers  elected  a  nonresident  treasurer, 
the  court  enjoined  the  corporation  from  com- 
pelling  the  resident  treasurer  from  turning 
over  the  securities,  moneys,  etc.,  of  the  cor- 
poration to  the  nonresident  treasurer. —  Mat- 
thew-, v.  Trustees,  2  Brewst.  (Pa.)  541  (1868). 

Same  subject. 

A  person  who  holds  and  owns  no  stock  in  a 
corporation  may  be  voted  for  and  elected  a 
director   thereof,   and    afterward    qualify   him- 


self by  acquiring  one  or  more  shares  as  owner 
in  good  faith  and  in  his  own  right. —  Green- 
ough   v.  Alabama,  etc.,  R.  R.  Co.,  64  Fed.  22 

(1894). 

Same  subject. 

Where  the  statute  requires  directors  to  be 
stockholders  and  to  reside  in  the  state,  if 
either  qualification  ceases  the  office  ceases,  and 
it  is  not  a  qualification  if  a  share  of  stock  is 
transferred  without  compensation  to  a  di- 
rector merely  to  qualify  him.  he  having  no 
real  interest  in  the  stock. —  Bartholomew  v. 
Bentley,  1  Oh.  St.  37  (1852).  See  Henderson 
v.  Hogan,  1  W.  L.  B.  227  (1876)  ;  State  ex  rel. 
v.  Bryce,  7  Oh.   (pt.  2)   82   (1836). 

Same  subject. 

As  to  residence  of  directors  of  consolidated 
railroad  companies,  see  §  3385. 

Same  subject. 

As  soon  as  a  director  parts  with  all  bene- 
ficiary interest  in  and  control  over  the  stock 
which  he  is  required  to  hold,  and  causes  the 
officers  of  the  corporation  to  have  knowledge 
of  such  fact  by  a  request  for  a  transfer  of 
stock,  he  no  longer  possesses  the  qualifications 
which  the  statute  declared  to  be  essential,  and 
the  statute  executing  itself  operates  to  divest 
him  of  title  to  the  office  which  he  had  ceased 
to  be  qualified  to  hold. —  Commercial  Nat. 
Bank  v.  Colwell,  132  N.  Y.  250    (1892). 

Same  subject. 

Where  an  association  is  organized  under 
§  3686  et  seq..  its  directors  must  be  members. 

—  State  ex  rel.  v.  Mfgs.,  etc.,  Ass'n,  50  Oh.  "St. 
145    (1893). 

Same  subject. 

Where  the  charter  of  a  company  provides 
that  no  director  of  any  other  company,  or  the 
partner  of  a  director  of  any  other  company, 
shall  be  a  director  of  that  company,  it  applies 
as  well  to  foreign  as  to  domestic  corporations. 

—  State    ex    rel.    v.    Buchanan.    Wright,    233 
(1833). 


(  rENERAL    <  !ORPl  (RATION    LAW. 


129 


Directors  and  Trustees — Powers,  etc.,   8  3248. 


Same  subject. 

Where  a  corporation  moves  all  its  property 
and  business  to  another  state,  its  directors, 
though  losing  their  residence  here  are  still  <le 
facto  officers,  and  may  hind  the  company. 
Lattimer  v.  Mosaic  Glass  Co.,  13  O.  C.  C  163 
(1896);   s.  e.,  7  C.  D.  430. 

Care  required  of  directors    of  corpora- 
tions. 

Directors  of  corporations  are  required  to 
use  ordinary  care  in  the  management  of  its 
affairs,  to  be  determined  in  view  of  all  the 
circumstances  under  which  they  are  placed 
with  reference  to  the  affairs  of  the  company. 
Robison  v.  Cleveland  City  Ry.  Co.,  13  Dec.  1. 

Rights  of  innocent  purchasers  of  quali- 
fication shares. 

Where  a  corporation  issues  to  one  of  its 
directors  a  share  of  stock  to  qualify  him,  he 
agreeing  to  reconvey  the  same  on  ceasing  to 
be  a  director,  a  person  purchasing  said  share 
in  good  faith,  without  notice,  has  a  superior 
right  to  that  of  the  company. —  Dueber,  etc., 
Co.  v.  Dougherty,  62  Oh.   St.   589    (1900). 

Power    of    stockholders    to    control    the 
board. 

A  contract  of  consolidation,  which  provides 
that  no  evidence  of  funded  debt  or  leases 
imposing  fixed  charges  shall  be  created  with- 
out the  consent  of  a  majority  in  interest  of 
the  holders  of  preferred  stock,  does  not  con- 
flict with  this  section. —  Burke  v.  Cleveland, 
etc.,  Ry.  Co.,  22  W.  L.  B.  11   (1889). 

Same  subject. 

It  may  be  well  doubted  whether  a  general 
meeting  of  the  stockholders  of  a  company  can 
be  legally  held  for  any  other  purpose  than  the 
election  of  a  board  of  directors.  Such  a  meet- 
ing as  to  any  other  purpose  or  object  could 
only  be  in  its  character  advisory  to  the  board 
of  directors.  It  would  have  no  power  to  take 
under  its  charge  or  put  under  the  charge  of 
others  the  affairs  of  the  company. —  Dayton, 
etc.,  R.  R.  Co.  v.  Hatch,  1  Dis.  84,  91  (1855). 
See  Sims  v.  Street  R.  R.  Co.,  37  Oh.  St.  556, 
565  (1882) ;  Donner  v.  Dayton,  etc.,  R.  R.  Co., 
1  C.  S.  C.  130,  140   (1871)*. 

Contracts  depriving  the  board  of  power, 
It  seems  that  a  contract  with  a  company, 
e.  g.,  stock  subscriptions,  cannot  be  so  made 
as  to  deprive  the  board  of  directors  of 
general  control  of  the  corporate  business. — 
See  Port  Clinton,  etc.,  R.  R.  Co.  v.  Cleveland. 
etc.,  R.  R.  Co.,  13  Oh.  St.  544,  560  (1862). 

Acts  of  de  facto  directors. 

Where  persons  are  de  facto  directors,  their 
acts  are  entitled  to  the  same  respect  as  if  they 
were  lawfully  elected,  unless  called  in  ques- 
tion in  a  direct  proceeding. — Campbell  P"to-. 
Co.  v.  Bellman  Bros.  Co..'  11  O.  C.  C.  360 
(1896)  ;  s.  c,  5  C.  D.  389;  Raymond  v.  Spriug- 

LAW    GOV.    PRIV.    COR.  — Q. 


grove,  etc.,  Ry,  Co.,  21    \V.   I  .  B.   103   I  I 
Ehrma  n    v.   I  nion    ete.,    Ins.   '  o     35  01 
324,   339    i  1880)  .    <  hamberlain   v.   Painesville, 
•  tc  .   I:    R    Co     15  Oh    B\    225   1 1864)  :    l  irst, 
etc.,  Society   v.  First,  et< 
128,    133   (1874). 

The  whole  board  must  manage. 

Mie  business  of  a  corporation  musl  be  man- 
aged by  the  whole  board  lawfully  elected.  Foi 
the  company  to  exclude  three  of  the  directors 
from  the  exercise  of  the  duties  of  their  office 
is  contrary  to  the  laws  of  the  state,  and  a 
denial  of  the  right  given  by  the  law  - 
stockholders,  to  have  those  direct 
by  them  serve  as  such.  State  ex  rel.  v  Ohio 
etc.,  Ry.  Co.,  6  0.  C.  C.  412;  s.  c,  3  C.  I).  516: 
s.  c,  49  Oh.  St.  COS    (lsdi'i. 

■When  vacancies  cannot  be  filled. 

Where  a  corporation  has  been  inactive  for  a 
long  time,  and  its  board  of  directors  has  done 
nothing,  it  will  be  presumed  that  the  officers 
have  resigned  and  abandoned  the  offices,  and 
they  cannot,  by  fillin<.r  the  vacancies  in  the 
board,  reorganize  the  corporation. —  Barthol- 
omew v.  Bentley,  1  Oh.  St.  37   (1852). 

Same  subject. 

If  a  majority  of  the  directors  of  a  corpora- 
tion regularly  elected  resign  or  disqualify 
themselves  by  transferring  their  stock,  the 
remaining  directors,  beinp  a  minority,  have  no 
power  to  fill  vacancies. —  Moses  v.  Tompkins, 
84   Ala.   613    (1887). 

Power  of  board  over  unissued  stock. 

The  board  of  directors  of  a  company  has 
power  to  sell  or  dispose  of  that  portion  of  the 
authorized  capital  stock  not  taken  before  the 
corporation  was  authorized. —  Sims  v.  Street 
R.  R.  Co..  37  Oh.  St.  556  (1882).  See  Davton. 
etc..  R.  R.  Co.  v.  Hatch.  1  Dis.  84  (1855); 
Peter  v.  Union  Mfg.  Co.,  56  Oh.  St.  181,  197 
(1897);  James  v.  Cincinnati,  etc.,  R.  R.  Co., 
2  Dis.  261    (1858). 

Same  subject. 

Directors  will  not  be  restrained  from  selling 
a  part  of  the  unsubscribed  capital  stock  to 
persons  friendly  to  them  when  they  do  so  at 
public  sale,  and  at  no  pecuniary  loss  to  the 
company. —  Lomis  v.  Dexter.  20  W.  L.  1'..  •"> 
(1888).' 

Same  subject. 

Directors  cannot  issue  treasury  stock  to 
themselves  without  the  payment  of  a  valuable 
consideration. —  Straman  v.  Xorth  Baltimore 
Water  Works  Co.,  8  O.  C.  C.  89  (1893)  ;  s.  c, 
4   C.   D.   339. 

Power  to  sell  property. 

The  directors  of  a  corporation,  not  the 
stockholders,  are  the  proper  body  to  make 
sale  of  corporate  propertv. —  Donner  v.  Dav- 
ton. etc..  R.  R.  Co.,  1  C.  S.  C.  130.  140  (1S71*). 


130 


Private  Corporations  in  Ohio. 


Directors  and  Trustees  —  Powers,  etc.,   §   3248. 


Power  of  trustees  of  religious  society  to 

sell  real  estate. 

The  trustees  of  a  religious  society  organized 
under  §  3241  have  no  power  to  dispose  of  the 
society's  real  estate  without  the  consent  of 
members.— South  Kenton,  etc.,  Ass'n  v.  Espy, 
17   O.  C.  C.  524    (1899)  j   8.  c,  9  C.  D.  695. 

Power  to  institute  suits. 

The  power  of  commencing  and  disposing  of 
the  company  lawsuits  is  in  the  directors.— 
Wadsworth  v.  Davis,  13  Oh.  St.  123,  130 
(1862).  See  Kalb  v.  American  Nat.  Bank,  21 
o.  C.  C.  1   (1900). 

General   powers   of  directors. 

A  provision  in  a  charter  "  that  the  directors 
shall  have  power  to  do  whatever  shall  appear 
to  them  to  be  necessary  and  proper  to  be  done 
for  the  well-ordering  of  the  interests  of  the 
proprietors  not  contrary  to  the  laws  of  the 
state."  is  not  intended  to  give  unlimited 
power,  but  the  exercise  of  discretion  within 
the  scope  of  the  authority  conferred. —  Beatty 
v.  Lessee  of  Knowles,  4  Pet.  (U.  S.)  152 
(1830). 

Duty  to  keep  books. 

The  |»owers  conferred  upon  directors  impose 
corresponding  duty  to  make  such  by-laws  and 
to  keep  such  accounts  and  books  as  are  neces- 
sary in  the  proper  exercise  of  the  powers. — 
Freon  v.  Carriage  Co.,  42  Oh.  St.  30,  40 
(1884). 

Powers    of    nonresident    receivers. 

See  Caldwell  v.  Pittsburg,  etc.,  R.  R.  Co., 
33   \V.  L.  B.   134   (1894).    See   §   3415. 

Contract  of  directors  with  their  corpo- 
rations. 

Because  of  their  fiduciary  relations,   directo- 
rs of  a  corporation  eann.it  purchase  for  their 
company    from    themselves   and    others   their 
own   property   or  property   in  which  they  are 
,    interested,  and  pay  for  the  same  with 
corporate  funds.     And   if  they  do  buy  such 
property,  and  so  pay  for  it,  an  action  lies  on 
behalf  of  the  company  to  compel  them  to  ac- 
count    for    the    corporate    funds    even    if    the 
minority  of  the  directors  have  no  interest  in 
the  property  sold,  and  if  all  the  stockholders 
ratify  the  purchase  of  the  property. —  Colum- 
bus,  etc.,    Ry.  '  o.   \.    Burke,   19  W.  L.  B.  27 
387). 

Same  subject. 

A  contract  between  a  corporation  and  its 
officers  i-  not    void  per  se,  but  is  merely  void- 

al  the  option  of  the  corporation,  provided 
there  is   no  estoppel.    -Browne  v.  U.  S.,  etc., 

6  X.  P.  254   I  L899)     -    c,  20  0.  C.  C  351. 
-  i  reel    R.  R.  Co.,  37  Oh.  St.  556, 

(1882);  Taylor  v.  Miami  Exporting  Co., 
6  Oh.  176,  223  (1833);  Larwill  v.  Burke,  19  O. 
(     C.  449    (1900). 


Same  subject. 

The  sale  of  stock  made  to  one  member  of 
the  board  of  directors  with  the  consent  of  the 
others,  and  the  payment  of  the  par  value 
thereof,  when  the  transaction  is  free  from 
fraud  and  is  beneficial  to  the  corporation, 
will  not  be  set  aside  at  the  instance  of  a  stock- 
holder when  no  action  has  been  taken  to  with- 
hold such  stock  from  subscription  or  sale. — 
Sims  v.  St.  R.  R.  Co..  37  Oh.  St.  556  (1882). 
See  Taylor  v.  Miami  Exporting  Co.,  6  Oh.  176, 
223  (1833). 

Purchase   of   corporate   property  by   di- 
rectors. 

A  director  cannot  purchase  property  of  the 
corporation  either  directly  or  indirectly,  ex- 
cept for  full  consideration,  and  a  sale,  if  made, 
will  be  sot  aside  upon  objection  made  by  the 
corporation,  its  stockholders,  or  even  a  bond- 
holder.—  Secor  v.  Maumee  Rolling  Co.,  1  N. 
P.  100   (1894);   s.  c,  1  Dec.  80. 

■When   directors   may   act   for  two   com- 
panies. 

A  contract  made  between  two  corporations 
through  their  respective  boards  of  directors  is 
not  voidable  at  the  election  of  one  of  the  par- 
ties thereto  from  the  mere  circumstance  that 
a  minority  of  its  board  of  directors  were  also 
directors  of  the  other  company. —  U.  S.,  etc., 
Co.  V.  Atlantic,  etc.,  R.  R.  Co.,  34  Oh.  St.  450 
(1878).  See  Goodin  v.  Cincinnati,  etc..  Canal 
Co.,  18  Oh.  St.  169,  182  (1868);  Henry  v. 
Pittsburg,  etc.,  Ry.  Co.,  2  N.  P.  118,  154 
(1895). 

Directors    are    charged    with    notice    of 
board   proceedings. 

The  director  of  a  corporation  dealing  in  its 
property  on  his  own  account  is  chargeable 
with  notice  of  the  action  of  the  board  of  di- 1 
rectors  as  to  such  property  whether  he  was 
present  or  not  at  the  meeting  which  took  such 
action.— Greenville  Gas  Co.  v.  Reis,  54  Oh. 
St.  549   (1896). 

Notice   to   two    directors   will  not    work 
ratification. 

The  fact  that  two  directors  of  a  company 
know  that  a  person  is  performing  services  for 
the  company,  without  authority,  will  not 
bring  notice  to  the  board  of  directors,  nor 
work  a  ratification  by  the  board  of  the  con- 
tract of  hiring  — See  East  Cleveland,  etc., 
Ry.  Co.  v.  Everett,  19  O.  C.  C.  205   (1900). 

When    knowledge    of    director    imputed 
to  corporation. 

A  corporation  may  be  charged  with  knowl- 
edge of  a  transaction  through  its  agents  in  the 
same  manner  and  to  the  same  extent  as  pri- 
vate persons,  but  it  must  be  while  the  director 
is  engaged  in  the  business  of  the  corporation 
and  is  authorized  to  transact  it.  Notice  to  a 
director  not  engaged  in  the  precise  business 
intrusted  to  him  is  not  notice  to  the  company. 


General  Corporation   L.\ 


w. 


131 


Directors  and  Trustees  —  Powers,  etc.,   §  3248. 


For  instance,  the  knowledge  of  the  payee  <>f  a 
note,  who  is  the  director  of  a  bank,  thai  th<  re 
is  a  defense  to  the  note,  does  not  Kind  the 
bank. —  Loomis  v.  Eagle  Bank,  1  Dis.  285 
(1857);  s.  c,  10  Oh.  St.  327;  Ry.  Co.  v.  Mc- 
Coy, 42  Oh.  St.  251    (1884). 

Same  subject. 

If  the  position  of  the  director  is  adverse  to 
that  of  the  corporation,  such,  for  instance,  as 
that  of  the  vendor  of  real  estate  purchased  by 
the  corporation,  then  the  knowledge  had  by 
such  officer  cannot  lie  imputed  to  the  corpora- 
tion.—Alt  v.  Weber,  20  \V.  L.  B.  4(17  (1888); 
Antioch  College  v.  Carroll,  25  W.  L.  B.  289, 
204   (1890). 

Notice  to  special  agent. 

A  company  is  bound  by  notice  to  its  special 
agent  as  to  matters  intrusted  to  him.— 
Mass.,  etc.,  Ins.  Co.  v.  Eshelman,  30  Oh.  St. 
647    (1876). 

Notice  under  §  3208. 

The  service  of  a  notice  under  §  3208  upon 
the  director  of  a  railroad  company  is  a  service 
upon  an  officer  of  the  company  within  the 
meaning  of  that  section. —  Ry.  Co.  v.  McCoy, 
42  Oh.  St.  251    (1S84). 

Admissions  by   officers. 

A  corporation  is  not  bound  by  an  admission 
made  by  an  officer  after  a  transaction  to  one 
not  connected  with  the  transaction,  when  the 
corporation  is  not  called  upon  to  say  anv  thing. 
—  Slaus,  etc.,  Co.  v.  Smith.  11  O."  C.  C.  213 
(1895)  ;  s.  c,  5  C.  D.  79.  See  Rv.  Co.  v.  Mc- 
Lean. 1  O.  C.  C.  112  (1885)  ;  s.  e„  1  C.  D.  67; 
Cincinnati,  etc.,  Co.  v.  Cincinnati,  19  O.  C.  C. 
607    (1899). 

Admissions  by   stockholders. 

Admissions  of  stockholders  not  officers  are 
not  admissible  to  charge  the  corporation. — 
Hogg  v.  Zanesville  Mfg.  Co.,  Wright,  139 
(1832). 

Liability  for   acts  of  agents. 

A  corporation  is  liable  for  the  acts  of  its 
agents  done  within  the  scope  of  the  agency 
conferred  on  them.  An  act.  though  willfully 
fraudulent  and  negligently  done  by  an  agent, 
is  within  the  scope  of  his  agency,  and  charges 
the  principal  as  to  innocent  third  parties 
where  the  acts  done  —  the  making  of  the  con- 
tract, transfer  of  stock — are  within  the  pow- 
ers conferred  on  him  as  an  agent.  In  other 
words,  if  the  extent  of  the  agency  included 
the  legitimate  doing  of  an  act  of  the  kind 
done,  then  it  will  be  liable,  though  the  act 
done  was  a  fraud  as  to  it. —  Rv.  Co.  v.  Bank, 
56  Oh.  St.  351,  388  (1897)  :'  Citizens,  etc., 
Bank  v.  Blakesley,  42  Oh.  St.  645   (1885). 

Power  of  agent  to  sign  street  improve- 
ment petition. 

See  Minor  v.  Board  of  Control,  20  O.  C.  C. 
4   (1899). 


Powers   of   pcents. 

A  corporal  ion  i-  -.<  m<  re  fid  ion  crt  ated  by 
law.  ami  mus1  therefore  ad  through  ome 
human  agency  or  it  cannot  acl  a1  a  l  These 
agencies  necessarily  differ  in  character;  many 
simply  represent  it  a-  agenl  a,  o\  hei  b  re] 
i<  as  ;,  corporation  in  what,  they  do.  ;  nd  their 

arts    are    its    act-,    as    m  ich    a  -    t  he    BU  I    od    an 

individual  done  by  himself  in  his  own  behalf 

This  is  so  as  to  all  acts  appointed  by  law  and 

its  ou  ii  i  m!:     to  i>e  done  by  a  pari  iculai 

or  agents,  and  can  be  done  by  no  other  officer 

or    agent     of    the    company,    as    i-    the    C&»      in 

issue  and  transfer  of  stock.—  Ry.  Co.  v.  Lank 
56  Oh.  St.  351,  378   (1897). 

Power  of  agent  to  sign  notes. 

Where  the  managing  agenl  of  a  corporation 
executes  a  note  in  it-  name  to  secure  a  debt 
on  which  it  is  primarily  liable  to  the  creditor, 
but  on  which,  as  1. etwee,,  it  and  a  third  per- 
son, signing  the  note,  ii  is  surety,  the  com- 
pany is  liable  thereon,  though  BO  express  au- 
thority had  been  given  the  agent  to  -,,  execute 
the  note. —  Andres  v.  Morgan,  (12  Oh.  St  j;;t; 
i 1900). 

Agency  implied   from   acquiescence. 

A  corporation  is  bound  in  the  same  manner 
as  an  individual  is  to  third  persons  who  have 
dealt  with  the  accredited  agents  of  the  com- 
pany in  good  faith,  and  in  ignorance  of  the 
want  of  authority  of  the  agent,  when  that  au- 
thority depends  on  the  proceedings  of  the 
stockholders  and  djrectors.  and  they  have 
silently  acquiesced  in  the  exercise  by  tin- 
agent. —  Armstrong  v.  Bank.  83  Fed.  55G 
(1897);  Baldwin  v.  Hillsboro,  etc..  R.  R  Co.. 
10  W.  L.  B.  337  (1853);  Powell  Too!  Co.  v. 
McDonald,  13  W.  L.  B.  64   (1885). 

Liability  of  agent  on  notes  improperly 
executed. 

The  agents  of  a  corporation  are  personally 
liable  where  they  sign  notes  in  their  own 
name  with  a  mere  description  of  office,  or 
where  the  oflice  is  described  in  the  notes  and 
their  names  are  signed  with  no  description. — 
Eells  v.  Shea.  20  O.  C.  C.  ."»27  (1900);  Titus 
v.  Kyle,  10  Oh.  St.  444  (1859);  Collins  v. 
Buckeye,  etc.  Ins.  Co..  17  oh.  St.  215  (1867); 
Bank  V.  Cook,  38  Oh.  St.  142  (1882);  Robin- 
son v.  Kanawha  Valley  Hank.  It  Oh.  St.  441 
(1886).  See  Second,  etc..  Hank  v.  Wilcox,  2 
O.  C.  C.  325  (1887)!  s.  c.  1  C.  O.  511:  Barn- 
hisel  v.  Comm.  Bank,  14  O.  0.  0.  124  (1897); 
s.  c.  7  C.  D.  533:  Snyder  v.  First  Nat.  Bank. 
22  O.  C.  C.  624    (1897). 

Receiver  is  not  agent  of  corporation. 

A  receiver  of  a  corporation  is  not  its  agent, 
and  a  contract  made  by  him  for  supplies,  as 
for  coal  for  a  railroad,  is  not  binding  on  the 
company  after  his  discharge. —  Consolidated 
Coal.  etc..  Co.  v.  Cincinnati,  etc..  R.  R.  Co.,  10 
W.  L.  B.  42   (1883). 


132 


Private  Corporations  in  Ohio. 


Directors  and  Trustees  —  Powers,  etc.,   §   3248. 


Liability  of   directors   for  issuing  false 

statements, 

Directors  who  issue  or  make  false  state- 
ments concerning  the  condition  of  their  com- 
pany are  liable  in  an  action  for  deceit  by 
those  who  rely  on  the  same,  and  are  damaged; 
as,  for  instance,  persons  who  loan  money  on 
shares  of  stock  of  the  company  as  collateral 
security.  -Merchants,  etc..  Bank  v.  Thorns, 
28  W  I  B  164;  s.  c,  :?1  W.  L.  B.  137  (1893); 
Barnes  \  Pogue,  '29  W.  L.  B.  382  (1S93); 
Barnes  v.  Swift.  3  V  1\  291  (1894):  s.  c  3 
C.  1).  688.  See  Cable  v.  Bowlus,  21  O.  C.  C. 
54   (1900). 

Power  of  directors  to  divide  up  capital 
—  estoppel. 

"Where  directors  of  a  corporation  undertake 
to  divide  up  the  entire  capital  of  the  company 
among  the  stockholders,  if  the  company  acqui- 
esces no  action  will  lie  against  them,  on  the 
theory  that  the  money  should  have  been  paid 
over  to  the  company  'and  divided  by  it. —  See 
Larwill  v.  Burke,  19  0.  C.  C.  513   (1900). 

Trust    relation    of    directors    to     stock- 
holders. 

A  relation  of  trust  and  confidence  exists  be- 
tween stockholders  and  directors,  out  of  which 
grow  the  duties  of  the  latter  to  so  administer 
the  trust  as  will  best  promote  the  interests  of 
the  former,  to  pay  them  their  appropriate 
dividends  from  time  to  time,  and  upon  the 
termination  of  the  corporation  to  distribute  to 
them  their  respective  shares  of  the  corporate 
property  after  the  payment  of  its  debts  and 
liabilities.  Every  authority  and  power  pos- 
-(■"(•d  by  them  must  be  exercised  for  the 
benefil  of  all  alike. —  Rouse  v.  Merchants'  Nat. 
Bank,  40  Oh.  St.  493,  502  (1889).  See  Lar- 
will v.  Burke,  19  O.  C.  C.  450  (1900):  s.  c, 
19  O  C.  C.  513.  See  Arbuckle  v.  Woolson 
Spice  Co.,  21  O.  C.  C.  348  (1901). 

Duty  of  directors  of  insolvent  corpora- 
tion. 
See  Cheney  v.  Maumee  Cycle  Co.,  20  O.  C. 

C.  19  (1900). 

Liability    of    directors    for    conducting 
unauthorized   business. 

The  directors  of  a  company  are  personally 
liable  on  contracts  entered  into  by  them  in 
conduct  in;'  a  business  wholly  foreign  to  the 
objects  and  purposes  of  the  company,  al- 
though  -uch  contract  was  entered  into  in  an 
associate  name,  which  could  properly  be  used 
in  corporate  as  well  as  private  business. — 
Ridenour  v.  Mayo.  40  Oh.  St.  0  (1883).  See 
Mfgs.,  etc..  As-'n  v.  Lynchburg  Drug  Mills,  8 
0.  C.  C.  112  (1893);  s.  c,  4  C.  D.  350.  See 
notes  to  §  3239. 

A  corporation  may  follow  its  property. 

A  corporation  may  follow  its  property 
where  it  ha-  been  fraudulently  disposed  of  by 
the    directors,  into    the    hands    of    purchasers 


with  notice,  and  assert  a  lien  upon  it. — 
Goodin  v.  Cincinnati,  etc..  Canal  Co.,  18  Oh. 
St.  169  (1868).  See  Greenville  Gas  Co.  v.  Reis, 
54  Oh.  St.  549  (1S96);  Columbus,  etc.,  Ry. 
Co.  v.  Burke,  19  W.  L.  B.  27   (1887). 

When   directors  liable  to    stockholders. 

If  a  stockholder  pledge  his  stock  as  col- 
lateral with  directors  of  the  corporation,  and 
the  latter  enter  into  a  conspiracy  to  depreci- 
ate the  price  of  the  stock  by  using  their  pow- 
ers as  directors  for  the  purpose  of  buying  it 
in  for  less  than  its  value,  there  is  a  wrong 
not  against  the  corporation  only,  but  against 
the  pledgor,  for  which  there  is  a  direct  lia- 
bility  to  him.— Ritchie  v.  McMullen,  79  Fed. 
522  '(1897)  :  s.  c,  10  O.  F.  D.  699. 

Action    by   pledgee    against    directors. 

A  pledgee  of  shares  of  stock  in  a  coloration 
has,  merely  by  virtue  of  the  pledge,  no  right 
of  action  against  the  stockholders  of  a  cor- 
poration to  recover  damages  for  the  negligence 
and  mismanagement  of  the  directors  whereby 
the  estates  of  the  company  were  lost  and  the 
shares  in  the  same  rendered  valueless. — 
Barnes  v.  Swift,  26  W.  L.  B.  110   (1891). 

Liability  for  irregularities   of  action. 

Where  acts  of  directors  have  been  injurious 
to  no  one,  either  stockholders  or  corporation, 
although  irregular  and  informal,  no  action 
will  lie.— See  "Larwill  v.  Burke,  19  0.  C.  C. 
513  (1900). 

Liability    of    directors    for    mismanage- 
ment. 

Directors  of  a  corporation  are  personally 
liable  if  they  suffer  corporate  funds  or  prop- 
erty to  be  wasted  or  lost  by  gross  negligence 
and  inattention  to  the  duties  of  their  trust; 
and  an  action  may  be  maintained  against 
them  for  the  amount  of  such  losses. —  See 
Kalb  v.  American  Nat.  Bank,  21  O.  C.  C.  1 
(1900);  Meisse  v.  Loren,  5  N.  P.  307  (1898); 
s.  c,  8  Dec.  448. 

Liability   of   directors   of  railroad   com- 
panies. 

See  §  3314. 

Stockholder's  suit,  limitation  of  action. 

As  to  when  statute  of  limitations  runs 
against  an  action  against  directors  for  mal- 
feasance, see  Larwill  v.  Burke,  19  O.  C.  C. 
450  (1900)  ;  s.  c,  19  O.  C.  C.  513. 

Conversion      of      corporate      property  — 
rights  of  stockholders. 

Where  a  corporation  has  disposed  of  all  its 
property  for  the  purpose  of  defrauding  a  stock- 
holder, the  latter  may  maintain  an  action  to 
annul  such  transaction,  making  the  coi-pora- 
tion,  its  directors  and  other  guilty  persons 
parties. —  See  Dye  v.  Hermesch,  32  W.  L.  B. 
120  (1894);  Shaw  v.  Ohio  Edison,  etc.,  Co., 
19  W.  L.  B.  292   (1888). 


General  Corporation  Law. 


133 


Directors  and  Trustees  —  Powers,  etc.,   §  3248. 


Action  by   stockholder. 

A  stockholder  in  a  corporation  may  main- 
tain a  bill  in  equity  against  the  corporation, 
the  directors  and  other  stockholders  upon  alle- 
gations of  fraudulent  practices  for  the  pur 
pose  of  obtaining  an  account  of  the  stock  and 
funds,  and  for  the  restoration  of  whatever 
may  have  been  fraudulently  withdrawn  from 
the  corporate  funds. —  Taylor  v.  Miami  Im- 
porting Co.,  5  Oh.  162  (1831). 

Nature   of  action. 

I  he  action  may  be  equitable  even  if  money 
damages  only  arc  sought. —  Meisse  v.  Loren, 
5  N.  P.  307  (1898)  ;  s.  c,  8  Dec.  448;  s.  c,  4 
N.  P.  100;  s.  c,  6  Dec.  258. 

Who  is  proper  plaintiff. 

The  liability  of  directors  is  to  the  corpora- 
tion or  to  the  one  representing  its  interests, 
as,  for  instance,  a  receiver,  and  it  should  in- 
stitute proceedings  to  compel  the  directors  to 
account;  but  if  the  corporation  or  the  receiver 
refuses  to  sue,  or  if  the  board  guilty  of  the 
misdeeds  complained  of  is  still  controlling  the 
corporation,  a  stockholder  may  sue  on  behalf 
of  the  corporation  making  it  and  other  proper 
parties  defendants —  See  Meisse  v.  Loren,  5 
N.  P.  307  (1898);  s.  c,  8  Dec.  448;  Robinson 
v.  Cleve.,  etc.,  Ry.  Co.,  5  N.  P.  293  (1898); 
s.  c,  7  Dec.  312;  Larwill  v.  Burke,  19  O.  C.  C. 
450  (1900)  ;  Egbert  v.  Third,  etc.,  Bldg.  Ass'n, 
9  Dec.  646  (1899). 

Same  snbject. 

An  action  against  directors  for  damages  to 
corporate  property  caused  by  negligence  or 
mismanagement  can  only  be  brought  by  or  on 
behalf  of  the  corporation,  and  not  by  a  stock- 
holder or  one  indirectly  injured. — -  Zinn  v. 
Baxter,  17  O.  C.  C.  283  (1898)  ;  s.  c,  9  C.  D. 
731;  s.  c.   (Sup.  Ct.),  46  W.  L.  B.  271  (1901). 

Parties   plaintiff. 

A  creditor  and  a  stockholder  of  a  corpora- 
tion may  join  as  plaintiffs  and  bring  an  action 
for  the  benefit  of  all  the  corporate  creditors 
and  stockholders  where  they  are  very  numer- 
ous, and  it  is  impracticable  to  bring  them  all 
before  the  court,  but  other  creditors  may  come 
in  and  be  made  parties  defendant. —  Meisse  v. 
Loren,  5  N.  P.  307  (1898)  ;  s.  c,  8  Dec,  448. 

Action  for  negligence  follows  stock. 

Any  rights  a  stockholder  may  have  on  ac- 
count of  the  negligence  or  mismanagement  of 
directors  follows  his  stock  on  its  sale  by  him. 
—  Zinn  v.  Baxter,  17  O.  C.  C.  283  (1898); 
s.  c,  9  C.  D.  731;  s.  c.  (Sup.  Ct.),  46  W.  L.  B. 
271   (1901). 

Rights   of    equitable    stockholders. 

An  equitable  owner  of  stock,  being  the  real 
party  in  interest,  may  bring  in  his  own  name 
an  action  against  directors. —  Larwill  v. 
Burke,  19  O.  C.  C.  450   (1900). 


Parties   to    stockholder's   bill. 

The  corporation,  the  directors  and  othei 
stockholders  are  proper  parties  to  a  stock- 
holders' bill  against  directors  for  an  account- 
ing. Taylor  v.  Miami  Exporting  Co  5  I  >h. 
162  (1831).  S,,.  Dodge  v.  Woolsey,  1-  Bow. 
(U.   S.)    331    (18! 

Stockholder's   bill,    motive. 

It  is  no  defense  to  a  stockholder's  bill 
against  directors  that  the  plaintiff  ha-  some 
interests  other  than  in  bis  stock  whicb  will  be 
benefited  by  the  relict  sought.  Henry  v. 
Pittsburg,  etc.,  Ry.  Co.,  2  X.  P.  118  (1 
s.  c,  5  Dec.  II.  Sec  Kulm  v.  Woolson  Spice 
Co..  13  0.  C.  C.  547  (1897)  ;  s.  c,  7  C.  D.  289; 
Cincinnati  Volksblatl  I  o.  v.  Hoffmeister,  43 
W.  L.  B.  142  (1900);  Stewart  v.  Little  Miami 
R.  R.  Co.,  14  Oh.  :;.-,:;.  ::;,s  (1846);  Sommers 
v.  Cincinnati,  8  A.  L.  Rec.  612,  C24  (1880 

Same  subject  —  puppet  of  competitor. 

Prima  facie  every  stockholder  may  come 
into  court  as  representing  all  the  shareholders 
to  prevent  an  illegal  act  of  the  directors,  and 
the  court  does  not  require  any  evidence  that 
the  remaining  shareholders  have  concurred  in 
the  filing  of  the  bill,  because  if  tic-  act  be 
illegal  it  is  presumed  to  be  for  the  benefit  of 
all  that  it  should  be  stopped:  but  not  so  when 
it  appears  that  the  plaintiff  is  not  moving  in 
his  own  behalf,  but  is  -ct  in  motion  by  bome 
one  who  undertakes  to  pay  the  costs  and  to 
indemnify  him  against  all  risk;  then  the  ac- 
tion can  no  longer  lie  considered  as  under  tic 
direction  of  the  plaintiff  bona  tide,  but  in  the, 
hands  of  another,  for  whom  the  plaintiff  i-  a 
puppet,  and  the  bill  will  be  dismissed. — - 
Gallagher  v.  Johnson,  31  W.  L.  15.  24  (1894); 
Kuhn  v.  Woolson  Spice  (  o.,  13  I  >.  I  .  C.  -~>47 
(1897);  s.  c,  7  C.  D.  289.  See  Buning  v. 
Cincinnati,  etc..  R.  R.  <  ,,..  1  O.  C.  C.  323,  325 
(1896);   s.  c,  1   C.  D.   17S. 

Same   subject  —  estoppel. 

A  decree  in  a  suit  brought  by  the  trustee 
of  a  mortgage  for  the  foreclosure  of  the  same 
does  not  estop  the  same  person  suing  a-  a 
stockholder. —  Henrv  v.  Pittsburg,  etc.  Ry. 
Co.,  2  N.  P.  118  (1S95)  ;  s.  c,  5  Dec.  41. 

'When   stockholders  not  in  pari    delicto 
from  illegal  contract. 

See  National  Salt  Co.  v.  I  nilcd  Salt  Co., 
12  Dec.  386    (1902). 

Acquiescence    of   stockholders. 

Where  the  directors  of  a  company  add  a 
new  feature  to  the  corporate  business,  acting 
in  good  faith,  and  the  stockholder  acquis 
in  such  action,  they  are  not  jiiable  for  losses 
sustained  by  the  corporation. —  Bond  v.  Coe, 
12  O.  C.  C.  281  (1893);  s.  c.  4  C.  D.  10.  See 
Larwill  v.  Burke,  19  0.  C.  C.  513  (1900); 
Foster  v.  Railway  Co.,  36  Fed.  627   (1888). 


134 


Private  Corporations  in  Ohio. 


Directors  and  Trustees  —  Powers,  etc.,   §  3248. 


Nonconcurrence  of  stockholders. 

Where  the  complaining  stockholder  repre- 
sents a  very  small  fraction  of  the  stock  of  the 
company,  H  seems  thai  the  court  will  take 
into  consideration  the  attitude  of  the  holders 
of  the  balance  of  the  stock.— Cincinnati,  etc., 
I;  i;  Co.  v.  Duckworth,  2  O.  C.  C.  518,  523 
1887)  •  s  c  1  C.  D.  618:  Robinson  v.  Cleve- 
land, etc.,  I'.v.  Co.,  5  N.  P.  293,  305  (1898); 
8.    (...   7    Dec.   312. 

When   injunction   granted. 

The  fact  thai  illegal  or  fraudulent  acts 
have  been  committed  by  the  board  of  directors 
of  a  corporation  will  not  entitle  a  shareholder 
or  creditor  to  an  injunction  where  there  is  no 
threatened  repetition  of  such  acts. —  North 
Fairninuiit.  etc.,  Co.  v.  Rehn,  6  N.  P.  185 
(1899)  ;    s.  c.,  8  Dec.   594. 

When  injunction  not  dissolved. 

A  temporary  injunction  against  directors 
will  not  be  dissolved  where  part  of  the  officers 
are  insolvent,  the  solvency  of  the  company 
doubtful,  and  it  is  uncertain  that  they  will 
use  the  corporate  funds  properly. —  Upson  v. 
Rock,  etc.,  Quarry  Co.,  2  C.  L.  Rep.  355 
(1879). 

What     breaches     of    trust    will    be    set 
aside. 

A  director  is  a  trustee  for  the  company, 
and  whenever  he  acts  against  its  interests,  no 
matter  how  much  he  thereby  benefits  foreign 
interests  of  the  individual  stockholders,  or 
how  many  individual  stockholders  act  with 
him,  he  is  guilty  of  a  breach  of  trust,  and  a 
court,  of  equity  will  set  his  acts  aside  at  the 
instance  of  creditors  or  stockholders  who  are 
damnified  thereby.  Any  act  of  the  directory 
by  which  they  intentionally  diminish  the  value 
of  the  stock  or  property  of  the  company  is  a 
breach  of  trust. —  G-oodin  v.  Cincinnati,  etc., 
(  anal  (  o.,   18  Oh.  St.   169,   183    (1868). 

Same  subject  —  illustration. 

Where  a  railroad  company  purchased  a  ma- 
jority of  the  shares  of  stock  in  a  canal  com- 
pany, and  elected  for  the  latter  a  board  of 
director-  who  were  in  its  interests,  and  then 
appropriated  the  lands  and  canal  of  the  canal 
company  as  a  right  of  way,  paying  therefor  a 
price  agreed  upon  by  the  directors  of  the  two 
companies,  but  which  was  far  below  the 
actual  value,  it  was  held  that  the  stockhold- 
i  the  canal  company  could  compel  the 
railroad  company  to  account  for  the  actual 
value  of  the  property.—  Goodin  v.  Cincinnati, 
etc.,  <  anal  Co.,  is  Oh.  St.  169  (1868). 

Defenses   of  directors. 

i     n  i  defense  on  demurrer  that  some  of 
the  defendants  have    been   directors  longer  than 

otheis.     The  court,  will   fix  the  liabilities  ac- 
Lng     to     the     circumstances.— Meisse     v. 
Loren.  5  \".  P.  307  (1898);  s.  c,  8  Dec.  448. 


Settlement,  when  no   defense. 

When  an  action  is  brought  by  stockholders 
in  a  company  against  such  .company,  and  its 
assignee  for  the  benefit  of  creditors,  to  set 
aside  a  deed  of  assignment  for  fraud  or  want 
of  power  to  make  the  deed,  a  settlement  be- 
tween the  company  and  its  assignee,  satisfac- 
tory to  both,  will  not  be  a  settlement  as 
against  the  complaining  stockholders,  unless 
they  consent  to  the  same. —  Standard,  etc., 
Co.'  v.  Jones,  45  W.  L.  B.  197  (1901)  ;  s.  c,  64 
Oh.  St.  147. 

Numbering   causes  of  action. 

An  action  by  a  depositor  and  stockholder  of 
a  bank  on  behalf  of  stockholders  and  creditors 
states  equitable  causes  of  action,  and  need  not 
be  separatelv  stated  and  numbered. —  Meisse 
v.  Loren,  4  N.  P.  100  (1897)  ;  s.  c,  6  Dec.  258. 

Cross-petitioners. 

A  creditor  or  stockholder  may  come  in  and 
be  made  a  party  defendant  and  join  in  the 
prayer  of  the  petition.  He  should  allege  his 
interest  in  the  matter  as  a  stockholder  or 
creditor,  and  he  may  adopt  the  allegations  of 
the  petition  without  restating  the  facts,  or  he 
may  adopt  a  part  and  restate  a  part, —  Meisse 
v.  Loren,  5  N.  P.  307   (1898)  ;  s.  c,  8  Dec.  448. 

Action  by  general  creditor. 

Quaere:  Can  a  general  creditor  proceed  in 
equity  against  the  directors  of  a  corporation 
before  obtaining  judgment  and  exhausting  his 
remedies  at  law? — Meisse  v.  Loren,  4  N.  P. 
100  (1897);  s.  c,  6  Dec.  258;  s.  e,  5  N.  P. 
307  (1898);  s.  c,  8  Dec.  448;  North  Fair- 
mount,  etc.,  Co.  v.  Rehn,  6  N.  P.  185  (1899); 
s.  c,   8  Dec.  594. 

Trust  relation  of  directors  to  creditors. 

See  notes  to   §  3266. 

Action   by   stranger. 

One  who  has  sold  his  stock  or  lost  the  same 
through  legal  proceedings  cannot  maintain  an 
action  against  the  directors  of  a  corporation 
for  damages  resulting  from  the  impairment  of 
the  value  of  his  stock  caused  by  their  negli- 
gence.— Zinn  v.  Baxter,  17  O.  C.  C.  283 
(1898);  s.  c,  9  C.  D.  731. 

Stockholders'     bill     to     enforce     active 
duties   of  directors. 

A  stockholder  cannot  invoke  the  aid  of  a 
court  of  equity  to  enforce  an  active  duty 
within  the  powers  of  the  directors,  though  he 
may  restrain  ultra  vires  or  fraudulent  acts. — 
Port  Clinton  R.  R.  Co.  v.  Cleveland,  etc.,  R.  R. 
Co.,  13  Oh.  St.  544,  561  (1862).  See  Straman 
v.  North  Baltimore  Water  Works  Co.,  8  O. 
C.  C.  89,  101    (1893);    s.   c,  4  C.  D.  339. 

Injunction    against   cutting    price. 

Where  two  companies  are  competing  in  the 
same  line  of  business,  and  one  company  lowers 


General  Corporation  Law. 


135 


Regulations,  etc.,   S  3249. 


the  price  of  its  goods  below  wlint  is  considered 
the  cost  price  thereof,  the  other  company  \\.<\ 
ing  acquired  some  of  the  shares  of  stuck  of 
such  competing  company,  cannol  go  into  a 
court  of  equity  and  ask  for  an  injunction  to 
restrain  the  managers  and  directors  of  such 
competing  company  from   selling   their  goods 

at   such    a    low    price    (in    the   ground    thai     the 

company  is  being  operated  in  the  interest  * > f  a 
third  company.  -Kuhn  v.  Woolson  Spice  <  (o., 
L3  <>.  C  C.  547   (1807);  s.  c,  7  C.  I).  289. 

AVhen    equity    will    not    interfere    with 
directors. 

A  court  of  equity  will  not,  on  the  applica 
tion  of  a  stockholder,  interfere  with  the  board 
of  directors  in  its  management  and  control  of 
a  corporation  when  acting  within  the  scope 
of  its  authority  and  in  the  absence  of  fraud 
or  breach  of  trust. —  Sims  v.  Street  R.  R.  Co., 
37  Oil.  St.  550  (1882):  Cincinnati,  etc..  R.  R. 
Co.  v.  Duckworth,  2  O.  C.  C.  518  (1887)  ;  s.  c, 
1  C.  D.  G18;  Baltimore  v.  Hillsborough,  etc., 
R.  R.  Co.,  10  W.  L.  B.  337   (1853). 

Same  subject. 

A  court  of  equity  will  not  interfere  with 
the  internal  management  of  a  corporation  un- 
less it  becomes  necessary  to  keep  it  within  the 
scope  of  its  powers,  or  to  call  to  account  some 
officer  or  agent  for  breach  of  trust. —  Cronin 
v.  Potter's  Co-op.  Co.,  29  W.  L.  B.  52,  58 
(1892). 

Stockholders'    application   for   receiver. 

A  receiver  will  not  be  appointed  on  a  mere 
showing  that  there  is  a  difference  of  opinion 
as  to  the  manner  of  conducting  the  affairs  of 
the  company. —  Straman  v.  North  Baltimore 
Water  Works  Co.,  8  0.  C.  C.  89  (1893);  s.  c, 
4  C.  D.  339. 

Same  subject. 

A  receiver  will  not  be  appointed  on  a  stock- 
holder's application,  founded  on  the  fraudu- 
lent acts  of  directors,  unless  an  injunction 
will  not  afford  full  relief  and  protection. — 
Behrens  v.  Equality  Bldg.  Ass'n,  2  N.  P.  259 
(1S95);  s.  c,  3  Dec.  275;  Cincinnati,  etc.,  R. 
R.  Co.  v.  Duckworth,  2  O.  C.  C.  518  (1887); 
s.  c,  1  C.  D.  61S;  Robinson  v.  Cleveland,  etc. 
Ry.  Co.,  5  N.  P.  293  (1898) ;  s.  c,  7  Dec.  312; 


North  Fairmount,  etc..  Co.  r.  l.vlm.  •;  N.  1'. 
is:.,   mi    i  L899)  ;  s.  <■..  s  Dec.  ..mi. 

Appointment  of  receiver  on  application 
of  directors. 

A  court  has  no  power  on  the  application  of 
the  directors  of  a  eompanj  :>-  such,  without 
any  Bhowing  of  individual  rights  in  the  prop- 
erty   of    the   company    to   appoint    .i    receiver 

9  it  I i    not  i'-c    io    stockholder  .      Schone    v. 

Consolidated,  etc.,  S;>\im_'-  Co.,  I  \.  P.  -jit; 
(1897)  ;  s.  c.  (i  Dec.  2  id. 

"When  receiver  will  be  appointed. 

A  couit  of  equity  has  authority,  ;it  tin-  suit 
of  ;i  stockholder,  to  enjoin  unlawful  conduct. 
on  the  part  of  the  directors:  and  if  it  be 
made  dearly  to  appear  to  i  lie  court  that  tie- 
appoint  mint  ,,f  ,-i  receive]-  ia  really  oe<  i 
to  effect  the  purpose  of  :i  suit,  ;i-.  for  instance, 
if  it  clearly  appear  that,  unless  the  properly 
is  placed  in  the  hands  of  an  office]  ol  the 
court,  if.  will  be  fraudulently  and  instantly 
disposed   of  by   the  directors,  a    receiver  may 

be  appointed:   but  in  the  absence  of  -ml,  , 

sity,  and  where  full  relief  may  he  afforded  by 

injunction,  the  appointment  of  a  receiver  i- 
an  abuse  of  discretion. —  Cincinnati,  etc..  K. 
R.  Co.  v.  Duckworth.  2  0.  ( '.  C.  518  (1887); 
s.  c,  1  C.  D.  G18. 

Suit  in  equity  —  multiplicity  of  suits. 

Chancery  will  not,  at.  the  suit  of  ;i  stock- 
holder, take  jurisdiction  of  distinct  and  sep- 
arate matters  and  unite  with  them  the  settle- 
ment of  the  transactions  of  a  corporation  in 
one  suit,  because  such  single  litigation  may 
prevent  a  sacrifice  of  property,  and  be  mosl 
beneficial  to  stockholders  and  creditors. — 
Merrill  v.  Lake,  10  Oh.  373    (1847). 

Suit  —  when    one    person    owns    all    but 
one  share. 

When  a  person  owning  all  but  one  share  in 
a  corporation  coin  cits  the  property  to  his 
own  use.  the  stockholder  owning  the  one  share 
may  bring  suit  against  him  and  not  against 
the  company. —  Dve  v.  Hermesch,  32  \Y.  I..  I'.. 
120   (1894). 

Appointment     of     nonresidents     as     re- 
ceivers. 

See   §    3415. 


§  3249.  CORPORATION  MAY  ADOPT  REGULATIONS.—  Every  corporation 
may  adopt  a  code  of  regulations  for  its  government,  not  inconsistent  with  the  consti- 
tution and  laws  of  the  state. 


Term  of  office. 

Neither  the  incorporators  nor  the  trustees 
first  elected  are  authorized  to  adopt  a  by-law 
or  regulation  providing  that  they  shall  hold 
office  during  life,  and  in  case  of  vacancy  to  fill 
the  same  by  appointment. —  State  v.  Standard 
Life  Ass'n,'3S  Oh.  St.  281   (1882). 


Transfer  of  stock. 

A  corporation  may  regulate  the  mode  and 
manner  of  transferring  the  legal  title  of  stock 
issued  by  it.— See  Nat.  Bank  v.  Lake  Mere, 
etc.,  Ry.  Co.,  21  Oh.  St.  221.  232  (1871). 

Same  subject. 

A  by-law  which  provides  that  a  stockholder 
desiring  to  sell  his  stock  must  sell  to  the  com- 


136 


Private  Corporations  in  Ohio. 


By-laws,  Regulations,  etc.,   §§   3250,  3251. 


panv     is    void    as    violating    public    policy. 
Fassler  v.  Whiteley,  17  W.  L.  B.   141    (1887 

Regulations   must  be  reasonable. 

See  Hagerman  v.  Ohio  Bldg.,  etc.,  Ass'n,  25 
Oh  St  186,  202  (1874);  Forest  City,  etc., 
Ass'n   v.  Gallagher,  25  Oh.  St.  208. 

By-laws   violating  the   constitution   are 
void. 

State  ex  rel.  v.  Cincinnati.  23  Oh.  St.  44o 
(1872). 

Regulations    concerning   treasurer. 

The  power  to  appoint  a  treasurer  is  not  de- 
rived  by  the  corporation  from  its  by-laws,  but 
its  .hatter.  The  power  and  duty  of  the  treas- 
urer is  not  derived  from  the  by-laws,  but  the 
charter.  The  corporation  would  have  no 
power  to  confer  authority  or  impose  duties 
upon  the  treasurer  as  such  not  consistent  with 
the  office  of  treasurer.— See  Portage  County 
Ins.  Co.  v.  Wetmore,  17  Oh.  330  (1848). 

Regulations    concerning    corporate    ex- 
istence. 

A  court  of  equity  will  not  decree  the  disso- 
lution of  the  company  because  of  a  by-law 
limiting  its  life,  nor  will  it  by  decree  in  per- 
sonam against  the  stockholders  enforce  a  dis- 
solution.— Cronin  v.  Potters'  Co-op.  Co.,  29  W. 
L.  B.  52  (1892). 

By-laws  adopted  unanimously. 

A  by-law  adopted  unanimously  has  no 
greater  force  than  it  would  have  if  it  had 
been  adopted  by  a  majority  and  attested  by 
the  officers  of  the  meeting  instead  of  being 
subscribed  bv  all  the  stockholders. —  Wan- 
gerien  v.  Aspell,  47  Oh.  St.  250,  260  (1890); 
Cronin  v.  Potters'  Co-op.  Co.,  29  W.  L.  B.  52, 
58    (1892). 


|  Regulations      prohibiting     recourse      to 
courts. 

A  regulation  or  by-law  which  precludes  a 
member  from  going  into  court  to  assert  a 
right,  but  requiring  him  to  submit  to  the 
tribunal  provided  for  by  the  order,  of  which 
he  is  a  member,  is  void. —  Mvers  v.  Lucas,  16 
O.  C.  C.  545    (1898);   s.  c,  8  C.  D.  431. 

By-laws  governing  expulsion. 

See  Cheney  v.  Ketcham,  5  N.  P.  139  (1897)  ; 
s.  .p.,  7  Dec.  183;  Blumenthal  v.  Cincinnati, 
etc.,  Exchange,  7  W.  L.  B.  327   (1882). 

By-law   established   by   custom. 

A  by-law  of  a  corporation  may  be  created 
and  made  binding  upon  the  members  thereof 
by  custom,  where  such  custom  is  shown  to  be 
a  uniform  rule  of  action  and  acquiesced  in  by 
all  the  members. —  Stafford  v.  Produce  Ex- 
change Banking  Co.,  16  O.  C.  C.  50  (1898); 
s.  c,  8  C.  D.  483. 

Estoppel  to  deny  by-laws. 

A  person  acquiring  membership  in  a  corpo- 
ration by  virtue  of  one  of  the  provisions  of 
its  by-laws,  is  estopped  to  deny  his  obligation 
to  be  bound  by  rules  and  regulations  which 
are  a  part  of  the  same  by-laws  governing  his 
conduct  as  such  member,  on  the  ground  that 
such  by-laws  had  not  been  legally  adopted. — 
Cheney  v.  Ketcham,  5  N.  P.  139  (1897);  s.  c, 
7  Dec.  183;  State  ex  rel.  v.  Cincinnati,  etc.r 
Exchange,  4  N.  P.  244  (1897);  s.  c,  6  Dec. 
363. 

This  section  is  directory. 

A  corporation  is  not  obliged  to  pass  regula- 
tions, this  section  being  directory. —  See  Pro- 
prietors, etc.,  Bank  v.  Wade,  7  W.  L.  J.  95 
(1849). 


§  3250.  TRUSTEES  OR  DIRECTORS  MAY  ADOPT  BY-LAWS.— The  trustees 
or  directors  of  a  corporation  may  adopt  a  code  of  by-laws  for  their  government,  not 
inconsistent  with  the  regulations  of  the  corporation,  or  the  constitution  and  laws  of 
the  state,  and  may  change  the  same  at  pleasure. 


Power  of  directors. 

When-  the  directors  of  a  hospital  are  em- 
powered to  make  by-laws  and  regulations,  a 
city  council  cannot  be  authorized  by  special 
ad  to  approve  or  reject  such  by-laws. —  State 
ex  rel.  v.  I  Lncinnati,  23  Oh.  St.  445  (1872). 

Unreasonable  by-law. 

The  directors  cannot  pass  any  unreasonable 
l,\  laws,   as,   for   instance,  one  prohibiting  the 


transfer  of  stock  paid  for  by  the  secured  note 
of  the  subscriber. —  Andes  Ins.  Co.  V.  Waters, 
1  W.  L.  B.  172    (1876). 

Construction    of    by-laws     and    regula- 
tions. 

By-laws  and  regulations  are  subject  to  the 
same  rules  of  construction  as  statutes. — 
Burke   v.  Home,  etc.,  Ass'n,   7   W.   L.   B.    114 

(1882). 


§  3251.  HOW  REGULATIONS  MAY  BE  ADOPTED.— Regulations  may  b© 
adopted  or  changed  by  the  assent  thereto,  in  writing,  of  two-thirds  of  the  stockholders, 
or,  if  there  is  no  capital  stock,  of  the  members,  or  by  a  majority  of  the  stockholders 
or  members,  at  a  meeting  held  for  that  purpose,  notice  of  which  has  been  given  by  the 
acting  president  personally  to  each  member  or  stockholder,  or  by  publication  in  some 


(  rENERAL    (  lORPORATION    LAW. 


137 


Regulations;  Stock  Subscriptions,  SS  3252,  3253. 


newspaper  of  general  circulation  in  the  county  in  which  the  corporation  is  located, 
or  in  the  counties  through  which  its  improvement  does  or  will  pass. 


Amendment   of  regulations. 

The  fact,  that  the  constitution  and  by-laws 
of  a  corporation  are  signed  by  the  members 
does  no1  make  them  any  more  binding,  foi 
whether  signed  or  not,  they  are  the  law  of  the 
corporation,  binding  upon  all  of  its  memlier-. 
until  altered  or  amended,  and  the  circum- 
stance thai,  they  were  signed  doe-  iml  take 
away  the  right  and  power  of  amendment 
which  is  incidental  to  all  corporations. 
Wangerien  v.  Aspell,  47  oh.  St.  250,  260 
(1890);  Cronin  v.  Potters'  Co-op.  Co.,  29  W. 
L.  B.  52   (1892). 

Same  subject. 

The   by-laws   of  a  corporation  may  provide 
that   they   shall    not   be   altered    or   amended 


without   tin'  consent  of  all,  m   -nine  flxed  pro- 
portion of  i  he  members,  in   which  case  to  be 
binding    an    amendmenl    or    alteration    must 
secure  t  be  assent  of  i  he  si  ipulated  numbei 
See   Wangerien   v.  Aspell,    17  Oh,  St.  250 
i  L890). 

Same  subject. 

Where  the  by-laws  contain  no  provision  for 
amendmenl  they  are  amendable  under  this 
section.  -Wangerien  v.  Aspell,  17  Oh.  St. 
250,  260  (1890)  ;  cited  in  Morris  v.  Griffith,  34 
\V.  L.  B.   l'.U    (1895).     See  note,  to  i  3249. 

Proof  of  by-laws. 

See    llagenuan    v.    Ohio,    etc.,    A-.'n,    _'."i    Oh. 

St.    1st;    (1874). 


§  3252.  WHAT  MAY  BE  PROVIDED  FOR  BY  REGULATIONS.— A  corpora- 
tion, by  its  regulations,  when  no  other  provision  is  specially  made  in  this  title,  may 
provide  for  — ■ 

1.  The  time,  place,  and  manner  of  calling  and  conducting  its  meetings. 

2.  The  number  of  stockholders  or  members  constituting  a  quorum. 

3.  The  time  of  the  annual  election  for  trustees  or  directors,  and  the  mode  and 
manner  of  giving  notice  thereof. 

4.  The  duties  and  compensation  of  officers. 

5.  The  manner  of  election,  or  appointment,  and  the  tenure  of  office,  of  all  officers 
other  than  the  trustees  or  directors. 

6.  The  qualification  of  members,  when  the  corporation  is  not  for  profit. 


Change  of  place  of  business. 

This  section  does  not  seem  to  authorize  a 
change  of  the  principal  place  of  business  of  a 
corporation,  but  if  it  does,  it  can  have  no  ap- 
plication to  manufacturing  companies  for  they 
are  provided  for  by  §  3855. —  Mercantile  Trust 
Co.  v.  ^Etna  Iron  Works,  4  0.  C.  C.  579,  588 
(1890);  s.  c,  2  C.  D.  718. 

Treasurer  —  when    suit  may  be   brought 
for  default. 

Suit  may  be  brought  against  the  treasurer 
of  a  company  as  soon  as  he  has  made  default 
and  company  need  not  wait  till  his  successor 
is  elected. —  Marlborough  Ass'n  v.  Peters,  00 
N.  E.  396   (Mass.   1901). 


Treasurer. 

See  as  to  regulations  of  duties  ,,f  treasurer. 
Portage    Co.    Ins.    Co.    v.    Wetmore,    ante.    § 
3249;     as     to     regulation-     as     to     tenun 
office  and  election,  see  Lutterbv  v.  Ilerancourt 
P.rewing  Co.,  12  Dec.  07,  70   (1901). 

Executive   committee  —  powers. 

Under  an  appointment,  giving  the  executive 
committee  of  a,  corporation  power  to  dis- 
charge the  duties  of  the  board  of  directors, 
hut  not  to  incur  debts  except  for  current  ex- 
penses unless  specially  authorized,  their  au- 
thority to  mortgage  the  realty  of  the  company 
to  pay  current  debts  is  denied. —  Ohio  Valley 
Xat.  Bank  v.  Walton,  etc.  [ron  Co.,  30  W.  L. 
B.  3S2  (1893).  See  Morris  v.  Griffith,  34  W. 
L.  B.  191   (1895). 


§  3253.  HOW  PAYMENT  OF  STOCK  SUBSCRIPTIONS  ENFORCED.— If  an. 
installment  of  stock  remain  unpaid  for  sixty  days,  after  the  time  it  is  required  to  be 
paid,  whether  such  stock  is  held  by  an  assignee,  transferee,  or  the  original  subscriber, 
the  same  may  be  collected  by  action,  or  the  directors  may  sell  the  stock  so  unpaid  at 
public  auction,  for  the  installment  then  due  thereon,  first  giving  thirty  days'  public 
notice  of  the  time  and  place  of  sale,  in  some  newspaper  in  general  circulation  in  the 
county  where  the  delinquent  stockholder  resided  at  the  time  of  making  the  subscrip- 
tion, or  of  becoming  such  assignee  or  transferee,  or  of  his  actual  residence  at  the  time 
of  the  sale;  or,  if  such  stockholder  resides  out  of  the  state,  such  publication  shall  be 
made  in  the  county  where  the  principal  office  of  the  company  is  located;  if  any  resi- 


138 


Private  Corporations  in  Ohio. 


Stock  Subscriptions  —  Enforcement  of,  etc.,  §  3253. 


due  of  money  remain  after  paying  the  amount  due  on  the  stock,  the  same  shall,  on 
demand  be  paid  to  the  owner;  and  if  the  whole  of  the  installment  be  not  paid  by  the 
sale  the  remainder  shall  be  recoverable  by  an  action  against  the  subscriber,  assignee, 
or  transferee.     (May  1,  1852,  50  v.  274,  §  7;  March  14,  1853,  51  v.  484,  §  1.) 


Mutuality  of  subscription. 

A    subscription    made    on    the    opening    of 

books   by   the  corporation   is   enforceable  not- 

, withstanding  the  company  lias  not  been  fully 

organized   by   election   of  directors. —  Milford. 

Turnpike  Co.  v.  Brush,  10  Oh.  Ill   (1840). 

Abandonment    of   subscription. 

If  a  company  does  any  act  which  amounts 
to  an  admission  of  the  existence  of  a  contract, 
it  cannoi  claim  that  the  subscription  has  been 
abandoned.—  [ron  R.  R.  Co.  v.  Fink,  41  Oh. 
St.  321.  331    (1884). 

"Waiver  of  company  rights. 

If  a  company  elects  to  waive  its  rights 
under  this  section,  the  subscriber  may  pay  his 
subscription  and  obtain  all  the  right  of  a 
stockholder.— Iron  R.  R.  Co.  v.  Fink,  41  Oh. 
St.  321,  322   (1884). 

Liability    of    person    signing    another's 

name. 

Where  a  person  signs  a  subscription  to 
stock  in  the  name  of  another  person  without 
authority,  his  own  name  nowhere  appearing 
in  the  paper,  he  cannot  be  held  liable. —  Cin- 
cinnati Hotel   Co.   v.  Marsh,  9   W.   L.   B.   176 

(18,:,3). 

Subscription  payable   in  land. 

On  a  subscription  payable  in  land,  the  re- 
covery  i-  not  the  nominal  value  of  the  stock, 
bu1  i-  the  land  and  damages  for  the  delay,  or 
if  there  be  no  land,  then  proper  compensation 
in  damages  for  the  loss  of  the  land. —  Dayton, 
k.  R.  Co.  v.  Hatch,  1  Dis.  84  (1855). 

Payment  by  note. 

A  stockholder  who  has  paid  his  subscription 
by  hi-  ii' it''  for  the  amount  due.  has  the  re- 
lation  of  borrower  from  the  company,  and  has 
no  other  or  greater  rights  than  those  who  paid 
for  their  stock  and  borrowed  nothing. — 
Union,  etc.,   Ins.  Co.  v.  Curtis,  35  Oh.  St.  343 

L880)  ;  Union,  etc.,  Ins.  Co.  v.  Latham,  1  W. 
I..   B.    127    (1876). 

Forfeiture  of  stock. 

A  company  cannot,  without  following  the 
Btatute,  I'M  nit  the  stock  of  a  subscriber  and 
appropriate  the  amount  paid  to  the  use  of  the 
company.-  Iron  Et.  i!.  Co.  v.  Fink,  41  Oh.  St. 
321,  329  (1884). 

Injunction  against  forfeiture. 

A  forfeiture  of  stock  by  order  of  the  direct- 
althougb  doubtless  good  between  the 
stockholders  and  the  corporation,  may  lie 
fraudulent  a-  t<>  outside  parties,  and  there- 
fore may  be  enjoined  at  their  instance. — 
Upson  v.'  Rocky,  etc.,  Quarry  Co.,  2  C.  L.  Rep. 
355   (1879). 


"When  right   of   action   accrues. 

A    right    of    action    on    a    subscription    to 
capital   stock  does  not  accrue   until  a  call  is    . 
made  for  payment. —  Gibson  v.  Columbia,  etc., 
Bridge  Co.,  18  Oh.  St.  396  (1868);  Iron  R.  R.-, 
Co.  v.  Fink.  41  Oh.  St.  329   (1884)  ;  Warner  v. 
Callender,  20  Oh.  St.  190   (1870). 

Statute   of  limitations. 

An  action  to  recover  on  a  stock  subscrip- 
tion being  founded  on  an  instrument  in  writ- 
ing, the  limitation  is  fifteen  years. —  Gibson  v. 
Columbia,  etc..  Bridge  Co.,  18  Oh.  St.  396 
(1808);  Iron  R.  R.  Co.  v.  Fink,  41  Oh.  St. 
321,  329  (1884);  Warner  v.  Callender,  20  Oh. 
St.   190    (1870). 

Same    subject  —  demand   notes. 

Where  the  subscribers  to  the  stock  of  a 
company  give  notes  payable  on  demand  for 
the  amount  of  their  stock,  such  notes  must  be 
construed  in  connection  with  the  nature  of  the 
corporate  business,  and  in  view  of  the  object 
intended  by  the  parties.  Therefore  it  will  be 
held  that  the  notes  were  intended  to  be  pay- 
able on  the  call  of  the  directors,  and  hence 
the  statute  of  limitations  would  be  no  more 
available  as  a  defense  in  an  action  on  the 
notes  than  if  the  action  were  on  the  subscrip- 
tions.—Kilbreath  v.  Gaylord,  34  Oh.  St.  305 
(1877). 

Pleading  —  calls. 

In  an  action  to  recover  on  a  stock  subscrip- 
tion, the  facts  of  the  call  by  the  directors  and 
notice  of  the  same  should  be  pleaded  with 
convenient  certainty  of  time  and  place. —  Pa., 
etc.,  Canal  Co.  v.' Webb,  9  Oh.  136  (1839); 
Mansfield,  etc.,  R.  R.  Co.  v.  Hall,  26  Oh.  St. 
310   (1875). 

Same    subject  —  issue    of    stock. 

A  readiness  and  willingness  to  issue  and 
deliver  certificates  of  stock  should  be  alleged. 
—  James  v.  Cincinnati,  etc.,  R.  R.  Co.,  2  Dis. 

261    (1858). 

Same      subject  —  conditional      subscrip- 
tion. 

In  an  action  on  a  railroad  subscription  con- 
tract,  conditioned  to  be  paid  in  installments 
as  might  from  time  to  time  be  called  for 
by  the  directors,  provided  the  same  should 
be  expended  upon  a  certain  line  of  road  to  be 
thereafter  located  by  the  company,  the  pe- 
tition is  defective  unless  it  shows  that  the 
road  has  been  constructed  along  the  line  desig- 
nated, or  an  offer  and  readiness  to  expend 
the  money  subscribed  according  to  the  con- 
dition; that  the  company  acceded  to  the 
conditions  of  the  subscription  and  facts  show- 
in''  that  it  had  become  absolute. —  Trott  v. 
Sarchett,  10  Oh.  St.  241  (1859). 


General  Corporation  Law. 


139 


Stock  Subscriptions  —  Enforcement  of,  etc.,  §  3253. 


Effect  of  niisnomer. 

A  subscription  payable  to  the  president  and 
directors  of  a  company   is  enforceable  in   the 
name   of  the   company. —  Milford,  etc.,  Turn 
pike  Co.  v.  Brush,  LO  Oh.  Ill   (1840). 

Demand    before   suit. 
Sec   Proprietors,  etc.,  v.  Wade,  7   W.  L.  J. 

95   (1849). 

Action   by   receiver   on   dissolution. 

A  receiver  appointed  to  collect  the  assets 
of  a  company  on  dissolution,  must  commence 
actions  at  law  to  recover  on  stock  subscrip- 
tions. It  is  not  proper  practice  to  join  in  one 
suit  in  equity  all  delinquent  stockholders  as 
defendants,  those  who  reside  out  of  the 
county  where  the  suit  is  brought,  as  well  as 
those  who  reside  within  such  county,  and  is- 
sue summons  to  another  county  to  obtain 
service  upon  such  nonresidents;  and  where 
nonresidents  are  so  brought  in  and  served,  a 
motion  to  set   aside  service  will  be  sustained. 

—  Smith  v.  Johnson,  57  Oh.  St.  486  (1898). 

Defense  —  failure  to  pay  ten  per  cent. 

It  is  no  defense  that  the  defendant  stock- 
holder has  failed  to  pay  ten  per  cent,  of  his 
subscription  at  the  time  the  same  was  made. 

—  Henrv  v.  Vermilion,  etc.,  R.  R.  Co.,  17  Oh. 

1S7   (1848). 

Same  subject  —  act  of  forfeiture. 

It  is  no  defense  that  the  company  has  com- 
mitted an  act  which  would  entitle  the  state 
to  forfeit  its  charter;  as,  for  instance,  that  it 
failed  to  commence  work  within  the  time  pre- 
scribed by  its  charter. — -Milford,  etc.,  Turn- 
pike Co.  v.  Brush,  10  Oh.  Ill    (1S40). 

Same    subject  —  abandonment    of    work. 

It  is  no  defense  that  the  company  has 
failed  to  complete  the  work  contemplated 
nor  that  it  has  abandoned  a  part  of  the  same 
when  no  condition  to  that  effect  is  expressed 
in  the  subscription. —  Armstrong  v.  Karshner, 
47  Oh.  St.  276   (1890). 

Same  subject. 

A  company  will  not  be  held  to  have  aban- 
doned the  enterprise  if  it  makes  such  progress 
as  it  can  with  its  available  means. —  Gibson 
v.  Columbia,  etc.,  Bridge  Co.,  18  Oh.   St.  396 

(1SC8). 

Same    subject  —  alteration    of    subscrip- 
tion. 

In  an  action  on  a  stock  subscription  which 
after  its  execution  had  been  materially  al- 
tered without  the  knowledge  or  consent  of 
the  maker,  the  plaintiff  cannot  recover  the 
amount  due  on  the  original  subscription  with- 
out showing  that  the  alteration  was  not 
fraudulently  made.—  Berv  v.  Marietta,  etc., 
Ry.  Co.,  26  Oh.  St.  673  (1875). 


Same     subject  —  change     of     other     xub- 
scription. 

It  i-  no  defense  to  an  a  -i  ion  on  a  subscrip 
tion   that    another  subscriber   has,   by 
agreement    n  it  h  the  directors,   been   pei  mil  '■  d 
to   change    his    subset  ipl  ion    bj    r<  ducing    I  be 
number  of  shares  when  i  bat   subscript  ion 
relied   on    by   othei    subscribers,   and    the   cir- 
cumstances  attending   the   change    were    such 
as  amounted  to  fraud  upon  other  subscribers, 
and    rendered    the  change   a    nullity.     Ji 
v.  Valley,  etc.,  Ry.  I  o.,  34  Oh.  St.  601   - 

Same    subject  —  change   of   subscription. 

It  is  no  defense  that  a  secrel  agreement 
was  made  with  the  directors  of  a  company 
allowing  the  subscriber  to  reduce  the  number 
of  shares  subscribed  for,  the  subscription  be 
ing  held  out  as  valid  for  the  full  amount  to 
induce  others  to  subscribe,  such  agreement 
being  void. —  Jewetl  v.  Valley,  etc.,  Ry.  Co., 
34  Oh.  St.  601,  609  (1878).  See  Bates  \. 
Lewis,  3  Oh.  St.  45!)   (1854). 

Same     subject  —  change     of     nature     of 
stock. 

If  a  company  so  changes  the  nature  and 
character  of  its  capital  stock  as  to  make  ii 
substantially  a  new  stock  and  entirely  dif- 
ferent from  what  the  defendant  agreed  to  re- 
ceive, in  effect  destroying  the  subject-matter 
of  the  contract,  there  can  be  no  recovery. — 
James  v.  Cincinnati,  etc.,  R.  R,  Co..  2  Dis.  261 
(1858);  Covington,  etc.,  Bridge  Co.  \.  Sar- 
gent, 1  C.  S.  C.  354  (1871). 

Same  subject  —  amendments  to  charter. 

The  acceptance  of  an  amendment  to  its 
charter  by  the  company,  materially  changing 
its  business,  is  a  defense. —  Marietta,  etc.,  R. 
R.  Co.  v.  Elliott,  10  Oh.  St.  57    (1859). 

Same  subject  —  change  of  termini. 

It  is  a  defense  to  an  action  on  a  subscrip- 
tion to  the  stock  of  a  railroad  company  thai 
the  company  has  changed  its  termini. — 
Marietta,  etc.,  R.  R.  Co.  v.  Elliott,  10  Oh.  St. 
57  (1859).  Contra.  Jewetf  v.  Valley  Ry.  Co.. 
34  Oh.  St.  601    (1878). 

Cancellation   of   subscriptions. 

A  corporation  may  cancel  a  subscription  on 
the  ground  of  mistake. —  See  Bigjrio  v.  Sand- 
heger,  8  X.  P.  13,  15  (1900).  See  §  3239. 
power   to  buy  stock. 

Same   subject  —  change    of  route. 
An    immaterial    change    of   the    route    of   a 

turnpike  or  railroad  company  is  no  defei 
Milford.   etc.,  Turnpike  Co.  v.    Brush,    1,0  Oh. 
Ill   (1840).     See  Pa.,  etc.,  (anal  Co.  v.  Webb. 
9  Oh.  136   (1839);   Armstrong  v.  Karshner,  47 
Oh.  St.  276    (1890).     See  §  3272  el  seq. 

Same  subject  —  fraud. 

False  representations  as  to  the  future  inten- 
tion or  expectation  of  the  company  will  not 
defeat  a  recovery,  especially  where  there  is  no 


140 


Private  Corporations  in  Ohio. 


Stock  Subscriptions  —  Enforcement  of,  etc.,  §  3253. 


intent  to  deceive.— Armstrong  v.  Karshner, 
47  Oh.  st.  276  (1890);  Freeman  v.  Muth.  3 
W.  I-  B.  914  i 1878). 

Defense  —  former   judgment. 

See  Banes  v.  Dayton,  etc.,  R.  R.  Co.,  40  Oh. 
st.  95  (1883). 

Same  subject  —  nul  tiel  corporation. 

See  Racoon  River  Nav.  Co.  v.  Eagle,  29  Oh. 
St.  238  i  L876). 

Estoppel   of   stockholder   to   deny   exist- 
ence  of  corporation. 

See  §  3236,  note. 

Rescission  for  fraud. 

A  subscriber  to  stock  may  maintain  an  ac- 
tion to  rescind  his  subscription  when  he  was 
induced  to  subscribe  through  the  fraudulent 
representations  of  the  company. —  Nugent  v. 
Cincinnati,  etc.,  R.  R.  Co.,  2  Dis.  302    (1858). 

Set-off. 

See  Dungan  v.  Safford,  41  Oh.  St.  15   (1884). 

Liability  of  transferrers. 

Unless  a  special  agreement  is  made,  there  is 
no  liability  by  subscribers  who  have  trans- 
ferred their  subscriptions  of  stock  and  paid 
all  rails  to  the  time  of  transfer. —  Gilmore  v. 
Bank  of  Cincinnati,  8  Oh.  62,  71   (1837). 

Same  subject. 

A  transfer  to  an  irresponsible  party  will  not 
release  a  stockholder  from  payment. —  See 
Gaff  v.  Flesher,  33  Oh.  St.  107   (1877). 

Same  subject. 

A  transfer  to  a  fictitious  person  is  a  nullity, 
and  does  not  operate  to  release  a  subscriber. 
—  Muskingum,  etc..  Turnpike  Co.  v.  Ward,  13 
Oh.  120  (1884).  See  Krohn  v.  Central,  etc., 
Bridge  Co.,  4  N.  P.  270  (1897);  s.  c,  6  Dec. 
552. 

Subrogation  of  transferee. 

An  original  stockholder  who  has  been  com- 
pelled to  pay  calls  on  stock  after  he  has  as- 
signed  it,  is  entitled  to  be  subrogated  to  the 
rights  of  the  corporation  against  the  delin- 
quent assignee  upon  clear  proof  of  the  ac- 
eeptance  of  the  transfer  bv  the  assignee. — 
Tripp  v.  Appleman,  35  Fed.  19  (1888). 

Liability  of  transferee. 

Tin-  transferee  of  stock  impliedly  assumes 
all  the  obligations  which  rested  on  the  former 
holder,  and  is  liable  for  calls  to  the  same  ex- 
tent as  the  former  holder  before  the  transfer 
was  made. —  Turnbull  v.  Pomeroy  Salt  Co.,  24 
W.  L.  II.  133  (1890);  Gilmore  v.  Bank  of  Cin- 
cinnati, 8  Oh.  62,  71   (1837). 

Enforcement  by  creditors  in  equity. 

A  creditor's  bill  will  lie  against  a  stock- 
holder of  an  incorporated  company  to  compel 
him  to  pay  over  to  a  judgment  creditor  the 


amount  of  his  subscription  which  had  not  1  een 
paid  to  the  company. —  Gilmore  v.  Bank  of 
Cincinnati.  8  Oh.  62,  71  (1837)  ;  Henry  v.  Ver- 
milion, etc.,  R.  R.  Co.,   17  Oh.   187    (1848). 

Calls  after  insolvency. 

For  the  purposes  of  an  action  by  creditors, 
subscriptions  will  either  be  regarded  as  due, 
or  a  court  of  equity  will  itself  make  the  calls 
and  enforce  their  payment. — ■  Turnbull  v. 
Pomeroy  Salt  Co.,  24  W.  L.  B.  133  (1890); 
Henry  v.  Vermilion,  etc.,  R.  R.  Co..  17  Oh.  187, 
191    (1848). 

Action    by    creditor,   joinder  of   parties. 

In  an  action  by  a  creditor  to  reach  unpaid 
subscriptions,  stockholders  may  be  called  to 
answer  in  the  county  in  which  the  judgment 
debtor  has  lawfully  proceeded  against  them, 
though  they  may  reside  in  a  different  county. 

—  Ewin  v.  Cincinnati,  etc.,  R.  R.  Co.,  2  W.  L. 
M.  42    (1859). 

Same  subject. 

The  assignee  of  the  company  and  a  judg- 
ment creditor  and  all  the  stockholders  may  be 
joined.    Sayler  v.  Simpson,  12  Dec.  148  (1888). 

Want  of  remedy  at  law  —  pleading. 

If  it  be  alleged  that  by  reason  of  an  assign- 
ment for  the  benefit  of  creditors  or  other  cir- 
cumstances, the  assets  of  the  company  have 
been  put  beyond  the  reach  of  process  at  law, 
it  need  not  be  alleged  that  judgment  has  been 
obtained  and  execution  issued  without  avail. 

—  Turnbull  v.  Pomeroy  Salt  Co.,  24  W.  L.  B. 
133  (1890)  ;  Peter  v.  Farrell,  etc.,  Machine  Co., 
53  Oh.  St.  534,  557   (1895). 

Stockholders  cannot  question  creditor's 
judgment. 

A  stockholder  cannot  defend  on  the  ground 
that  the  judgment  of  the  creditor  plaintiff  is 
irregular,  the  corporation  having  made  a  de- 
fense or  been  duly  served,  the  judgment  can- 
not be  collaterally  impeached.—  Henry  v.  Ver- 
milion, etc.,  R.  R.  Co.,  17  Oh.  187,  191    (1848). 

Action  by  creditor  —  pleading. 

In  a  suit  by  a  creditor  as  against  a  general 
demurrer  it  is  sufficient  to  state  that  the  de- 
fendants held  stock,  the  amounts  severally 
held,  that  it  was  never  fully  paid,  and  that  a 
specified  amount  is  due  from  each. —  Turnbull 
v.  Pomeroy  Salt  Co.,  24  W.  L.  B.  133   (1890). 

Jurisdiction. 

At  the  instance  of  a  creditor,  a  court  of 
equity  will  take  cognizance  of  a  suit  to  sub- 
ject unpaid  subscriptions,  notwithstanding  an 
assignee  may  be  in  charge  of  the  corporate 
assets.—  See  Painesville,  etc.,  Bank  v.  King 
Varnish  Co.,  8  O.  C.  C.  563  (1894)  ;  s.  c,  4  C. 
D.  511. 

Statute  of  limitations  as  to  creditors. 

Unless  circumstances  intervene  to  make  it 
inequitable,  a  creditor  may  file  a  bill  to  col- 


General  Corporation  Law. 


141 


Stock  Subscriptions  —  Enforcement  of,  etc.,  {j  3253. 


lect  stock  subscriptions  within  fifteen  years. 
—  See  Warner  v.  Callender,  20  Oh.  St.  190 
(1870). 

Same   subject. 

The  right  of  creditors  may  he  lost  by  delay 
or  laches. —  Gilmore  v.  Bank  of  Cincinnati,  8 
Oh.  62,  71   (1837)'. 

Where  creditor's  action  is  to  set  aside  fraud 
ulent    payment    of   subscriptions.    See    Sayler 
v.  Simpson,  12  Dec.    14s   (1888). 

Joinder  of  actions  to  reach  unpaid  sub- 
scriptions  and    stockholders'   liability. 

See  §  3200  et  seq.,  and  notes. 

Lien  of   judgment  creditor,  filing   cred- 
itors'  bill. 

See  Dunbar  v.  Harrison,  18  Oh.  St.  24 
(1868) ;  Miers  v.  Zanesville,  etc.,  Turnpike  Co., 
13  Oh.  197  (1844). 

Enforcement      by      receiver  —  contribu- 
tion. 

When  a  suit  is  brought  by  a  receiver  of  an 
insolvent  corporation  against  a  subscriber,  and 
judgment  is  rendered  for  the  balance  due  on 
a  stock  subscription,  the  court  appointing  the 
receiver  has  power  to  so  control  his  conduct 
as  to  direct  him  to  collect  only  such  part  of 
the  judgment  as  will  be  the  debtor's  fair  pro- 
portion of  the  sum  necessary  to  discharge  the 
debts.— Clark  v.  Thomas/  34  Oh.  St.  46 
(1877). 

Injunction  against  directors. 

An  injunction  will  be  granted  on  the  ap- 
plication of  a  creditor  seeking  to  subject  un- 
paid subscriptions,  when  it  is  necessary  to 
prevent  the  directors  from  fraudulently  dis- 
posing of  the  funds  arising  from  the  collec- 
tion of  subscriptions. —  Upson  v.  Rocky,  etc., 
Quarry  Co.,  2  C.  L.  Rep.  355    (1879). 

Defense  —  capacity  of  plaintiff. 

The  fact  that  the  plaintiff  is  a  creditor  as 
well  as  assignee  of  the  company  is  no  de- 
fense.—Turnbull  v.  Pomeroy  Salt  Co.,  24  W. 
L.  B.  133    (1890). 

Defense  —  agreement    to    pay    in    prop- 
erty. 

In  an  action  by  creditors,  stockholders  who 
have  attempted  to  secure  by  agreement  the 
privilege  of  paying  their  subscriptions  in 
goods  or  otherwise  except  in  money  as  con- 
templated by  the  charter,  will  not  be  allowed 
the  benefit  of  such  stipulations.  Such  an 
agreement  will  be  considered  as  a  fraud  upon 
other  stockholders,  and  the  amount  due  must 
be  paid  in  monev. —  Henry  v.  Vermilion,  etc., 
R.  R.  Co.,  17  Oh.  187  (1848).  See  Noble  v. 
Callender,  20  Oh.  St.  199   (1870). 

Payment  in  property  at  inflated  value. 

Where  a  corporation  takes  property  in  pay- 
ment of  a  subscription  at  an  inflated  valua- 
tion though  in  good  faith,  the  transaction  will 


be    regarded    as    a     mb  cription    foi    i  he    full 
amount   agreed  upon,  and  credit   w  ill  be 
for   the   actual    value   ol    the    property.     The 
balance  left   after  applying  this  credit  will  be 
deemed  a  debt  due  from  t  be  subscriber  to  the 
i  "i  porat  ion,    and    therefore    corporate 
subjecl     to     claims    of     creditors.-  -  <  lat 
Tippecanoe   stone  Co.,  57   Oh. 
See    Lloyd  v.   Preston,  14G  U.  8.   630 

Same  subject. 

Where  the  members  of  an  insolvent  partner- 
ship  convert  (heir  business  into  a  corporation, 
turning  over  to  the  corporation  all  the  assets 
of  the  partnership  in   payment  of  then 
subscriptions,    but    the    corporation    also    ae 
Miming  all   the   liabilities  of  the   pai 
nothing  should  be  counted   as  a    payment    «,f 
the   stock    subscriptions,   and    the    subscribers 
to  such  stock  remain  liable  to  the  creditors  of 
the  corporation  for  their  subscription.— Ford 
v.  Lamson,  17  ( ).  ( '.  ( '.  539  (1899);   s.  c,  9  I 
D.  374;   Preston  v.  Cincinnati,  etc.,  II    1: 
36  Fed.  54  (1888);  s.  c,  6  O.  F.  D.  127.     See 
Sayler   v.  Simpson,   12  Dec.  148   (1888). 

Liability  on  stock  sold  below  par. 

If  necessary  to  protect  creditors  who  become 
such  after  the  sale  of  stock  by  a  corporation 
below  par,  the  difference  between  tin-  discount 
price  and  the  par  value  of  stock  so  -old  may. 
it,  seems,  be  held  as  assets  of  the  company  for 
the  benefit  of  creditors;  that  the  court*  will 
consider  all  the  equities  of  the  case  and  may. 
in  a  proper  case,  leave  such  assets  to  be 
reached  after  stockholders'  liability  has  been 
exhausted. —  See  Peter  v.  Union  Mfg.  Co  56 
Oh.  St.  181,  198  (1897):  Sturges  v.  Stetson,  3 
O.  F.  D.  497  (1858);  Fosdick  v.  Sturges,  1 
Biss.   (U.  S.)   248   ( 18581 . 

Defense  —  fraud. 

A  subscriber  who  delays  to  act  when  he  has 
been  defrauded  until  a  creditor  starts  a  suit 
to  subject  unpaid  subscriptions,  cannot,  as 
against  creditors,  defend  on  that  ground. — 
Painesville,  etc.,  Bank  v.  King  Varnish  Co.,  8 
O.  C.  ('.  563  (1894);  s.  c,  4  C.  D.  511.  See 
Mansfield  v.  Woods,  29  W.  L.  B.  Ill  (1893); 
Ryan  v.  Miami,  etc.,  Ry.  Co.,  10  A.  L.  K.  263 
(1881). 

Defense  —  invalidity  of  issue  of  stock. 
A  subscriber  to  stock  who  acts  as  a  stock- 
holder cannot  defend  on  the  ground  of  the 
invalidity  of  the  issue  of  the  stock  a-  against 
creditors.—  Clark  v.  Thomas.  34  Oh.  St.  46 
(1877). 

Defense  —  stock  in  name  of  other  party. 

It  is  no  defense  to  a  claim  for  unpaid  sub- 
scriptions that  the  stock  stands  in  tin-  name 
of  another  party,  as  equitable  holders  are 
liable.— Lloyd  v.  Preston,  140  U.  S.  630 
(1S92). 

Set-off. 

In  an  action  by  a  creditor  to  reach  stock 
subscriptions,  a  stockholder  cannot  6et  off  a 


142 


Private  Corporations  in  Ohio. 


Stock  Certificates,  etc.,   §  3254. 


claim  due   him    from    the    company.      Pames- 
ville,  etc.,  Bank  v.  King  Varnish  Co.,  8  0.  C. 
,   |  l894)  .  s.  c-j    |  c.  D.  511  ;   Union,  etc., 
|,'„.  Co.  v.  Jones,  35  Oh.  St.  351    (1880). 

Defense  —  illegality    of    corporation. 

A  stockholder,  when  called  upon  by  creditors 
to  pav  the  balance  due  on  stock  subscriptions, 
cannot  defend  on  the  ground  that  the  incorpo- 
ration was  illegal,  as.  for  instance,  that _  the 
Mil-,  rip!  ions  were  made  before  the  articles 
were  filed.—  Royce  v.  Tyler,  2  0.  C.  C.  17;") 
(1887)  :  s.  c,  1  C.  D.  428.  See  Warner  v.  Cal- 
ender 20  Oh.  St.  100  (1870):  Mansfield  v. 
Mutual,  etc..  Ins.  Co..  29  W.  L.  B.  Ill   (1893). 

Defense  —  ouster  of  corporation. 

Where  a  corporation  de  facto  in  a  proceed- 
ing in  quo  warranto  has  been  ousted  from  the 
franchise  of  being  a  corporation,  such  ouster 
is  no  defense  to  a  suit  by  a  creditor  against 
stockholders. —  Rowland  v.  Meader  Furniture 
18  Oh.  St.  2(59  (1882). 

Defense  —  notification     to     company     of 
termination  of  liability. 

It  is  no  defense  as  against  creditors  that 
the  subscriber  has  notified  the  company  that 
he  would  not  be  liable  for  debts  on  the  as- 
sumption that  the  corporate  existence  was 
without  authority  of  law.— Gaff  v.  Flesher, 
33   Oh.  St.   107    (1877). 

Defense  —  subscription    not   to    be    paid. 

It  is  no  defense,  as  against  creditors,  that  a 
subscription  was  not  to  be  paid,  but  was  to  be 
used  solely  to  prove  to  the  public  that  the 
stock  had  been  subscribed,  and  to  prevent  the 
control  of  the  company  from  passing  to  other 
parties.—  Bates  v.  Lewis,  3  Oh.  St,  459  (1854). 

Agreement   as   to   individual  liability. 

A  stipulation  in  a  mortgage  that  stock- 
holders should  in  no  way  be  individually  liable 


for  the  debts  of  the  company  does  not  release 
stockholders  from  liability  to  creditors  on 
stock  subscriptions. —  Raymond  v.  Spring 
Grove,  etc.,  Ry.  Co.,  21  W.  L.  B.  103  (1889). 
See  Preston  v.  Cincinnati,  etc.,  R.  R.  Co.,  36 
Fed.  54   (1888). 

Liability    of    stockholders    to    de    facto 
company. 

The  stockholders  in  a  de  facto  company 
stand  in  the  same  relation  to  creditors  as 
stockholders  of  a  de  jure  corporation. —  Row- 
land v.  Meader  Furniture  Co.,  38  Oh.  St.  269 

(1SS2). 

Cancellation  of  subscription. 

In  an  action  by  creditors  it  is  no  defense 
that  certain  of  the  defendants,  nnder  an  ar- 
rangement with  one  of  the  promoters  of  the 
enterprise,  drew  up  and  signed  a  cancellation 
of  their  subscriptions. —  Royce  v.  Tvler,  2  O. 
C.  C.  175  (1887)  ;  s.  c,  1  C.  D.  428;  Warner  v. 
Callender,  20  Oh.   St.    190,    19S    (1S70). 

Defense  —  change  of  subscription. 

An  oral  agreement  made  between  a  sub- 
scriber  to  the  capital  stock  of  a  company  and 
its  president  that  another  should  take  a  cer- 
tain number  of  shares  of  the  stock  subscribed 
for,  and  pay  to  the  corporation  a  proportion- 
ate share  of  the  subscription,  is  not  available 
as  a  defense  to  an  action  brought  to  enforce 
the  payment  of  the  subscription  for  the  bene- 
fit of  creditors. —  Painesville.  etc.,  Bank  v. 
King  Varnish  Co.,  8  O.  C.  C.  563  (1894)  ;  s.  c, 
4  C.  D.  511. 

Creditor's  action  against  state. 

No  action  will  lie  by  a  creditor  against  the 
state  to  compel  the  payment  of  stock  subscrip- 
tions.—  Miers  v.  Zanesville,  etc.,  Turnpike 
Co.,  11  Oh.  273  (1842). 


§  3254.  STOCKHOLDERS  ENTITLED  TO  CERTIFICATES  OF  STOCK;  REC- 
ORD.— Stockholders  shall  be  entitled  to  receive  (certificates)  of  their  paid-up  stock  in 
the  company;  and  the  president  and  secretary  of  the  company  shall  on  demand,  exe- 
cute and  deliver  to  a  stockholder  a  certificate  showing  the  true  amount  of  the  stock 
held  by  him  in  the  company.  And  it  shall  be  the  duty  of  the  directors  of  such  cor- 
poration, when  organized,  to  keep  a  record  of  all  stock  subscribed  and  transferred,  and 
of  the  secretary  or  recording  officer  of  such  corporation  to  register  therein  all  sub- 
scriptions and  transfers  of  stock.  For  that  purpose  a  book  shall  be  kept  and  when- 
ever any  certificate  or  certificates  of  stock  are  assigned  and  delivered  by  a  stockholder, 
the  assignee  thereof  shall  be  entitled  on  demand  to  have  the  same  duly  transferred 
upon  said  book  by  such  secretary  or  recording  officer,  whose  duty  it  shall  be  at  the 
same  time  to  enroll  therein  also  the  name  of  said  assignee  as  a  stockholder,  and  the 
books  and  records  of  such  corporation  shall  at  all  reasonable  times  be  open  to  the 
inspection  of  every  stockholder.     (April  14,   1884,  81  v.   196;  R.  S.   1880.) 


Duty  to  issue  certificate  of  stock. 

A   corporation   i-  bound   under  this  section 
through    its   proper   officers,   to   issue    to  each 

subscriber,  who  has  fully  paid  for  his  stock,  a 

truly    representing   his    interesl    in 

orporation.-     State   ex   rel.   v.   Carpenter, 


51   Oh.   St.  83    (1S94):    Freon  v.  Carriage  Co., 
42  Oli.  St.  30,  36   (1894). 

Duty  of  company  as  to  stock. 

A   company   is   charged   with  a  duty  of  ob- 
serving   care    in   the    issue    of    stock,    and    of 


General  Corporation   Law. 


143 


Stock  Certificates,  etc.,   S  3254. 


supervising  their  agents  charged  with  the  pei 
formanee  of  the  duty,  It  owes  this  duty  to  all 
persons  dealing  in  its  BtocJc,  and  if  by  reason 
of  its  negligence  in  this  regard  spurious  stuck 
is  issued,  it  is  liable  in  damages  to  any 
one  purchasing  it  for  value  without,  knowledge 
of  its  fraudulent  character;  and  a  failure  of 
the  purchaser  to  inquire  at  the  office  of  the 
company  is  not  such  contributory  negligence 
as  will  deprive  him  of  the  right  to  recover, 
although  such  inquiry  would  have  disclosed 
the  fraudulent  character  of  the  stock. —  Cin- 
cinnati etc.,  Ry.  Co.  v.  Citizens'  Nat.  Bank, 
56  Oh.  St.  351  (1897).  See  Robison  v.  Cleve- 
land, etc.,  Ry.  Co.,  13  Dec.  1. 

Duty  where  stock  is  held  by  trustees. 

See  Fuller  v.  Cleveland,  etc.,  Ry.  Co.,  8 
X.  P.  605  (1001);  Robison  v.  Cleveland,  etc., 
Ry.  Co.,  13  Dec.  1. 

Power     of    president    and     secretary    to 
issue  stock. 

The  acts  of  the  president  and  secretary  of  a 
corporation  in  issuing  stock  are  the  acts  of 
the  corporation,  for  in  such  acts  they  repre- 
sent it  as  a  corporation,  not  as  ordinary 
agents. —  Cincinnati,  etc.,  Rv.  Co.  v.  Citizens' 
Nat.  Bank,  56  Oh.  St.  351  (1897).  See  Farm- 
ers' Bank  v.  Diebold  Safe,  etc.,  Co.,  47  W.  L.  B. 
585    (1902). 

Form  of  stock  records. 

This  section  does  not  provide  in  what  form 
the  records  shall  be  kept,  nor  for  a  book  of 
anv  special  kind. —  Freon  v.  Carriage  Co.,  42 
Oh.  St.  30  (1884);  Harpold  v.  Stobart,  46  Oh. 
St.  397,  400   (1889). 

Issue    of     stock    without    surrender    of 
outstanding    certificate. 

Where  a  certificate  of  stock  is  issued  in 
favor  of  an  officer,  and  is  by  him  pledged,  any 
future  certificates  issued  to  evidence  the  same 
shares  and  pledged  to  the  company  itself  are 
void  for  want  of  a  valid  transfer,  the  original 
certificate  not  being  surrendered  as  required 
by  law  Such  facts  are  notice  to  the  company 
of  the  rights  of  others. —  Lee  v.  Citizens' 
Bank,  2  C.  S.  C.  298  (1872). 

Assignment  in  blank. 

Stock  may  lie  assigned  and  an  attorney  ap- 
pointed in  blank. —  Lee  v.  Citizens'  Bank.  2 
C.   S.  C.  29S    (1872). 

A   certificate   of   stock  is   not   classed   as 

a  negotiable  instrument. 

Farmers'  Bank  v.  Diebold  Safe,  etc.,  Co.. 
47  W.  L.  B.  5S5  (1902).  See  Railway  Co.  v. 
Bank,  56  Oh.   St.  351,  3S3   (1S97). 

Legal  title  to   stock. 

The  legal  title  to  stock  is  in  the  person  ap- 
pearing on  the  company  books  as  owner,  and 
he  is  entitled  to  vote  thereon  and  receive  divi- 
dends.— See  Norton  v.  Norton..  43  Oh.  St.  522 
(1885);  National  Bank  v.  Lake  Shore,  etc., 
Ry.  Co.,  21  Oh.  St.  22l    (1871). 


Transfer  of  equitable  title. 

Although  :i  transfer  on  the  books  of  the 
company  maj  be  necessary  topass  a  legal  title 
to  stock,  v1  ;|"  equitable  title  may  In-  other- 
wise conveyed,  and   the  company  i-   bound  to 

I   such  equitj    from  t  he  i  ime  ii    1 1 
notii  ••  of  it.      Conant    \.    Reed,    I   I  >h.  ■•■     298 
I  1853)  ;    Haldeman   \.    Hillsborough,  etc,  I:.  I:. 
Co.,   2    Handy,    101    I  L85  i  Straman    v. 

North   Baltimore,  etc.,  I  o.,  3  O.  C.  C.   B9,  99 
(1893);    s.    <■..    -I    c.    I).    339;     Armstrong    v. 
Heraneonit    I'.rewing  Co..  26   W.    I..    I;. 
(1891);   Krebs  v.  Forbriger,  21   W.   L.   B.   313 
(1889). 

Same   subject. 

A  certificate  'if  Btock,  being  of  the  same 
nature  as  a  chose  in  action,  may  be  the  sub- 
ject of  an  equitable  assignment  by  mere  deliv- 
ery without  an  indorsement  or  written  trans- 
fer; and  a  proper  transfer  so  a-  to  permit  the 
transferee  to  convert  hi-  equitable  into  a  legal 
title  may  be  compelled  in  equity  as  against 
the  transferrer  or  his  personal  representative. 
—  Lawler  v.  Kell,  4  N.  P.  218  (1897);  s.  c 
6  Dec.  311. 

Reservation   of  dividends. 

In  the  transfer  of  stock  in  a  company  no 
valid  reservation  can  be  made  of  any  portion 
of  a  future  dividend. —  Marble  v.  Van  Wert 
Nat.  Bank,  3  O.  C.  C.  464  (1888)  ;  s.  c.  2  C.  D. 
265. 

Assignment    with    notice     of    prior    as- 
signment. 

Whoever  takes  an  assignment  of  stock,  with 
notice  of  a  prior  assignment  which  conveyed 
the  Legal  title,  acquires  no  interest  therein. — 
(  reed  v.  Lancaster  Bank.   1   Oh.   St.   1    (1852). 

Transfer   to   trustee. 

A  shareholder  ha-  the  right,  for  a  legitimate 
and  proper  purpose,  to  transfer  hi-  stock  to 
another,  as  trustee  for  him.  or  for  another 
person,  and  may  stipulate  that  the  trust  -hall 
continue  for  a  specified  period,  or  indefinitely. 
and  that  during  its  continuance  the  trustee 
shall  have  the  legal  title  thereto  and  the  right 
to  vote  upon  it.  -State  ex  rel.  v.  Ohio, 
Ry.  Co.,  6  0.  C.  C.  415  (1892);  s.  c,  3  C.  D. 
518. 

Transfer  to  fictitious  person. 

A  transfer  to  a  fictitious  person  is  void,  and 
leaves  the  parties  a-  they  were  before  the 
transfer. —  Krohn  v.  Central  Bridge  Co..  4  X. 
P.  270  (1897>;  5  Dee.  113;  Muskingum  Turn- 
pike Co.  v.  Ward,  13  Oh.  120  (1844)  :  (.all  v. 
Flesher,  33  Oh.  St.  107    (1877). 

Power  of  executor  to  sell  stock. 

An  executor  of  a  will  has  no  right  or  power 
to  execute  a  power  of  attorney  authorizing  a 
person  to  transfer,  sell  and  indorse  certificatee 
of  stock.— Allen  v.  r;lnl,e  Tns.  Co.,  10  W.  L. 
B.  198,  200  (1888);  affirmed  32  W.  L.  B.  374. 


144 


Private  Corporations  -in  Ohio. 


Stock  Certificates,  etc.,   §  3254. 


Person     may     be     stockholder     without 
certificates. 

When  a  subscription  is  made  and  paid  by  a 
stockholder  lie  becomes  a  stockholder.  It  is 
nut  necessary  to  issue  a  certificate  of  stock. — 
See  Henderson  v.  Hogan,  1  W.  L.  1'..  227 
(1876)  :  Cincinnati,  etc.  Ry.  Co.  v.  Third  Nat. 
Bank,  1  0.  C.  C.  199;  s.  c,  1  C.  D.  109,  207 
I 1885). 

Evidence   as    to   stockholders. 

The  books  of  a  corporation  are  admissible 
as  evidence  to  show  that  one  is  not  a  stock 
holder  therein  who  claims  to  be  such. —  Cin- 
cinnati, etc..  Ry.  Co.  v.  Rawson,  10  W.  L.  B. 
4H  (1886).  See  Tripp  v.  Appleman,  35  Fed. 
10    (  1S88);   s.  c,  6  O.  F.  D.  71. 

Lis  pendens  as  to  stock. 

The  doctrine  of  lis  pendens  does  not  apply 
In  certificates  of  shares  of  stock  transferable 
by  blank  indorsement  and  power  of  attorney. 
—  Krebs  v.  Forbriger,  21  W.  L.  B.  313   (1889). 

Presumption  of  validity  of  issue. 

There  is  a  presumption  that  the  issue  of 
stock  is  regular  and  valid  until  the  contrary 
is  shown. —  Cincinnati,  etc.,  Ry.  Co.  v.  Raw- 
son.  10  W.  L.  B.  423  (1886);  Citizens'  Nat. 
Bank  v.  Cincinnati,  etc.,  Ry.  Co.,  11  W.  L.  B. 
86  (1884);  Perin  v.  Cincinnati,  etc.,  Ry.  Co., 
IS  W.  L.  B.  382   (1887). 

Proof  as  to  invalidity  of  stock. 

Where  a  corporation  disputes  the  validity  of 
a  certificate  of  stock  issued  by  the  secretary, 
and  hearing  the  genuine  signature  of  the 
president  and  secretary  thereof,  and  the  cor- 
porate seal,  the  burden  of  proving  such  cer- 
tificate to  be  invalid  rests  upon  the  corpora- 
tion.—  Cincinnati,  etc,  Ry.  Co.  v.  Rawson,  16 
W.  L.  B.  423   (1886). 

Suit  to  annul  questionable  stock. 

Spurious  certificates  of  stock  issued  under 
apparent  authority,  undistinguishable  from 
genuine  certificates,  are  clouds  upon  the  title 
of  the  genuine  stockholders  whicli  a  court  of 
equity  will  remove.  The  directors  of  the  .c.or- 
por.it  ion  may  institute  a  suit  for  that  purpose 
as  the  representatives  of  the  genuine  stock- 
holders and  in  their  behalf,  and  if  they  refuse 
to  bring  such  suit  a  stockholder  may  bring  it, 
making  the  corporation  a  co-defendant. — 
Kohi-on  v.  Cleveland,  etc.,  Ry.  Co.,  5  N.  P. 
293    (1898);   s.  c,  7  Dec.  312. 

Same  subject. 

Where  an  officer  of  a  corporation  has  wrong- 
fully issued  stock  in  his  own  name  and  pledged 
i'  to  secure  loans,  ami  all  the  holders  claim 
such  certificates  to  he  genuine,  and  commence 
actions  againsl  tin-  company  on  its  refusal  to 
transfer  said  3hares,  the  company  may  unite 
all  holders  in  an  action  to  cancel  the  certifi- 
30  as  to  remove  the  cloud  upon  the  title 
of  the  holders  of  the  genuine  certificates  and 
prevent   a    multiplicity   of   suits.— Cincinnati, 


etc.,  ~Rx.  Co.  v.  Citizens'  Nat.  Bank,  22  W.  L. 
B.  248;  s.  c.  50  Oh.  St.  351.  » 

Transfer    of    stock    owned    by   the    state. 

See  Harper  v.  Ampt,  32  Oh.  St.  291    (1877). 

Stockholder    as    witness    under   old   law. 
See  Little  Miami  R.  R.  Co.  v.  Martin,  10  W.' 
L.  J.  54    (1852);   Methodist  Church  v.  Wood,i 
5  Oh.  2S3    (1831). 

Record    of    subscriptions    and   transfers 
of  stock. 

It  is  not  necessary  that  the  secretary  or 
directors  of  a  corporation  themselves  keep 
the  record  of  subscriptions  and  transfers  of 
stock,  required  by  §  3254,  Rev.  Stat.  By  the 
appointment  of  a  transfer  agent  and  registrar, 
the  duties  imposed  by  that  section  are  de- 
volved upon  them.  Robison  v.  Cleveland  City 
Ry.  Co.,  13  Dec.  1. 

Records  as  evidence. 

The  record  kept  under  this  section  may  be 
used  as  evidence. —  See  Toledo,  etc.,  Ry.  Co. 
v.  Toledo,  etc.,  Rv.  Co..  0  0.  C.  C.  362,  392 
(1892);  s.  c,  3  C.'D.  493. 

Transfers  as  against  a  lien  of  company 
on  stock. 

See  Conant  v.  Reed,  1  Oh.  St.  298  (1853); 
Downer  v.  Zanesville  Bank,  Wright,  477 
(1833);  Bellevue  Bank  v.  Higbee,  4  0.  C.  C. 
222  (1889)  ;  s.  c,  28  W.  L.  B.  336;  s.  c,  2  C. 
D.  512;  Lee  v.  Citizens'  Bank,  2  C.  S.  C.  298 
(1872);  Franklin  Bank  v.  Commercial  Bank, 
4  A.  L.  R.  705  (1876)  ;  Towle  v.  Felch,  40  W. 
L.  B.  186  (1896);  Stafford  v.  Bank,  61  Oh.  St. 
100  (1890). 

Genuineness  of  transfer  and  identity  — 
proof. 

A  corporation  of  which  a  transfer  of  stock 
is  demanded  may  compel  the  genuineness  of 
the  transfer  and  the  identity  of  the  parties  to 
be  satisfactorily  established ;  but  where  the 
evidence  establishes  such  identity  and  genuine- 
ness the  company  cannot  arbitrarily  refuse  to 
make  the  transfer.- —  Krohn  v.  Central,  etc., 
Bridge  Co.,  4  N.  P.  270   (1897);   s.  c,  6  Dec. 


Duty  of  purchaser  to  inquire. 

In  the  absence  of  any  knowdedge  of  fraud  in 
its  issue,  there  is  no  rule  of  diligence  that  re- 
quires one  in  purchasing  stock  to  inquire 
beyond  the  genuineness  of  the  certificate  on  its 
face.  If  the  signatures  of  the  president  and 
secretary  are  genuine,  and  the  seal  has  been 
affixed,  and  the  paper  on  its  face  is  a  certifi- 
cate of  stock,  it  is  unnecessary  to  inquire  fur- 
ther even  if  it  is  issued  to  the  secretary. — 
Cincinnati,  etc.,  Ry.  Co.  v.  Citizens'  Nat.  Bank, 
56  Oh.  St.  351,  379   (1897). 

See  also  the  following  cases  under  the  same 
facts:  Cincinnati,  etc.,  Ry.  Co.  v.  Third  Nat'. 
Bank,  1  0.  C.  C.  199  (1885);  s.  c,  1  C.  D. 
100;  Citizens'  Nat.  Bank  v.  Cincinnati,  etc., 
Ry.  Co.,  11  W.  L.  B.  86  (1884);  First  Nat. 
Bank  v.  Cincinnati,  etc.,  Ry.  Co.,  16  W.  L.  B. 


GENEH  \l.    <  lORPORATION     I  .  \ 


\\  . 


145 


Stock  Certificates,  etc.,   §  3254. 


399  (1886);  Cincinnati,  etc.,  Ry.  Co  \  llau 
son,  10  W.  L.  B.  423  (1886);  s.  c.  affirmed,  25 
W.  L.  B.  87;  Perin  v.  Cincinnati,  etc.,  Ry.  I  0. 
18  W.  L.  B.  382  (1887);  Cincinnati,  etc.,  Ry. 
Co.  v.  Citizens'  Nat.  Bank,  22  W.  L.  B.  248 
(1889);  s.  c,  56  Oh.  St.  351;  Cincinnati,  etc., 
Ry.  Co.  v.  Citizens'  Nat.  Bank,  24  W.  L.  B. 
198;  s.  c,  29  W.  L.  B.  15. 

Exception. 

Where  the  secretary  of  a  company  sold  his 
stock  to  the  president  and  transferred  it  by 
indorsement  in  blank  and  afterward  crim- 
inally obtained  possession  of  the  certificate 
and  pledged  it,  the  pledgee  obtained  no  title 
as  against  the  real  owner.  Farmers'  Hank  v. 
Diebold  Safe,  etc.,  Co.,  47  W.  L.  B.  585   (1902). 

Deceased  stockholder,  existence  of  will, 
duty  of  officers. 

When  certificates  of  stock  of  a  deceased 
stockholder  are  presented  to  the  officers  of  a 
corporation  for  transfer,  and  they  are  in- 
formed of  the  existence  of  a  will,  they  are 
presumed  to  have  knowledge  of  its  contents, 
so  far  as  they  affect  the  title  to  the  stock  or 
the  right  to  transfer  the  same. —  Allen  v. 
Globe  Ins.  Co.,  19  W.  L.  B.  198,  200  (1888). 

Rights    of   assignee    of    delinquent    sub- 
scriber. 

If  an  installment  of  stock  in  a  company  re- 
main unpaid  by  the  original  subscriber,  an 
assignee  of  the  stock,  who  is  willing  to  comply 
with  the  corporate  regulations  respecting  the 
issue  of  stock  certificates  and  the  transfer  of 
stock,  may,  upon  making  a  proper  tender  of 
the  unpaid  installment,  with  the  interest 
thereon,  maintain  an  action  in  equity  against. 
the  corporation  to  compel  it  to  issue  to  him  a 
stock  certificate. —  Iron  R.  R.  Co.  v.  Fink,  41 
Oh.  St.  321  (1884). 

Remedy  for  refusal  to  transfer. 

When  the  proper  officers  of  a  private  cor- 
poration, organized  for  profit,  refuse,  on  de- 
mand, to  issue  a  certificate  of  stock  to  a  person 
entitled  thereto,  his  appropriate  remedy  is  by 
action  against  the  corporation  for  damages, 
or  to  enforce  the  issue  and  delivery  of  such 
certificate  in  equity,  either  of  which  he  may 
pursue  at  his  election.  Mandamus  is  not  the 
proper  remedy. —  State  ex  rel.  v.  Carpenter 
51  Oh.  St.  83  (1894);  Freon  v.  Carriage  Co 
42  Oh.  St.  30  (1884);  Richardson  v.  Grand, 
etc.,  Mining  Co.,  1  W.  L.  B.  140  (1876).  bee 
Allen  v.  Globe  Ins.  Co.,  19  W.  L.  B.  198 
(18S8);  Krohn  v.  Central,  etc.,  Bridge  Co.,  4 
N.  P.  270  (1897)  ;  s.  c,  6  Dec.  552. 

Joinder  of  actions. 

Courts  of  equity  will  not  refuse  to  enter- 
tain jurisdiction  when,  in  connection  with  the 
relief  of  decreeing  a  transfer  and  issue  of 
stock,  a  further  and  essential  relief  is  asked. 
which  courts  of  equity  by  their  procedure  are 
best  adapted  to  furnish. —  See  Arbuckle  v. 
Woolson  Spice  Co.,  21  U.  C.  C.  358  (1901); 
Iron  R.  R.  Co.  v.  Fink,  41  Oh.  St.  321    (1884). 

LAW    GOV.    PRIV.    COR.  — IO. 


Waiver  of  rights. 

The  righl  to  I  reat  I  he  r<  Pusal  to  i  ran  »f<  i 
i  '"I.  b  i  a  com  ci  -  i « .  1 1  may  be  «  aived  Andes 
Ins.  Co.  v.  Waters,  1   W.  I..  B.   17  ! 

Measure  of  damages. 

In  an  action  for  damages  for  the  refusal  to 
transfer  shares,   the  damages  are    nol    limited 
to  the  market  value  of  the  Btock.    The  meas 
ure  of  damages  is  it-  actual  value  to  be  deter 
mined    under   all    I  be  circumstanci  b,  such   a  - 
the  company's  dividend-making  rapacity,  the 
good-will,    etc. —  Freon    v.    Carriage    Co.,    42 
Oh.  St.  30  (1884)  :  State  ex  rel.  v.  Carp 
51  Oh.  St.  83,  88   (1894). 

Action  by  equitable   owner. 

Where  the  equitable  owner  of  shares  in  a 
company,  the  certificate  being  outstanding  in 
the  name  and  possession  of  another  party 
claiming  title,  demands  <>f  the  company  tin- 
transfer  and  delivery  of  a  certificate  of 
shares,  and  meets  with  refusal,  he  has  no 
right  of  action  for  the  value  of  the  stock. 
National  Bank  v.  Lake  Shore,  etc.,  Ry.  Co.,  21 
Oh.   St.  221    (1871). 

Right  of  pledgee  to  transfer. 

A  pledgee  of  stock  in  a  corporation,  when 
authorized  by  a  blank  power  of  attorney  in- 
dorsed on  the  certificate  and  signed  by  the 
pledgor,  may  cause  such  shares  to  be  trans 
ferred  on  the  books  of  the  company  into  his 
own  name,  and  upon  the  refusal  of  the  proper 
officers  of  such  company  to  make  the  transfer 
when  duly  requested,  the  pledgee  may  main- 
tain an  action  against  the  company  for  dam- 
ages as  for  a  conversion  of  the  shares  to  its 
own  use,  but  when  the  action  i-  in  equity  and 
involves  an  accounting,  no  damages  for  con- 
version can  be  recovered. —  Cincinnati,  etc., 
Ry.  Co.  v.  Rawson,  16  W.  L.  B.  423  (IE 
Dayton  Nat.  Bank  v.  Merchants'  Nat.  Bank, 
37  Oh.  St.  208  (1881). 

Statute    of  limitations. 

The  statute  of  limitations  does  not  begin  to 
run  as  against  a  transferee  of  stock  seeking 
to  compel  a  transfer  until  he  has  made  a  de- 
mand on  the  company  for  a  transfer,  and  has 
been  refused. —  Iron  R.  R.  Co.  v.  Fink.  41  Oh. 
St.  321   (1884). 

Same  subject. 

An  action  by  the  transferee  of  a  stock  sub- 
scription to  compel  the  issuance  of  a  certifi- 
cate of  stock  on  the  tender  of  the  balance  due. 
is  ncjt  barred  because  more  than  fifteen  years 
previous  to  his  demand  for  stock  his  trans- 
ferrer declined  to  pay  the  balance  due  on  the 
subscription. —  Iron  R.  R.  Co.  v.  Fink.  -11  i  >h. 
St.  321    (1884). 

Same  subject. 

Where  stock  has  been  transferred  by  in- 
dorsement in  blank,  and  thereafter  the  com- 
pany, at  the  instance  of  the  original  holder, 
and    on    the   supposition    that    the    stock    has 


146 


Private  Corporations  in  Ohio. 


Stock  Certificates  —  Lost,  Destroyed,  etc.,  §§  3254-1-3254-2. 


been  lost,  issues  new  stock  to  a  second  trans- 
feree of  such  owner,  the  statute  of  limitations 
does  not  commence  to  run  against  the  first 
transferee  until  he  has  demanded  a  transfer 
and  has  been  refused,  or  until  he  received 
notice  of  the  transfer  and  issuance  of  stock  to 
other  parties. —  Cleveland,  etc.,  R.  R.  Co.  v. 
Robbins,  35  Oh.  St.  483  (1880). 

By-law  prohibiting  transfer. 

A  by-law  prohibiting  the  transfer  on  the 
books  of  the  company  of  stock  which  has  been 
paid  by  the  notes  and  mortgages  of  the  hold- 
ers is  unreasonable,  and  will  not  justify  a 
refusal  to  transfer. —  Andes  Ins.  Co.  v. 
Waters,  1  W.  L.  B.  172   (1876). 

Transfer  to  a  corporation. 

Inasmuch  as  one  corporation  cannot  hold 
stock  in  another,  it  is  not  entitled  to  a  trans- 
fer of  stock  purchased  by  it,  and  there  is  no 
liability  on  a  refusal  to  transfer. —  Franklin 
Bank  v.  Commercial  Bank,  36  Oh.  St.  350 
(1881). 

Parties. 

The  transferrer  of  stock  is  not  a  necessary 
party  to  a  suit  to  compel  the  transfer  of  stock 


unless  such  transferrer  claims  some  interest 
in  the  stock. —  Krohn  v.  Central  etc.,  Bridge 
i  !o.,  4  N.  P.  270  (1897) ;  s.  c,  6  Dec.  552. 

Sale  of  stocks  held  by  cities  and  coun- 
ties. 

See  §  2675-6  et  seq. 

Right  to  inspect  books. 

The  right  to  inspect  the  books  of  a  corpora- 
tion does  not  depend  on  the  motive  of  the 
stockholder,  and  he  is  entitled  to  inspection  at 
any  reasonable  time  in  person  or  by  agent, 
and  he  may  take  copies  of  entries  in  books  and 
records. —  Cincinnati  Volksblatt  Co.  v.  Hoff- 
meister,  62  Oh.  St.  189  (1900);  Blymer  v. 
Blymer,  5  N.  P.  71   (1898). 

Remedy   and   pleading. 

Injunction  is  the  proper  remedy,  not  man- 
damus, and  a  petition  is  good  when  it  akeges 
that  the  plaintiff  is  a  stockholder,  a  request 
for  inspection,  refusal  to  fix  reasonable  time 
or  to  allow  inspection. —  Cincinnati  Volks- 
blatt Co.  v.  Hoffmeister,  62  Oh.  St.  189  (1900). 

Inspection  of  books  under  §  5290. 

See  Arbuckle  v.  Woolson  Spice  Co.,  21  O.  C. 
C.  348   (1901). 


§  3254-1.     RE-ISSUING  OF  CERTIFICATES  OF  STOCK  LOST  OR  DESTROYED. 

—  In  case  any  certificate  of  stock  in  any  corporation  be  lost  or  destroyed,  the  owner 
thereof  may  file  his  petition  in  the  probate  court  of  the  county  where  the  principal 
business  office  of  such  corporation  is  located  in  this  state,  setting  forth  a  pertinent 
description  of  such  certificate,  and  a  full  statement  of  the  facts  relating  to  such 
destruction  or  loss,  including  the  fact  that  he  is  the  owner  of  such  certificate,  and  was 
at  the  time  of  its  loss  or  destruction,  and  had  not  assigned,  transferred  or  disposed  of 
the  same,  and  that  the  same  was  not  pledged  to  any  one,  or  if  so,  stating  to  whom, 
and  the  facts  relating  thereto,  and  such  petitioner  shall  make  the  corporation  and 
any  pledgee  defendants  to  such  proceeding,  and  shall  serve  a  certified  copy  of  such 
petition  on  some  chief  officer  of  such  corporation,  and  on  any  such  pledgee,  on  which 
copies  the  probate  judge  shall  state  over  his  signature  when  said  petition  will  be 
heard,  and  said  copies  shall  be  so  served  not  less  than  twenty  days  before  the  hearing, 
and  such  petitioner  shall  also  publish,  for  three  consecutive  weeks,  in  some  newspaper 
published  and  of  general  circulation  in  the  county  where  the  proceeding  is  pending, 
and  in  the  county  where  the  petitioner  resides  the  notice  containing  the  substance 
and  prayer  of  such  petition  immediately  before  the  day  of  hearing,  and  stating 
when  and  where  the  same  will  be  heard.     (April  23,  1891,  88  v.  336.) 


§  3254-2.  HOW  RE-ISSUE  EFFECTED.— If  the  probate  court,  upon  the  hearing, 
find  that  the  foregoing  provisions  have  been  complied  with,  and  that  such  described 
certificate  has  been  lost  or  destroyed,  and  that  such  petitioner  at  that  time  was  and  is 
the  owner  thereof,  an  order  shall  be  made  that  such  corporation  issue  and  deliver  a 
new  certificate  of  stock  to  such  petitioner  for  the  original  amount  and  kind  of  stock, 
and  in  case,  at  the  time  of  such  loss  or  destruction  of  such  original  certificate,  the  cer- 
tificate was  pledged  to  any  one,  and  the  pledgee  yet  has  a  claim  against  the  same, 
then  such  order  shall  direct  that  such  new  certificate  shall  be  delivered  to  such 
pledgee  on  such  terms  as  the  court  may  direct,  and  the  corporation  shall  comply  with 
said  orders,  and  shall  in  no  wise  be  prejudiced  by  complying  with  said  orders,  or  by 
paying  dividends  on  such  new  certificate,  so  long  as  it  is  not  made  known  to  it  that 
such  original  certificate  is  in  existence  and  owned  by  some  person  other  than  said 


(  rENERAL   (  lORPORATION    LAW. 


147 


Stock  Certificates,  etc.,  $  3255. 


petitioner;  and  all  rights  and  liabilities  attaching  to  said  original  certificate  shall 
attach  to  said  re-issued  certificate,  while  in  force,  but  upon  the  production  of  the 
original  certificate  to  such  corporation  by  the  owner  or  pledgee,  such  re-issued  certifi- 
cate shall  be  cancelled  and  surrendered,  and  be  void,  and  executors  and  administra- 
tors, on  behalf  of  estates  of  deceased  owners  of  any  such  lost  or  destroyed  certificates 
of  stock,  shall  be  entitled  to  proceed  under  this  act  and  have  all  the  rights  and  bene- 
fits thereof.     (April  23,  1891,  88  v.  336.) 


Rights   of   original   holders. 

The  issuing  of  certificates  under  a  by-law 
providing  for  the  issue  of  certificates  in  place 
of  such  as  may  have  been  lost  or  destroyed, 
does  not  affect  the  liability  of  the  company  to 
the  holder  of  the  original  certificate.  The  ob- 
ject of  the  by-law  is  to  enable  persons  whose 
certificates  appear  to  have  been  lust  or  de- 
stroyed to  obtain  others  on  indemnifying  the 
company  against  loss  in  case  other  parties 
should  assert  rights  against  the  company 
under  the  original  certificates,  but  it  does  not 
affect  the  rights  of  such  original  holders. — 
Cleveland,  etc.,  R.  R.  Co.  v.  Robbins,  35  Oh. 
St.  483    (1880). 

Same  subject. 

A  company  issuing  new  certificates  for 
shares,  of  which  the  certificates  are  outstand- 
ing, is  liable  to  the  holders  of  such  original 
certificates  either  to  replace  their  stock  or  ac- 
count for  its  value. —  Cleveland,  etc.,  R.  R. 
Co.  v.  Robbins,  35  Oh.  St.  483   (1880). 

Same   subject  —  dividends. 

Where  stock  is  transferred,  but  not  entered 
on  the  books  of  the  company,  and  thereafter 

§  3255.  PAID-UP  STOCK  IS  PERSONAL  PROPERTY.—  Shares  of  stock  in  any 
company  shall  be  personal  property,  and  when  fully  paid  up  shall  be  subject  to  levy 
and  sale  upon  execution  against  the  owner.     (May  1,  1852,  50  v.  274,  §  5.) 


the  transferrer,  representing  the  certificates 
to  be  lost,  obtains  new  certificates,  the  com- 
pany is  nut  liable  t<>  the  transferee  for  the 
dividends  declared  and  paid,  foi  it  was  «- n t i - 
tied  to  pay  the  dividends  to  the  persons  ap- 
pearing as  stockholders  <>n  it-  boo! 
Cleveland,  etc.,  R.  R.  Co.  v.  Robbins,  35  Oh. 
St.  483    (1880). 

Remedy. 

Upon  proof  of  the  loss  of  his  certificates, 
and  upon  giving  bond  to  indemnify  the  com- 
pany against  loss  by  the  original  stock  turn- 
ing up  in  the  hands  of  an  innocent  holder,  the 
owner  is  entitled  to  peremptory  writ  of  man- 
damus to  compel  the  issuance  of  a  new  cer- 
tificate.—  Hof  v.  Western  German  Bank,  ti  W. 
L.  B.  665,  697   (1881). 

■When  company  loses  stock. 

When  stock  belonging  to  the  corporation  or 
in  its  possession  is  lost,  no  bond  is  required 
prior  to  reissue. —  See  Farmers'  Bank  v.  Die- 
bold  Safe,  etc.,  Co.,  47  W.  L.  B.  585  (1902). 


■What   certificate   represents. 

A  certificate  of  stock  in  a  private  corpora- 
tion evidences  the  equitable  interest  the  owner 
of  such  stock  has  in  the  corporate  property, 
and  fixes  the  proportion  of  any  and  all  divi- 
dends to  which  he  is  entitled,  and  which  are 
made  while  he  is  the  owner  of  such  certificate, 
the  legal  title  to  it  being  in  the  corporation 
until  divided  among  shareholders. —  Marble 
v.  Van  Wert  Nat.  Bank.  .3  O.  C.  C.  464 
(1888)  ;  s.  c,  2  C.  D.  265:  Lee  v.  Sturges,  46 
Oh.  St.  153  (1889).  See  State  ex  re',  v. 
Jones.  51  Oh.  St.  492,  510  (1894);  State  v. 
Franklin  Bank,  10  Oh.  91,  98   (1840). 

Power     of     stockholder     to     dispose     of 
stock. 

In  the  absence  of  any  law  on  the  subject, 
and  treated  simply  as  property,  no  reason  is 
apparent  for  limiting  the  power  of  disposition 
over  corporate  stock  within  narrower  bounds 
than  those  pertaining  to  other  species  of  prop- 
erty. —  See  Peter  v.  Union  Mfg.  Co.,  56  Oh. 
St.  181,  207   (1897). 

Shares  are  personal  property. 

Shares  in  a  railroad  company  are  personal 
property,  and  the  widow. of  an  owner  is  not 


entitled   to   dower  therein. 
1  Oh.  St.  350  (1853). 


Johns   v.   Johns, 


Presumption  of  gift  of  stock. 
Where  a  person  purchases  9tock  and  | 

the  title  in  the  name  of  a   meml  er  of  his 
family,  the  presumption  is  that  the  stock  was 
intended   a-  a   gift    or  advancement,  but   this 
presumption  may  he  rebutted.— Creed  v.  Lan- 
caster Bank.   1   Oh.  St.   1      185 

General    assignment    for    creditors    in- 
cludes stocks. 

An  assignment  professing  to  convey  all  the 
real  and  personal  estate,  effects  and  credits  of 
the  assignor  includes  stocks. —  Haldeman  v. 
Hillsborough,  etc.,  R.  R.  Co.,  2  Handy,  101 
(1855). 

Borrowed   stock. 

When  by  the  terms  of  a  contract  borrowed 
stock  is  to  1k»  returned  on  demand,  it  is  meant 
that  an  equal  number  of  shares  of  stock  of  the 
same  company  shall  be  returned,  and  no  cause 
of  action  accrues  until  demand  is  made.  See 
trenerallv  as  to  rights  of  parties. —  Fosdick  v. 
Greene,  *27  Oh.  St.  485  (1875). 


148 


Private  Corporations  in  Ohio. 


Stock  Certificates,  etc.,   §  3255. 


Consideration    of    contract    for    sale    of 

An'ajn-eement  to  transfer  the  stork  of  a  cor- 
poration, whether  solvent  or  insolvent  im- 
ports that  the  stock  is  of  some  value,  and  for 
the  purpose  of  making  a  binding  contract  it  is 
„„t  important  how  valuable.- \  an  Arsdale 
v.  Brown,  18  0.  C.  C.  52  (1896);  s.  c,  9  C.  D. 
488. 

Bequest  of  stock.  . 

\n  unconditional  benueat  of  dividends  is  a 
bequest  of  the  stock  itself.— Muskingum 
Turnpike  Co.  v.  Ward,  13  Oh.  120  (1844;. 

Power  to   exchange. 

Tower  to  sell  stock  does  not  include  power 
to  exchange  the  same.—  Cleveland  v.  Bank  of 
Ohio,   16  Oh.  St.  236    (1865). 

Illegal  sale  of  stock. 

Where  the  purpose  of  the  purchaser  of  the 
stock  is  illegal  the  sale  is  illegal  and  void.— 
Newark  v.  Elliott,  5  Oh.  St.  113   (1855). 

Evidence  as  to  sale  of  stock. 

A  witness  may  testify  that  he  sold  shares  of 
stock  and  delivered  the  certificates  thereof  to 
a  person  named  without  producing  the  certifi- 
cates for  inspection. —  Cincinnati,  etc.,  Ry. 
Co.  v.  Rawson,  16  W.  L.  B.  423    (1886). 

Action  on  contract  for  sale  of  stock. 

An  action  on  a  contract  for  the  sale  of  stock 
is  not  necessary  for  the  plaintiff  to  prove  an 
actual  transfer  of  the  stock  or  the  execution 
of  a  power  of  attorney;  but  that  it  is  suffi- 
cient to  prove  an  offer  to  transfer  with  the 
ability  to  perform. —  Hager  v.  Reed,  11  Oh. 
St.   626   (1860). 

Contract    of    sale  —  rights   when    vendee 
refuses  performance. 

In  a  contract  for  the  sale  of  stock  on  re- 
fusal of  the  vendee  to  accept  the  stock,  the 
vendor  may  sell  the  stock  for  the  best  obtain- 
able price/and  if  the  proceeds  of  such  sale  are 
less  than  the  amount  named  in  such  contract, 
together  with  the  expense  of  sale,  he  may  re- 
cover of  the  vendee  such  difference. — Ashley 
v.  Walker.  15  0.  C.  C.  660  (1898);  s.  c,  8  C. 
D.  285. 


Company    lien     on     stock    for     debt     of 
holder. 

Where  there  is  a  custom  between  brokers 
and  bankers  thai,  on  application  of  a  broker, 
a  bank  will  certify  as  to  whether  it  has  any 
lien  on  certain  of  its  stock  by  reason  of  the 
holder  thereof  being  indebted  to  it,  a  bank,  by 
being  asked  by  a  broker  to  give  such  a  certifi- 
cate, is  1  hereby  put  on  inquiry,  and  charged 
with  notice,  as  much  as  though  told  that  a 
loan  for  a  certain  amount  had  been  or  was  to 
be  made  to  the  holder  of  the  stock  by  a  certain 
a.-  Covington  Bank  v.  Commercial 
Bank,  65  Fed.  547    (1895). 


Same  subject. 

A  corporation  may,  by  express  stipulation 
in  a  certificate  of  stock  by  it  issued,  reserve  a 
valid  lien  upon  the  stock  to  secure  the  debts  of 
the  holder  to  it:  and  such  lien  may  be  as- 
serted against  a  transferee  who  receives  the 
stock  before,  but  does  not  present  it  for  trans- 
fer on  the  stock-book  of  the  company  until 
after  the  original  holder  becomes  indebted  to 
the  bank.— Stafford  V.  Produce  Exchange 
Banking  Co.,  61  Oh.  St.  160,  169   (1899). 

Interest  held  by  pledgee. 

As  between  the  pledgor  and  the  pledgee  of 
stock,  the  pledgee  holds  neither  the  equitable 
nor  the  legal  title,  but  only  a  special  property. 
—  Krebs  v.  Forbriger,  21  W.  L.  B.  313 
(18S9).  See  Henkle  v.  Salem  Mfg.  Co.,  39  Oh. 
St.  547   (1883). 

Rights  and  duty  of  pledgee. 

Where  stocks  are  transferred  as  collateral 
security,  with  a  power  to  the  creditor  to  sell 
the  same  at  private  sale  or  auction,  he  may, 
when  the  debt  becomes  due,  dispose  of  the 
same,  after  demand  of  payment  and  notice  of 
the  time  and  place  of  sale  to  the  debtor;  but 
the  sale  must  be  conducted  in  perfect  good 
faith:  the  bailee  is  the  trustee  of  the  bailor, 
and  his  conduct  will  be  carefully  examined  by 
the  court.  If  the  sale  has  not  been  made  in 
the  usual  mode,  but  at  short  notice,  or  with- 
out notice,  it  will  be  declared  invalid. —  Bates 
v.  Wiles,  1  Handy,  532  (1855).  See  Lee  v.  Citi- 
zens, etc.,  Bank.'  2  C.  S.  C.   298    (1872). 

Illegal  sale  —  measure  of  damages. 

The  measure  of  damages,  where  stocks  are 
sold  without  demand  and  notice,  will  be  their 
highest  market  value  any  time  between  the 
day  of  sale  and  the  commencement  of  suit. — 
Bates  v.  Wiles.  1  Handy,  532   (185oi. 

Demand  by  pledgee   before  sale. 

Notice  of  intent  to  sell  pledged  stock  is 
equivalent  to  a  demand  of  payment. —  Har- 
rison v.  Friend,  1  N.  P.  39  (1893);  s.  c,  1 
Dec.  258. 

Sale  by  pledgee  as  against  receiver. 

A  person  holding  stock  as  a  pledge  for  the 
payment  of  a  claim  may  sell  the  stock  as 
against  a  receiver  of  the  assets  of  the  pledgor 
even  though  the  amount  due  is  in  dispute. — 
Harrison  v.  Friend,  1  N.  P.  39  (1893);  s.  c, 
1  Dec.  258. 


Estoppel     of    pledgor     as    against    pur- 
chaser. 

Where  a  pledgor  delivers  to  his  pledgee,  ae 
the  pledge,  a  certificate  for  shares  of  stockin 
a  corporation,  and  indorses  the  same  with 
words  of  assignment  in  blank,  and  with  an 
irrevocable  power  of  attorney  to  transfer  the 
same  on  the  books  of  the  corporation,  also  in 


(  rENERAL    <  ^ORPORAI  [ON     I  -AW. 


149 


Stock  Certificates,  etc.,   §  3255. 


blank,  the  pledgor  is  estopped  to  assert  any 
title  to  said  stock  againsl  an  innocenl  pur 
chaser  for  value   from   the   pledgee,   although 

the  pledgee  in  making  such  sale  has   violated 
the  contract   of  pledge  as  to  term-  of  sale. 
Krebs  v.  Forbriger,  21   \V.  t,.   ];.  :;|:;   (1889). 

Pledge   or   sale    of   stolen    stock. 

Where  a  stock  certificate  is  stolen  and 
pledged,  the  pledgee  acquires  no  title,  though 
it  was  pledged  by  the  apparent  owner. —  See 
Farmers'  Bank  v.  Diebold  Safe,  etc.,  Co.,  47 
W.   L.   B.  585    (1902). 

Pledge   of   fraudulently   acquired    stock. 

Where  stock  fraudulently  obtained  is 
pledged  to  secure  a  pre-existing  indebtedness, 
it  may  be  recovered  by  the  rightful  owner. — 
City  of  Cleveland  v.  Bank,  lb1  Oh.  St.  236,  269 
(1865). 

Pledge  of  stock  —  construction  of  con- 
temporaneous contract  for  condi- 
tional  sale   of   stock  to   pledgee. 

See  Rumsey  v.  Lentz;  59  Oh.  St.  189   i  L898). 

Foreclosure,   trial. 

In  a  suit  to  foreclose  a  lien  upon  stock  in 
an  incorporated  company  created  by  pledge 
and  for  an  order  of  sale,  neither  party  1-  en- 
titled to  a  trial  by  jury. —  Brigel  v.  Creed, 
46  W.  L.  B.  31;  65  Oh.  St.  (1901);  s.  e.,  8 
N.  P.  456. 

Agreement  to  pledge  —  rights  of  parties. 

A  surety  on  a  note  became  such  on  the 
agreement  of  the  principal  to  transfer  to  him 
as  security  a  certificate  of  stock  he  then  held, 
within  a  short  time.  Held,  that  the  suretj 
thereby  acquired  an  equity  in  the  stock  which 
he  could  enforce  against  all  person-  having 
notice.—  Dueber,  etc.,  Co.  v.  Daugherty,  62 
Oh.  St.  589   (1900). 

Sale   on   execution. 

Prior  to  the  passage  of  this  act  stock  could 
not  be  levied  upon  and  sold  on  execution  with- 
out the  consent  of  the  owner,  and  if.  notwith- 
standing, a  sale  was  made  on  execution,  it 
would  only  effect  an  equitable  assignmenl  of 
the  creditor's  rights. —  Lee  v.  Citizen-'  Nat. 
Bank,  2  C.  S.  C.  298   (1872). 

Stock  may  be  reached  hy  creditor's  bill. 

See  §  5464. 

Creditor's  hill  —  motive. 

That  a  creditor  who  seeks  to  reach  the  stock 
of  his  debtor  in  a  corporation  is  induced  to  do 
so  by  other  stockholders,  with  whom  he  has 
made  plans  for  future  management  of  the  cor- 
poration, is  no  reason  for  denying  him  the 
remedy  of  a  creditor's  bill. —  McMullen  v. 
Ritchie,  64  Fed.  253  (1894);  s.  c,  8  0.  F.  D. 
314. 


Situs  of  stock. 

For  i  he  [mi  pose  of  seizure  and  ibjecl  on  t  i 
legal  process,  the  -it  u  imicile 

of  I  he  coi  poral  ion.     Nat  ional   Bank    \ .    Lake 
Shore,  etc..    |;V.   Co.,   21    oh.   St.   221    i  1-71  |  : 
Ashley   v.  Quintard,  90  Fed.   -I   (18fl 
10  0.    F.    I).   365. 

Attachment  of  stock. 

The  interesl  of  a  b!  ocl  bolder  in  t  he  pi  i 
of  a  private  corporation  represented  bj  certifi- 
cates of  stock,  registered  in  hi-  name, 
which  he  i-  the  equitable  owner,  may  be 
reached  bj  garnishment  process  served  upon 
the  corporation.  Norton  \.  Norton,  43  oh. 
St.  509  i  L885)  ;  National  Bank  v,  Lai  ••  Shore, 
etc.,  Ilv.  Co.,  21  oh.  St.  221  i  L871).  3e  Prout 
v.  Post,  12  Dec.  141  I  L900). 

Attachment  of  stock  by   corporation. 
A  corporation  may   by  garnishment   process 

served  upon  it-elf  subject   the  stock  of  one  of 
it-  stockholders  to  the  payment  of  debts  to  it. 
.\nii,,n  \.  Norton,   13  Oh.  St.  509  (18S 

Attachment  of  pledged  stock. 

Where  stock  that  ha-  been  pledged  i  =  at- 
tached, only  the  surplus  alter  1  he  payment  of 
the  debt  to  the  pledgee  i-  reached  by  the  at- 
tachment, and  if  the  pledgee  doe-  m 
his  righl  to  -ell.  the  court  may  order  a  -ale 
and  distribution  of  the  proceeds. —  Norton  v. 
Norton,  43  Oh.  St.  509  (1885 

Attachment  of  dividends. 

When   stock    in  a    corporation   i-  attached, 
dividend-    made    hy    the    corporation    and    le- 
maining  in   its  hand-  after  process   in   atl 
mem    has   been   served,    follow   the   Btock, 
are  subject   to  the  same  order  of  distribution. 
—  Norton  v.   Norton.  43  Oh.  St.  509      18J 

Interest  reached  hy  attachment. 

Where  the  debtor  has  assigned  and  trans- 
fered  stock  appearing  in  hi-  name  on  the  cor- 
porate 1 ks,  an  attachment  only  reaches  his 

interest,  though  the  transferee  ha-  made  no 
attempt  to  obtain  legal  title. —  Haldeman  v. 
Billsborough,  etc..  R.  R.  Co.,  2  Handy.  101 
(1855).  See  Prout  v.  Post,  12  Dee.  HI    (19 

Attachment   of   stock   in   foreign   corpo- 
ration. 

Shares    of    stock    in    a    foreign    corporation 

cannot  he  attached  by  levying  the  writ  upon 
the  certificate  in  the  hands  of  a  residenl  of 
Ohio,  although  owned  by  a  nonresident.— 
Simmons  Hardware  (  ".  \.  Stokes,  16  0.  <  C. 
145   (1898)  :   -.  c,   -  C.   1).  431. 

Attachment    of   stock  in   foreign   corpo- 
ration. 

Though  the  Ohio  statutes  authorize  the  at- 
tachment of  stocks  and  interests  in  -tocks. 
and  permit  the  garnishment  of  a  foreign  cor- 
poration doing  business  in  the  state  in  actions 
against    nonresident   defendants,   and  also  re- 


150 


Private  Corporations  in  Ohio. 


Power  to  borrow  money,  etc.,  §  3256. 


quire  a  corporation  garnishee  to  make  dis- 
closure  of  any  stock  held  therein  for  the 
benefit  of  tne  defendant,  such  statutes  pre- 
suppose  that  the  debts  or  property  to  be  sub- 
jected, and  to  which  the  disclosures  relate,  are 
within  the  dominion  of  the  state,  and  do  not 
bring  within  such  dominion  shares  of  stock  in 
a  foreign  corporation  whether  the  corporation 
as  garnishee  makes  disclosure  of  their  owner- 
ship by  defendant  or  refuses  to  make  such 
disclosure.— Ashley  v.  Quintard,  90  Fed,  84 
I  L898);   s.  c,  10  O.  F.  D.  305. 


Is    stock    not    fully    paid    up    subject    to 
execution? 

As  the  right  to  levy  on  and  sell  stock  is 
purely  statutory,  it  would  seem  that  stock  not 
fully  paid  up  could  only  be  reached  by  a  cred- 
itors bill. 

Right  of  stockholder  to  prosecute  error 
to   judgment   against   corporation. 

See  Dunbar  v.  American  Casket  Co.,  19 . 0. 
C.  C.  585   (1900). 

Appeal  by  stockholder. 

See  Henry  v.  Jeanes,  47  Oh.  St.  116  (1890)  ; 
s.  c,  48  Oh.   St.  443. 


§  3256.  POWER  TO  BORROW  MONEY.—  A  corporation  may  borrow  money,  not 
exceeding  the  amount  of  its  capital  stock,  and  issue  its  notes  or  coupon  or  registered 
bonds  therefor,  bearing  any  rate  of  interest  authorized  by  law,  and  may  secure  the 
payment  of  the  same  by  a  mortgage  of  its  real  or  personal  property,  or  both;*  and  a 
private  corporation  may  purchase,  or  otherwise  acquire,  and  hold  shares  of  stock  in 
other  kindred  but  not  competing  private  corporations,  whether  domestic  or  foreign, 
but  this  shall  not  authorize  the  formation  of  any  trust  or  combination  for  the  pur- 
pose of  restricting  trade  or  competition.  (May  6,  1902,  95  v.  290;  April  15,  1902, 
95  v.  151;  R.  S.   1880.) 


Note.—  The  act  of  May  6th  has  no  repeal- 
ing clause.  The  act  of  April  15th  repeals 
original  section  3256.  The  most  important 
variation  between  the  two  is  the  addition  of 
the  matter  after  the  *  in  the  act  of  May  6th. 

General   power   to    borrow. 

When  not  prohibited,  a  corporation  may 
borrow  money  to  carry  on  the  objects  of  its 
creation,  and  it  may  evidence  and  secure  the 
loan  by  appropriate  instruments. —  Larwell  v. 
Banover,  etc..  Society,  40  Oh.  St.  274,  282 
(1883);  Hays  v.  Galion  Gas  Co.,  29  Oh.  St. 
:;:?(>  (1876);*  Raymond  v.  Spring  Grove,  etc.. 
Ry.  Co.,  21  W.  L.  B.  103  (1889)  ;  Burt  v.  Rat- 
tl'e.  31  Oh.  St.  116  (1876);  Bosche  v.  Toledo 
Display  Horse  Co.,  14  0.  C.  C.  2S9  (1897); 
s.  c,  1  C.  D.  374.     See  notes  to  §  3239. 

Defense   of  ultra  vires. 

Where  a  corporation  in  the  exercise  of  ap- 
parent power  to  borrow  secures  from  a  person 
a  loan  of  money,  on  the  faith  that  the  power 
exists,  it  will  not  be  permitted  to  deny  its 
power  to  escape  payment. —  Havs  v.  Galion 
Gas  Co..  29  Oh.  St.  330  (1876). 

Mortgage     of     corporate     property     by 

stockholders. 

Where  through  a  mistake  a  mortgage  on 
the  property  of  a  corporation  is  executed  by 
it-  stockholders  instead  of  by  the  corporation, 
it  will  operate  as  an  equitable  prior  mortgage 
as  againsl  a  subsequent  mortgage  expressly 
made  subjeel  to  it.  and  as  against  subsequent 
judgment  creditors. —  Bundy  v.  Iron  Co.,  38 
Oh.   St.  300    (1882). 

Execution  in  foreign  state. 

An  Ohio  corporation  can  execute  in  another 
state    a    valid    mortgage    on    its    property    in 


Ohio,  notwithstanding  it  is  doing  business  in 
such  other  state. —  Lattimer  v.  Mosaic  Glass 
Co.,  13  O.  C.  C.  163  (1896);  s.  c,  7  C.  D.  430. 

Loan  in  excess  of  capital  stock. 

A  mortgage  given  to  secure  a  debt  in  excess 
of  the  capital  stock  of  a  company  is  not  void 
as  to  subsequent  creditors  with  notice,  if  not 
objected  to  by  the  corporation. —  Central 
Trust  Co.  v.  Columbus,  etc.,  Ry.  Co.,  87  Fed, 
S15  (1898);  s.  c,  10  O.  F.  D.  328.  See  Ray- 
mond v.  Spring  Grove,  etc.,  Ry.  Co.,  21  W.  L. 
B.  103   (1889). 

Power  of  selling  committee. 

A  committee  duly  empowered  by  a  corpora- 
tion to  sell  an  issue  of  bonds  have  power  to 
employ  a  broker  to  sell  such  bonds. —  East 
Cleveland  Ry.  Co.  v.  Everett,  15  O.  C.  C.  181 
(1897)  ;  s.  c,  8  C.  D.  210.  See  East  Cleveland, 
etc..  Ry.  Co.  v.  Everett,  19  O.  C.  C.  205  / 
(1900). 

Compensation  of  broker. 

In  the  absence  of  special  agreement  a 
broker  may  recover  the  reasonable  value  of  his 
services  in  selling  bonds. —  East  Cleveland 
Ry.  Co.  v.  Everett,  15  O.  C.  C.  181  (1897); 
s.  c,  8  C.  D.  210. 

Sale  below  par. 

Where  the  board  of  directors  have  not  au- 
thorized the  selling  committee  to  sell  for  less 
than  par,  such  committee  has  no  authority  to 
employ  a  broker  to  sell  for  less  than  par- 
East  Cleveland  Ry.  Co.  v.  Everett,  15  O.  C.  C. 
181  (1897);  s.  c.,*8  C.  D.  210. 

Duty  of  creditor  to  inquire. 

A  person  dealing  with  a  corporation  should 
know  that  it  has  the  legal  power  to  make  the 


General  Corporation  Law. 


151 


Mortgages,  Bonds,  etc.,  S*  3256a,  3257. 


loan  and  to  execute  the  mortgage,  bul  be  is 
not  bound  to  inquire  whether  the  board  <>f 
directors  has  had  a  meeting  and  passed  a 
foimal  resolution  authorizing  the  loan  and 
mortgage,  or  that  the  directors  are  legally 
elected,  or  whether  the  directors  took  an  ac- 
tive interesl  in  the  business  of  the  corooration 
or  not. —  Bosche  v.  Toledo  Display  Eorse  Co., 
14  ().  ('.  ('.  289   (  1897)  :  s.  c,  7  C.  D.  374. 

Power   of  officers. 

A  chattel  mortgage  executed  by  the  presi- 
dent and  secretary  of  a  corporation,  who  arc 
also  members  of  the  board  of  directors,  to  se- 
cure a  debt  of  the  corporation,  although  exe- 
cuted without  the  knowledge  of  the  other 
directors  at  the  lime,  is  valid  in  the  hands  of 
the  mortgagee,  who  is  no1  aware  of  the  fact. 
—  Bosclm  v.  Toledo  Display  Horse  Co.,  14  O. 
C.  C.  289    (1S97);  s.  c,  7  C.  D.  374. 

See,  as  to  power  of  officers  io  execute  in- 
struments, notes  to  §  3247. 

Power  of  president  to  sell  bonds. 

See  East  Cleveland,  etc.,  Ry.  Co.  v.  Everett, 
19  O.  C.  C.  205  (1900). 

Assent  of  stockholders. 

If  the  assent  of  two-thirds  of  the  stockhold- 
ers is  necessary  to  the  validity  of  a  mortgage 
by  the  law  of  the  state  creating  a  corporation, 
which  assent  is  to  be  filed  with  the  clerk  of 
the  county  the  property  is  in,  such  law  applies 
to  a  mortgage  of  land  in  this  state,  and  the 
assent  is  to  be  filed  with  the  county  recorder. 
A  guaranty  of  payment  of  a  mortgage  by  two- 
thirds  of  'the  stockholders  is  a  substantial 
assent.— West  v.  Klotz,  37  Oh.  St.  420,  428 
(1881). 

Purchase   by  director  on  foreclosure. 

Where  the  property  of  a  corporation  was 
sold  under  foreclosure  decree  to  a  director  of 
the  corporation  for  much  less  than  its  real 
value,  the  sale  will  be  set  aside  on  the  motion 
of  a  bondholder  offering  adequate  security 
that  he  would  bid  a  much  larger  sum  on  the 


property.      Secor  \.  Maumee  Rolling  Mi' 

I   \.  I'.'  100  (  1894)  :  -,  '•.,  i   Dec. 

Duty  of  trustee  in  mortgage. 

A    trustee   holding    bonds    for    i    coi 
musi    ca  rrj    oul    In-    trusl    "i    Burrendei    1 he 
bond-,     lb-  cannol  use  the  bonds  to  pay  debts 
of  t  In"  company  to  bira.     '  freem  ille  '        (  o 

v.   Reis,  ;.i  Oh.  St.  549   I  I 

Right   of  trustee  to  personal   judgment 

on   guaranty. 

A  i  rustee  of  a  mortgage  ha  -  no  It 
ity  as  such  after  foreclosure  and  Bale  of  the 
mortgaged  property  to  maintain  an  action  "n 
behalf  of  the  bondholders  for  a  personal  judg- 
incut  agains!  one  who  had  promised  the  cor- 
poration to  assume  the  bonds.  -Conner  v. 
Bramble,  6  N.  P.  L95  (1899);  s.  c,  9  Dec.  516. 

Acceptance   of  mortgage. 

A  mortgage  by  a  corporation  need  not  be 
expressly  accepted,  but  acceptance  may  be 
implied  from  circumstances,  and  a  part  of  the 
mortgagees  may  accept,  although  others  refuse 
to  do  so.— Bundy  v.  Iron  Co.,  38  Oh.  St.  300 
(1882). 

Mortgage  by  college. 

See  President,  etc.,  of  Medical  College  v. 
Zeigler,  17  Oh.  St.  52  (18GG). 

Mortgages  by  railroad  companies. 
See  §  3287  et  seq. 

Mortgages    by    Ohio    river    bridge    com- 
panies. 

See  §  3548a. 

Deficiency  judgment,  when  corporation 
liable. 

Where  a  loan  upon  a  real  estate  mortgage  is 
obtained  by  an  individual,  for  the  benefit  of  a 
corporation,  and  on  foreclosure  the  proceeds  of 
the  sale  are  not  sufficient  to  pay  the  loan,  the 
corporation  does  not  become  liable. —  See  De 
Camp  v.  Levoy,  19  O.  C.  C.  335  (1900). 


§  3256a.  HOW  CERTAIN  CORPORATE  MORTGAGES  RECORDED.—  Such 
mortgage  of  real  and  personal  property  when  heretofore  or  hereafter  made  by  a  com- 
pany organized  to  operate  a  line  or  lines  of  telegraph,  telephone,  district  telegraph 
messenger  service,  or  for  the  purpose  of  supplying  gas  or  electricity  [or  hot  water] 
for  lighting,  fuel  or  other  purposes,  or  hot  water,  or  steam,  for  heating  or  fuel  pur- 
poses, shall  be  held  to  be  duly  recorded  if  the  same  is  recorded  in  the  office  of  the 
recorder  of  deeds  in  the  county  and  each  of  the  counties  in  which  the  real  or  personal 
property  intended  to  be  mortgaged  is  situate  or  employed;  and  the  mortgage  so 
recorded  shall  be  held  to  be  a  good  and  sufficient  lien  from  the  date  of  the  filing  of 
the  same  for  record  in  each  county  where  it  is  recorded  as  -well  upon  the  personal  as 
the  real  property  of  the  company.     (May  6,  1902,  95  v.  366.) 

§  3257.  MAY  ISSUE  CONVERTIBLE  BONDS,  VOTE  OF  DIRECTORS.—  Upon 
the  written  assent  of  not  less  than  three-fourths  of  the  stockholders,  representing  at 
least  three-fourths  of  the  capital  stock  of  the  company  actually  paid,  any  company 


152 


Private  Corporations  in  Ohio. 


Stockholders'  liability,  etc.,   §  3258. 


may  borrow  money  not  exceeding  one-half  of  the  capital  stock  actually  paid  in,  on 
such  security,  by  way  of  mortgage,  or  otherwise,  as  may  be  agreed  upon,  and  at  a 
rate  of  interest  not  exceeding  that  allowed  by  law  to  be  contracted  for,  and  may,  in 
the  instruments  evidencing  the  contract,  stipulate  that  the  holders  of  such  instruments 
shall  have  the  right  to  convert  the  amount  borrowed,  or  any  part  thereof,  into  either 
common  or  preferred  stock,  such  stock  having  been  provided  for  by  the  proper  action 
and  certificate  of  the  company;  any  action  of  the  directors  for  borrowing  money, 
issuing  bonds,  or  involving  an  expenditure  of  money  shall  be  by  yea  and  nay  vote, 
and  record  thereof  shall  be  made  showing  the  vote  of  each  director  voting  upon  the 
question.     (March  25,  1870,  67  v.  26,  §§  1,  2,  3,  4.) 


Liability   of   stockholders. 

By  this  section  it  was  not.  intended  to  au- 
thorize the  creation  of  additional  stockhold- 
er-, and  to  exempt  them  from  individual 
liability  to  creditors,  but  to  enable  such  cor- 
porations, upon  the  terms  provided  in  the  act, 
to  borrow  money  and  guarantee  its  repay- 
ment, with  the  option  on  the  part  of  the 
lenders  to  become  stockholders.— Burt  v. 
Rattle,  31  Oh.   St.   116    (1876). 

When  stock  regarded  as  debt. 

Where  a  company,  professing  to  act  under 
the  provisions  of  this  section,  issued  certifi- 
cates of  preferred  stock,  so  called,  certifying 
that  the  corporation  guaranteed  to  holders 
the  payment  of  four  per  cent,  semi-annual 
dividends,  and  the  final  payment  of  the  entire 
amount  at  a  specified  time,  with  the  right  to 
convert  the  preferred  stock  into  common 
stock,  and  the  company  at  the  same  time  exe- 
cuted and  delivered  to  a  trustee  its  bond  and 
mortgage  to  secure  the  holders  of  such  certifi- 
cates. Held,  that  the  holders  of  the  certifi- 
cates did  not  thereby  become  stockholders  of 
the  corporations,  but  its  creditors,  and  that, 
as  such,  they  had  a  lien  upon  the  mortgaged 
property  superior  to  that  of  the  general  cred- 
it' the  corporation  or  of  its  assignees. — 
Burt  v.  Rattle,  31  Oh.  St.  116   (1876). 

See  as  to  increase  of  stock,  §§  3202,  3263. 


Contracts     giving    veto    power    to     pre- 
ferred stock. 

A  contract  of  consolidation  which  prohibits 
the  issuance  of  bonds  without  the  consent  of 
a  majority  in  interest  of  the  preferred  stock- 
holders seems  to  violate  this  section. —  Burke 
v.  Cleveland,  etc.,  Ry.  Co.,  22  W.  L.  B.  11,  16 
(1889). 

Right  to  conversion  fellows  bonds. 

A  stipulation  for  conversion  is  inseparably 
connected  with  the  bond  on  which  it  is  in- 
dorsed, and  is  only  available  to  the  holder  of 
the  bond  so  long  as  he  continues  to  be  such 
holder.  The  holder  of  a  bond  cannot  assign 
to  another  the  right  of  action  for  a  breach  of 
the  stipulation  for  conversion,  and  yet  retain 
the  bond  for  the  benefit  of  himself  and  future 
assigns. —  Dennv  v.  Cleveland,  etc.,  R;.  R.  Co., 
2S  Oh.  St.   108   (1875). 

Action   for    refusal    to    convert    bonds  — 
pleading. 

In  an  action  for  a  refusal  to  convert  bonds, 
the  petition  is  fatally  defective  in  not  aver- 
ring that  the  plaintiffs  were,  and  at  the  com- 
mencement of  the  action  continued  to  be,  the 
holders  of  the  bonds,  for  the  nonconversion 
of  which  they  bring  suit. —  Denny  v.  Cleve- 
land, etc.,  R.  R.  Co.,  28  Oh.  St.  108   (1875).        i 

Power  of  directors. 

See  East  (  leveland,  etc.,  Ry.  Co.  v.  Everett, 
19  0.  C.  C.  205   (1900). 


§  3258.  STOCKHOLDERS  LIABLE  IN  AN  AMOUNT  EQUAL  TO  THEIR 
STOCK. —  The  stockholders  of  a  corporation  who  are  the  holders  of  its  shares  at  a 
time  when  its  debts  and  liabilities  are  enforcible  against  them,  shall  be  deemed  and 
held  liable,  equally  and  ratably,  and  not  one  for  another,  in  addition  of  their  stock, 
in  an  amount  equal  to  the  stock  by  them  so  held,  to  the  creditors  of  the  corporation, 
to  secure  the  payment  of  such  debts  and  liabilities;  and  no  stockholder  who  shall 
transfer  his  stock  in  good  faith,  and  such  transfer  is  made  on  the  books  of  the 
company,  or  on  the  back  of  the  certificate  of  stock  properly  witnessed  or  tendered  for 
transfer  on  the  books  of  the  company  prior  to  the  time  when  such  debts  and  liabilities 
are  so  enforcible,  shall  be  held  to  pay  any  portion  thereof.  (April  29,  1902,  95  v.  312; 
May  1,  1852,  50  v.  296,  §§  78-79;  March  11,  1853,  51  v.  386;  April  17,  1854,  52  v. 
44;  April  12,   1865,  62  v.  134;  March  11,   1874,  69  v.  25;  R.  S.  1880.) 

§  32.-.S.  Old  Law.  -The  stockholders  of  a  \  equal  1o  the  stock  by  them  subscribed,  or  other- 
corporation  which  may  be  hereafter  formed,  I  wise  acquired,  to  the  creditors  of  the  corpora- 
and  such  stockholders  as  are  now  liable  under  I  Hon,  in  secure  the  payment  of  the  debts  and 

former    statutes,    shall    he    deemed    and    held  \  liabilities  of  the  corporation.      [R.   S.     1880.] 
liable,  in  addition  In  their  stork,  in  an  amount 


General  Corporation  Law. 


153 


Stockholders'   liability,   etc.,    §   3258. 


Liability  in  absence  of  statute. 

The  stockholders  in  a  corporation  are  nol 
individually  liable  for  its  debts  unless  thej 
arc  expressly  made  so  by  some  charter  pro 
vision.— Can-  v.  [glehart,  3  Oh.  St.  458  I  L854). 

Nature  of  liability. 

The  liability  on  stock   held   in  severalty   is 

not  joint  but  several,  and  hence  the  judgmenl 
is  not.  joint,  although  for  the  equal  benefit  of 
all  the  creditors. —  Mason  v.  Alexander.  II 
Oh.  St.  318,  333  (1886);  Umsted  v.  Buskirk. 
17  Oh.  St.  113   (1866). 

Nature  of  liability. 

The  liability  of  stockholders  to  pay  the 
debts  of  the  corporation  is  not  a  primary  ob- 
ligation, but  only  a  secondary  and  collateral 
obligation,  enforceable  only  in  case  of  the  in- 
solvency of  the  corporation. —  Swan  v.  Mans- 
field, etc.,  R.  R.  Co.,  3  N".  P.  225  (1896)  :  s.  c, 
5  Dec.  297;  Bronson  v.  Schneider,  4!)  Oh.  St. 
438  (18!)2)  ;  Younglove  v.  Lime  Co.,  49  Oh.  St. 
663,  666  (1892);  Peter  v.  Union  Mfg.  Co..  56 
Oh.  St.  181,  197  (1897):  Falkenback  v.  Pat- 
terson, 43  Oh.  St.  359.  370  (18S5). 

Stock  in  de  facto  corporations. 

Stockholders  in  de  facto  and  de  jure  corpo- 
rations stand  on  the  same  footing  as  respects 
their  liability  to  creditors,  and  such  liability 
is  not  affected  by  a  judgment  of  ouster  againsl 
the  corporation. —  Rowland  v.  Meader  Furni- 
ture Co.,  38  Oh.  St.  269  (1882)  ;  Gaff  v.  Flesher. 
33  Oh.  St.  107  (1877)  ;  Royce  v.  Tvler,  2  0.  C. 
C.  175,  182  (1887);  s.  c,  1  C.  D.  428. 

Corporations  as  stockholders. 

Where  stock  in  an  insolvent  corporation  is 
held  by  another  corporation,  it  is  liable  the 
same  as  an  individual  holder. —  Smith  v. 
Newark,  etc.,  R.  R.  Co.,  8  O.  C.  C.  583  (1894)  ; 
s.  c,  4  C.  D.  356. 

Liability  of  pledgee. 

One  who  holds  shares  of  stock  merely  as 
collateral  security  for  a  debt  without  a  trans- 
fer thereof  to  him  on  the  books  of  the  com- 
pany, having  merely  an  assignment  and  a 
[lower  of  attorney  to  transfer,  is  not  liable  as 
legal  or  equitable  owner  of  the  stock. — 
Henkle  v.  Salem  Mfg.  Co.,  39  Oh.  St.  517 
(1883).  See  Norton  v.  Norton,  43  Oh.  St.  509 
523  (1885);  Biggio  v.  Sandheger,  8  N.  P.  13 
(1900). 

Stock  subscribed  by  infants. 

It  seems  that  an  infant  purchasing  stock 
and  holding  the  same  after  his  majority  and 
after  the  insolvency  of  the  company  is  liable. 
—  Hardman  v.  Cincinnati,  etc.,  Ry.  Co.,  15  W. 
L.  B.  164  (1886). 


Liability  on  preferred  stock. 

Solders    of    prefei  red    Jtocl     are    subject    to 
statutory   liability  equally   with   tin-  common 
stockholders.      R.   R.  ( to.  \.  Smith,   is  I  >h    81 
219  (1891). 


Stock  bought  below  par. 

Where  a   corporation   in  good   faith   Bells  a 
part   of  its   stock    below    par,   and    aftei 
becomes  insolvent,  the  difference  between  the 
discouni   price  and  the  par  value  of  the  stock 
thus  purchased  should  not   be  regarded  .i-  as 
sets    of    the    corporation,    a-    between    those 
stockholders   who   boughl    at    ;i    discouni    and 
those  who  <li<l  noi.     \.,  stockholder  should  be 
permitted  to  assert  the  invalidity  of  such 
without    consenting    thai     it-    purchasers    be 

placed     in     statu    quo    ante.       The    whole 

should   be  assessed   tor  stockholders'  liability, 

and  then  if  any  creditor  i-  not  paid  in  full,  be 
may  collect    s<>   much   on   the  amount   unpaid 

on    the    -lock    -old     at     a    discount     a-    may    be 

necessary    to   satisfy    claims  againsl    tin-   cor 

poration  in  full;  but  only  if  he  became  a  cred- 
itor after  the  issue  of  such  -tock  and  .in  igno 
ranee  of  the  sale  at  a  discount.-  Peter  v. 
Union  Mfg.  Co..  56  oh.  St.  Isl   I  L897). 

Who  are  creditors? 

Whoever  has  a  claim  againsl  a  corporation 
which  falls  within  the  terms  "due-.,  debt-,  or 
liabilities,"  is  a  creditor  of  such  corporation 
within  the  meaning  of  the  section  of  the  con- 
stitution.—  Herrick  v.  Wardwell,  5s  oh.  St. 
294,  309   (1898). 

A  person  holding  a  claim  against  the  com- 
pany for  a  tort  committed  by  it  i-  a  creditor. 
—  Rider  v.  Fritchev.  I!i  Oh.  St.  285  fls'.'_'.: 
s.  c,  :i  ().  ('.  C.  89   i  isssi  :   -.  ,-..  2  C.  I).  251. 

A  stockholder  who  gives  hi-  notes  to  cred- 
itors of  the  corporation  at  it-  request  and 
judgment  is  had  on  them,  i-  a  creditor,  though 
he  has  not  paid. —  Burwell  v.  Hazard  Eame 
Co.,  2  Cleve.  L.  R.  9  (1878). 

Control  of  corporation  over  liability. 

Where  a  stockholder  ha-  a  claim  againsl 
the  corporation  it  cannot  counterclaim  againsl 
him  on  hi-  liability  a-  a  stockholder.  Jung- 
kuntz  v.  West  Liberty  Association,  6  W.  I.. 
B.  42S   (1881). 

A  corporation  ha-  no  power  to  change  an 
obligation  on  which  stockholders'  liability  is 
waived,  into  one  carrying  it.— Hardman  v. 
Cincinnati   Ry.  Co..   18  W.  L.  B.  264    (1887). 

The  security  provided  by  this  section  i-  for 
the  exclusive  benefit  of  tie-  creditors 
which  the  corporate  authorities  have  no  con- 
trol; and  an  attempted  assignment  of  such  lia- 
bility by  the  corporation,  though  for  the  equal 
benelit  of  all  the  creditor-,  i-  inoperative. 
So  an  assignee  or  receiver  of  tin-  corporation 
cannot  bring  a  suit  to  enforce. —  Wright  v. 
McCormack."l7  Oh.  St.  86   (1866);  Umsted  v. 


154 


Private  Corporations  in  Ohio. 


Stockholders'  liability,  etc.,    $  3258. 


:k.  17  Oh.  St.   113   (1866);  White  v.  In- 
.  2  Cleve.  I..   Rep.  362   I  L878).     See  also 

North   Fail-mount   I'..  &  S.  Co.  v.  Ashbrook.  12 

Dec.  lo   (1901). 

Contract    to    release    stockholder's    lia- 
bility is  void. 

\  stockholder  is  liable  for  losses,  notwith- 
standing an  agreement  to  the  contrary  en- 
tered into  at  the  time  he  subscribed  for  his 
stock.-  North  Fairmount,  etc..  Co.  v.  Ash- 
brook. 12  Dee.  10   (1901). 

Guaranty  by  stockholders. 

Where  stockholders  being  indirectly  liable 
for  corporation  debts,  in  consideration  of  in- 
dorsements of  company  paper,  agree  to  pro- 
tecl  such  indorsers  against  loss,  they  assume 
the  relation  of  principal  and  surety  rather 
than  guarantors.— See  fully  as  to  rights  and 
liabilities.  Wise  v.  Miller,  54  Oh.  St.  38S 
i  L887). 

Settlement   agreements    between    stock- 
holders. 

An  agreement  entered  into  by  solvent  share- 
holders of  an  embarrassed  corporation,  that 
they  will  severally  contribute  to  raise  a  fund 
to  pay  the  corporate  liabilities,  creates  a 
valid  obligation;  and  if  the  share  to  be  con- 
tributed by  each  is  not  expressly  fixed  by  the 
terms  of  the  agreement,  each  should  con- 
tribute in  the  proportion  that  the  number  of 
shares  of  -tuck  owned  by  him  bears  to  the 
--hares  held  by  all  the  contributors;  and  if 
one  of  the  stockholders  agrees  to  surrender 
and  cancel,  and  the  other  stockholders  perform 
their  part  of  the  agreement,  they  and  the 
corporation  may  set  up  the  settlement  con- 
tract in  bar  of  a  recovery  in  an  action  brought 
upon  such  note. —  Sterling  Wrench  Co.  v. 
Amstutz,  50  Oh.  St.  484   (1893). 

■Waiver  of  liability. 

The  liability  of  stockholders  can  be  waived 
by  any  creditor. —  Preston  v.  Cincinnati,  etc., 
R.  R.  Co.,  36  Fed.  54  (1888)  ;  s.  c,  6  O.  F.  D. 
127:  Hardman  v.  Cincinnati,  etc..  Ry.  Co..  18 
W.  L.  B.  264  (1887).  See  Raymond  v.  Spring 
Grove,  etc.,  Ry.  Co.,  21  W.  L.  B.  103  (1889); 
Hull  v.  Standard,  etc.,  Co.,  20  O.  C.  C.  533 
(1900). 

■When  liability    attaches. 

At  the  time  the  debt  against  the  corpora- 
lion  is  created  or  the  liability  incurred,  the 
liability  attache-  to  all  the  then  stockholders 
and  to  all  who  may  thereafter  become  stock- 
holder-.     Earpold   v.  Stobart,   16  Oh.  St.  397, 

Kit  |  1889)  :  BrOWIl  V.  Hitchcock.  36  Oh.  St. 
667,  678  (1881);  I  leveland  Gas  Co.  v.  Collins. 
19  0.  C.  c.  -j  17    i  1899). 

When  the  liability  of  a  corporation  is  on  a 
contract,  the  debl  will  be  held  to  have  ac- 
crued and  the  liability  to  have  attached  at 
the  time  of  the  execution  of  the  contract. — 
Herrick  v.  Ward  well.  58  Oh.  St.  204  (1S98). 


Voluntary  payment  by  stockholder. 

Where  a  stockholder  of  an  insolvent  corpo- 
ration voluntarily  pays  the  debts  of  the  cor- 
poration, he  cannot  recover  from  another 
stockholder  who  was  at  the  time  of  such 
payment  solvent  and  within  the  jurisdiction, 
his  pro  rata  share  of  such  indebtedness. — 
Burr  v.  Bates.  3  0.  C.  C.  1  (1887);  s.  c,  1  C. 
D.  1. 

Settlement  notes  given  by  stockholders. 

A  note  given  by  a  stockholder  to  a  creditor 
of  an  insolvent  corporation  with  the  proviso 
that  it  shall  be  a  credit  on  the  maker's  lia- 
bility as  a  stockholder  would  be  without 
meaning,  as  the  proviso  could  not  affect  other 
creditors  unless  it  is  construed  as  a  guarantee 
by  the  creditor  to  hold  the  stockholder  harm- 
less against  any  increase  of  liability  on  ac- 
count of  payment  on  the  note ;  and  a  judg- 
ment on  the  note  must  so  specify.—  Beebe 
v.  Thomas,  2  W.  L.  B.  107  (1877). 

Effect    of     settlement     between    parties 
upon  dissenting  creditor. 

Where  the  stockholders  of  a  company,  in 
full  settlement  of  their  liability,  paid  all  the 
creditors  but  one  a  certain  per  cent,  of  their 
claims,  that  one  creditor  cannot  thereafter 
recover  from  the  stockholders  more  than  he 
would  have  recovered  had  the  suit  been  prose- 
cuted to  a  final  decree  and  the  liability  paid 
in  full  and  divided  pro  rata  among  the  cred- 
itors.— Ryan  v.  Miami,  etc.,  R.  R.  Co.,  16  O. 
C.  C.  530  "(1898) ;  s.  c,  9  C.  D.  401. 

When  right  of  action  accrues. 

Ordinarily,  and  when  a  corporation  has 
property  arid  continues  to  do  business,  a  right 
of  action  accrues  when  a  judgment  has  been 
recovered  against  it  and  execution  has  been 
returned  unsatisfied,  in  part  or  whole. — 
Younglove  v.  Lime  Co.,  49  Oh.  St.  663  (1892)  ; 
Bronson  v.  Schneider,  49  Oh.  St.  438  (1892); 
Barrick  v.  Gifford,  47  Oh.  St.  180  (1890); 
Cowles  v.  Bartell,  3  W.  L.  M.  41  (1860). 

A  right  of  action  does  not  accrue  when  the 
corporation  becomes  insolvent  in  the  sense 
simply  that  its  property  is  insufficient  for  the 
payment  of  its  liabilities. —  Younglove  v. 
Lime  Co.,  49  Oh.  St.  663  (1892):  Bronson 
v.  Schneider,  49  Oh.  St.  438  (1S92)  ;  Barrick  v. 
Gifford.  47  Oh.  St.  180  (1890).  See  Baldwin 
v.  Atwater  Coal  Co...  8  W.  L.  B.  296  (1882); 
Hardman  v.  Cincinnati,  etc.,  Ry.  Co.,  15  W. 
L.  B.  164  (1886). 

The  right  of  action  does  not  accrue  on  the 
appointment  of  a  receiver  merely  to  carry  on 
the  business  or  to  subserve  some  purpose  of 
the  stockholders  or  directors,  and  not  on  ac- 
count of  the  insolvency  of  the  company. — 
Younglove  v.  Lime  Co..  "40  Oh.  St.  663  (1892). 

A  creditor's  right  of  action  is  complete  when 
the  corporation  has  done,  or  suffered  to  be 
done,  any  act  which  would  render  judgment 
anil  process  against  it  impossible  or  of  no 
avail  and  nugatory,  as  where  its  property 
has  been  placed  in   the   hands  of  an  assignee 


General  Corporation  Law. 


155 


Stockholders'  liability,   etc.,   §  3258. 


in  insolvency  or  bankruptcy,  or  bj  the  ap 
pointment  of  a  receiver  or  dissolul  ion  of  i  lie 
corporation  or  by  some  other  legal  proceed 
ing,  its  property  has  been  put  in  proce  oi 
application  to  the  paymenl  of  its  debts,  so 
that  creditors  may  proceed  against  the  stock- 
holders withoul  first  putting  their  claims  in 
judgmenl  against  the  corporation.  Young 
love  v.  Lime  Co.,  49  Oh.  St.  663  (1892)  ; 
Bronson  v.  Schneider,  lit  Oh.  St.  438  (1892)  ; 
Barrick  v.  Gifford,  47  Oh.  St.  L80  (1890);  King 
v.  Armstrong,  50  Oh.  St.  222,  238  (1893); 
Peter  v.  Farrell  Foundry,  etc.,  Co.,  53  Oh.  St. 
534,  557  (1895);  Morgan  v.  Lewis,  46  Oh.  St. 
1  (1888);  Hardman  v.  Cincinnati,  etc.,  By. 
Co.,  15  W.  L.  B.  164  (1886) ;  Turnbull  v.  Pbme- 
roy  Salt  Co.,  24  W.  I..  B.  133  (1890).  See  De 
Camp  v.  Levoy,  19  0.  C.  C.  335    (1900). 

When  the  assets  of  the  company  are  beyond 
the  reach  of  process,  as  in  the  hands  of  an 
assignee  or  receiver  for  insolvency,  creditors 
need  not  await  final  settlement  or  distribu- 
tion by  such  officers,  but  may  at  once  com- 
mence proceedings. —  See  Younglove  v.  Lime 
Co,  49  Oh.  St.  663  (1892);  Turnbull  v. 
Pomeroy  Salt  Co.,  24  W.  L.  B.  133   (1890). 

Quere. 

Will  a  right  of  action  accrue  when,  although 
denying  in  good  faith  its  insolvency,  a  corpo- 
ration has  commenced  to  wind  up  its  affairs 
under  §  5087. —  See  Fairmount,  etc.,  Co.  v. 
Eehn,  6  N.  P.  185,  189  (1899) ;  s.  c,  8  Dec  594. 

When   action   accrues   against  executor. 

See  Bevitt  v.  Diehl,  12  Dec.  383  (1901)  ;  s.  c, 
12  Dec.  315. 

Transfer  of  stock. 

A  stockholder  cannot,  by  a  sale  and  trans- 
fer of  his  stock,  defeat  the  ultimate  right  of 
existing  creditors  to  proceed  against  him  on 
account  of  such  shares,  if  a  resort  to  his  lia- 
bility becomes  necessary  for  their  protection. 
—  Peter  v.  Union  Mfg.  Co.,  56  Oh.  St.  181, 
204  (1897)  ;  Rider  v.  Fritchey,  49  Oh.  St.  285, 
295  (1892);  Brown  v.  Hitchcock,  36  Oh.  St. 
667,  G80   (1881). 

A  stockholder  is  not  liable  for  debts  created 
after  a  bona  fide  transfer  of  stock. —  Peter  v. 
Union  Mfg.  Co.,  56  Oh.  St.  1S1  (1897);  Taylor 
v.  West  Liberty  Wheel  Co.,  9  Am.  L.  Rec.  28 
(1880). 

A  stockholder's  liability  as  to  future  cred- 
itors is  cut  off  by  a  transfer  of  his  stock  on 
the  books  of  the 'company,  although  the  stock 
was  sold  or  given  away  to  an  insolvent  person 
for  the  purpose  of  escaping  liability,  if  the 
sale  or  gift  is  made  in  good  faith  and  is  ab- 
solute. 

If  the  transaction  was  not  bona  fide,  but 
was  a  mere  ruse  or  device  by  which  he  sought 
to  hold  himself  out  as  divested  of  his  owner- 
ship, while  by  some  understanding  or  agree- 
ment, expressed  or  implied,  the  transferee 
held  it  for  him.  he  would  remain  an  equitable 
stockholder  and  so  liable.— Peter  v.  Union 
Mfg.  Co.,  56  Oh.  St.  181   (1897). 


A   transfi 
I, rui-    void,    due-    not    affect    the    liability    <>f 
the     ov  ner.      Muskii     ■■■  1  m  npike 

Co.  v.  Ward,  L3  Oh.  120  (1844). 

A   transfer  <>f  stocl     in    which   th 
i  he  company   are  used  in  '  tie  purchase  >-  void, 
and   the   transferrers   remain   liable   aa    stock- 
holders.     W  illis  \.  Reed,  5  W.  L.  B.  79  I 

Liability  of  assignees. 

Assignees  of  shares  ol  stock  in  a  corporation 
are  liable  to  the  creditors  by  reason  of  their 
purchase  of  the  stock,  ami  they  also  -land  in 
the   relation    <>f   indemnitors   to   tin-  assi 
as  to  the  liability  of  the  latter  on  debte 

d   w  Kile  they   held   I  Wheeler 

v    Faurot,  37  Oh.  St.  26,  28  I  1881  I  ;   Brown  v. 
Hitchcock,  36  Oh.  St.  667,  680   (1881  l. 

Liability  of  assignors. 

A   stockholder   who  has  in  good    faith    -old 
and  assigned  hi-  Btock  to  one  who  becon 
nonresident    or  insolvent  is  liable  to  creditors 
of  the   corporation    tor    such    portion   only   "t 
the  debts  existing  while  he  held  the  stock  and 
remaining  due   (not.  in  excess  of  the  amount 
of   stock  assigned),  as  will    he  equal    ' 
proportion    which   the   capital    -tori,    assigned 
by  him  hears  to  the  entire  capital  stock  held 
by    solvenl    stockholders    liable    For    the 
debts  who  are  within  the  jurisdiction,  to  be 
ascertained  at  the  time  judgmenl   is  rei 
—  Harpold  v.  Stobart,  46  Oh.  St.  397   (1889); 
Brown    v.    Hitchcock,    36    oh.    St.    667,    681 
(1881):   Mason  v.   Alexander,  4+  Oh.  St.   318 
(1886)  :  Taylor  v.  West  Liberty  Wheel  Co.,  9 
Am.  L.  Pec.  28  (1880). 

Order  of  liability. 

The  stockholder-  at  the  time  the  suit  is 
commenced  are  first  liable,  and  after  them, 
those  who  have  assigned  stork  to  insolvent  or 
nonresident  parties. —  Brown  v.  Hitchcock.  36 
Oh.  St.  607    (1881). 

Application  of  corporate  assets. 

The  proceeds  of  the  Bale  of  assets  of  the 
corporation  should  he  applied  to  reduce  the 
aggregate  of  all  debts,  so  that  all  stockhold- 
ers, past  and  present,  may  he  benefited. — 
Tayhu-  v.  West  Liberty  Wheel  Co.,  9  Am.  L. 
Rec.  28  (1880). 

Liability  of  transferrers;  right  of  cred- 
itors. 

Where  the  holder  of   stock   has  trail  — 
the  same  in  good  faith  to  one  who  i-  insolv- 
ent  at   the  time  stockholder's  liability  i-  sub- 
jected    to    payment    of    corporate    debts,    the 
transferrer   becomes  liable  ondebtsconti 
while  he  held   stock,  in  case  a  sufficient   fund 
is  I,,,!    raised  by  assessment   on  soft  en1    • 
holders  to  satisfy  creditors.     In  such  cas 
fund   created   by   assessments   on    solvenl    per- 
sons who  are  stockholders  at   the  time  of  the 
decree,    should    he    applied   pro    rata    upon    all 
the  debts  of  the  corporation,  and  funds   aris- 
ing from  assessments  on  persons  who  had  been 


156 


Private  Corporations  in  Ohio. 


Stockholders'  liability,   etc,   §   3258. 


stockholders,  but  had  assigned  their  stock, 
should  be  applied  to  the  residue,  if  any,  owing 
to  those  who  wove  creditors  at  the  time  such 
stock  was  assigned. —  Wick  Nat.  Bank  v. 
Union  Bank,  62  Oh.  St.  446  ( 1900). 

Equities  between  corporation  and  cred- 
itors. 

Where  some  of  the  defendant  stockholders 
claim  to  be  creditors,  and  ask  an  adjustment 
of  their  rights,  and  a  reply  of  the  corporation 
alleging  thai  they  had  agreed  to  manage  the 
company  for  a  time  and  pay  specified  debts, 
and  asking  an  accounting  and  damages  for 
breach  of  the  agreement,  is  not  to  be  dis- 
missed  as  not  proper  to  be  settled  in  the  case. 
-  Morris  v.  Collamer.  etc..  R.  R.  Co..  2  C.  L. 
R.  34(1    i  l-7-i.  . 

It  seems  that  when  the  assets  of  an  insolv- 
ent corporation  are  not  in  a  condition  to  be 
converted  into  money,  creditors  may  assert: 
their  claims  against  the  individual  liability  of 
stockholders  without  awaiting  the  distribution 
of  corporate  assets  which  are  not  subject  to 
execution,  but  which,  when  reduced  to  money. 
should  be  applied  to  reimburse  payments  on 
individual  liability.— See  Morris  v.  Collamer. 
etc..  R.  R.  Co..  2  C.  L.  R.  347  (1878)  ;  Young- 
love  v  Lime  Co.,  49  Oh.  St.  663  (1802)  :  Turn- 
bull  v.  Pomeroy  Salt  Co.,  24  W.  L.  B.  133 
(1890);  Cowles  v.  Bartelh  3  W.  L.  M.  41 
(1860). 

Contribution  between  stockholders. 

Each  stockholder  sought  to  be  made  liable 
has.  in  order  that  his  liability  may  be  con- 
fined  to  his  just  proportion,  the  right  to 
insi-t  that  all  Stockholders  within  the  jurisdic- 
tion and  solvent  who  stand  in  the  same  rela- 
tion to  the  debts  with  himself,  shall  be 
brought  in  and  be  held  to  their  proportional 
liability  in  common  with  him;  and  such 
rights  arc  enforceable  in  the  original  action.—. 
Harpold  v.  Stobart,  46  Oh.  St.  397.  404  (1889)  ; 
Wheeler  v.  Faurot,  37  Oh.  St.  26,  29  (1881); 
Umsted  v.  Buskirk,  17  Oh.  St.  113   (1866). 

When  a  suit  is  brought  a  stockholder  has 
the  righl  to  bring  in  other  stockholders  and 
compel  them  to  contribute  their  pro  rata 
share  of  the  indebtedness;  but  the  right  to 
contribution  does  not  exist  in  the  ordinary 
legal  sense,  or  so  as  to  make  the  stockholders 
hear  the  relation  of  sureties  to  each  other. 
Burr  v.  Bates,  3  O.  C.  C.  1,  6  (1887)  ;  s.  c, 
2  C.    I).    1. 

Entry  of  transfer  on  stock  books. 

A   written   contract   of   sale   without    entry 

On  tin-  BtOCk  books  will  no1  relieve  a  stock- 
holder from  liability  for  debts  contracted  by 
thi'  corporation  before  transfer. —  Biles  v. 
Looker  <  •<•..  17  0.  C.  C.  538  (1889);  s.  c.  9  C. 
1).    685. 

Where,   by   reason  of  a   defective  entry   on 
the    company's    stock    books,    the    vendor    of 
liable  to  creditors,  he  is  entitled 
to   a    judgmenl    againsl    his    vendee   equal    in 
at    to  the  judgmenl   against  him. —  Har- 
pold v.  Stobart," 46  oh.  St.  ::n7.  40 1   (1889). 


The  creditors  have  the  right  to  resort  to 
and  rely  upon  the  proper  book  of  the  company 
as  showing  who  the  stockholders  are  and  the 
amount  of  stock  held  by  each,  and  they  are 
presumed  to  have  relied  on  such  records. 
While  it  is  not  necessary  that  a  book  of  any 
special  kind  be  adopted  for  that  purpose,  yet 
when  one  is  selected  and  used,  that  becomes 
the  stork  book:  and  transfers  to  be  valid 
must  be  made  upon  that. 

When  the  stock  book  shows  that  a  party  i- 
the  owner  of  shares  of  stock,  he  is  estopped 
as  between  himself  and  creditors  to  contradict 
the  record  provided  the  entry  was  placed  in 
the  stock  book  originally  by  ins  consent;  and 
his  consent  will  be  presumed  where  the  entry 
was  correct  when  made. —  Harpold  v.  Sto- 
bart, 46  Oh.  St.  401  (1889).  See  Wehrman  v. 
Reakirt,  1  C.  S.  C.  R.  230  (1871). 

Where  the  vendor  of  stock  causes  an  entry 
of  transfer  to  be  made  by  the  secretary  of  the 
company  in  a  book  then  present  at  the  office 
of  the  company  other  than  the  stock  book, 
with  the  expectation  that  it  will  be  entered  in 
another  book  then  at  the  residence  of  the 
secretary,  but  no  transfer  is  made  in  the 
stock  book  and  at  the  time  the  debts  accrued 
and  at  the  time  of  trial  such  vendor  appears 
by  the  stock  book  to  be  the  owner  of  the 
shares,  such  entry  of  transfer  is  not  sufficient 
to  relieve  the  vendor  of  liability,  notwith- 
standing the  sale  was  made  in  good  faith  and 
for  value,  and  that  the  vendor  believed  he  had 
done  all  that  was  necessary  to  effect  a  trans- 
fer of  the  stock,  and  the  further  fact  that  the 
company  thereafter  treated  the  vendor  as  the 
owner  of  the  stock. —  Harpold  v.  Stobart,  46 
Oh.  St.  397   (1889). 

The  stockholders  of  a  corporation  whose 
names  appear  on  the  stock  book,  or  in  the 
absence  of  such  book;,  on  the  stubs  of  stock 
certificates  as  the  holders  of  stock,  are  sub- 
ject to  a  stockholder's  liability  for  debts  in- 
curred ov  the  corporation  while  such  names 
are  allowed  to  so  remain.  To  avoid  such  lia- 
bility it  must  appear  on  the  stock  book  in  the 
one  case  or  on  the  stub  of  the  stock  certifi 
cate  in  the  other,  that  the  stock  has  been 
transferred  to  some  one  else.  It  is  not  suffi- 
cient if  the  stubs  of  new  stock  show  it  to 
have  been  issued  from  the  original  stock. 
The  stubs  of  such  original  stock  must  show 
the  transfer. —  Herrick  v.  Wardwelh  5S  Oh. 
St.  294   (1S98). 


Defenses  of  stockholders. 

A  stockholder  who  transfers  his  stock  after 
a  corporate  debt  has  been  created  is  not  re- 
lieved from  his  statutory  liability  for  such 
debt  by  an  agreement  for  an  extension  of  the 
time  for  its  payment,  although  such  agree- 
ment be  made  by  the  corporation  and 
creditor  after  such  transfer  and  without 
the  knowledge  or  consent  of  the  transferrer. 
—  Boice  v.  Hodge,  51  Oh.  St.  236  (1894); 
Painesville  Xat.  Bank  v.  Kino:  Varnish  Co., 
8  O.  C.  C.  563  (1894);  s.  c,  4  C.  TX 
511.     See  Wheeler  v.  Faurot,  37   Oh.   St.   28; 


1  i  E    .  l.K.u.    (   <  (RPORATION     I  -  . 


157 


Stockholders'  liability,   etc,   §   3258. 


Earpold  v.  Stobart,  46  Oh.  St.  397;  Taylor  v. 
Wesl  Liberty  Wheel  Co.,  9  Amer.  L.  Etec.  28 
i  L880)  :  Bauenschild  v.  Standard  Coffin  Co., 
s  X.   P.  124   (1900). 

It  is  ni)  defense  thai  a  stockholder  baa  sold 
and  disposed  of  his  stock  with  an  indemnity 
against  loss.  His  remedy  is  to  bring  in  the 
indemnitor  on  a  cross-petition  and  nave  the 
whole  matter  settled. —  Hardman  v.  Cincin- 
nati, etc.,  Ry.  Co.,  15  W.  L.  B.  1(>4  (1886). 

When   the   creditor   plaintiffs   have    not    re- 
duced   their   claims    to   judgment,    the    stocl 
holders  can   only   interpose   such   defenses   to 
them   as   are   available    to    the    corporation. — 
Hardman  V.  Cincinnati,  etc.,  Ry.  Co.,  18  W.  L. 

B.  2G4  (1887);  Stewart  v.  Triumph  In-.  Co..  1 
W.  L.  B.  103  (1876);  R.  R.  Co.  v.  Smith.  48 
Oh.  St.  219   (1891). 

Stockholders  can  plead  any  defense  to  judg- 
ment claims  against  the  corporation  that  are 
personal  and  peculiar  to  stockholders,  and 
which  the  company  could  not  plead. —  See 
Gaw  v.  Glassboro,  etc.,  Co.,  20  O.  C.  C.  416 
(1900);  Hardman  v.  Cincinnati,  etc.,  Rv.  Co., 
18  W.  L.  B.  264   (1887). 

Where  the  claims  of  the  creditors  consist  of 
notes  given  by  the  corporation  for  amounts 
agreed  upon  on  settlement  of  accounts  and 
transactions  between  it  and  its  creditors,  and 
the  stockholders  by  their  answer  seek  to  open 
up,  surcharge  and  falsify  the  settlement  for 
fraud  of  which  they  had  knowledge  more 
than  four  years  before  the  commencement  of 
the  action,  the  statute  of  limitations  is  a  good 
plea  in  bar  to  the  relief  sought  by  the  stock- 
holders.—R.  R.  Co.  v.  Smith,  48"  Oh.  St.  219 
(1891). 

Where  the  defendant  stockholder  alleges 
that  the  notes  of  the  corporation  on  which 
his  liability  is  based  have  been  paid  by  a  new 
note  of  the  corporation  after  he  transferred 
his  stock,  it  is  a  good  defense  on  demurrer. — 
Wheeler  v.  Faurot,  37  Oh.   St.  26    (1881). 

Defendants,  who  were  stockholders  at  the 
time  of  the  commencement  of  a  creditors' 
suit  to  enforce  their  liability,  cannot  defend 
on  the  ground  that  they  became  stockholders 
after  the  liability  of  the  corporation  to  the 
creditors  was  incurred. —  See  Bonewitz  v.  Van 
Wert  Co.  Bank,  41  Oh.  St.  78  (1884);  R.  R. 
Co.  v.  Smith.  48  Oh.  St.  219  (1891)  :  Barrick  v. 
Gifford,  47  Oh.  St.  ISO  |  1890). 

It  is  no  defense  that  the  subscriptions  1o 
stock  were  made  prior  to  the  filing  of  the 
articles  of  the  corporation  when  the  records 
of  the  corporation  show  they  were  made  sub- 
sequent to  the  filing  of  the  articles. —  Royce 
v.  Tyler,  2  O.  C.  C.  175  (1887);  s.  c.  1  CD. 
428. 

It  is  no  defense  that  an  arrangement  was 
made  with  one  of  the  directors  of  the  corpo- 
ration for  a  cancellation  of  certain  subscrip- 
tions, and  that  such  cancellation  was  pre- 
pared and  signed. —  Rovce  v.  Tyler,  2  O.  C.  C. 
175  (1887);  s.  c.  1  C.  I).  42S. 

It  is  no  defense  that  a  certificate  of  stock 
has  never  been  issued. —  Rovce  v.  Tvler,  2  O. 

C.  C.   175    (1887);    s.  c,   1  C.  D.  428. 


It    is  no  defense  thai   ■■>  creditoi    has  -.-tiled 
his  claims  against  the  company  .  or  I  hat  • 
Qled  hie  claim  and  claimed  a   lien  in  another 
case.     Paymenl   of  such  claim*    mould 
leged.      Hardman  \.  I  incinnat  i 
15  W.   I..   B.    164   |  l 

Where   a    subscription    to    ->  made 

three  years  before  i  he  corporal  ion  I 
Bolvent,  it  is  to.,  [ate  to  introduce  the  d< 
to  an  action  by  a  creditor  of  the  corpoi 
1  ha1    i  he  subscription  was  procured  bj    I 

Painesville  Nat.  Bank  v.  King  Varnish  Co 
s  0.  C.  C.  563;  s.  c,  I  C.  D.  511;  Ryan  \ 
Miami  Valley  Ry.  Co.,  10  A.  I..  R.  263  (1881). 

Interest. 

lnlere-t  may  be  included  in  the  judgmenl 
rendered  from  the  date  of  the  beginning  of 
the  suit,  although  t  he  amount  of  the  ret 
may  exceed  the  stockholders'  liability,  when 
i(  is  apparent  at  the  beginning  of  the  -nit 
that  the  stockholder-  mu-i  be  assessed  the 
full  amount  of  their  liability.  Mason  v. 
Alexander.  4)  Oh.  St.  318  -  L886)  ;  Taj  lor  v. 
\\'e-t  Liberty  Wheel  Co..  9  Amer.  L.  Rec.  28 
I  L880)  :  Weinman  v.  Reakirt,  L  C.  S  C  R 
230  (1871). 

If  before  the  commencemenl   of  a  suit   it   is 
not  known  thai  Hie  stockholders  musl   be  as- 
sessed in  the  maximum  amount,  and  thai 
is    not    ascertained    until    the    report    of    the 
referee    comes    in,    interest     can    be    charged 
againsl    the  stockholders  only   from  tb, 
of  the  confirmation  of  the  referee's  rept 
Berger    v.    Commercial    Bank,    5    \.    P     17u 
I  1897)  ;   s.  c,  .")   Dec.  277. 

Unless  the  petition  contains  a  prayer  for 
interesl  under  §  5060,  interest  can  only  be 
charged  against  stockholder-  from  the  time 
of  the  decree.— Berger  v.  Commercial  Bank, 
5  N.  P.  176,  179  (1897)  ;  s.  c.,  5  Dec.  277. 

Enforcement      of     liability     in     foreign 

corporations. 

Where  the  statutes  of  a  foreign  state  pro- 
vide a  special  remedy  for  the  enforceme  I 
the  statutory  liability  of  stockholders,  our 
courts  will  not  enforce  it  on  the  ground  of 
comity. —  Wyatt  v.  Moorehead,  4  X.  P 
i  1897)  :    s.   e'..    7    Dec.   380. 

statutory  liability  in  foreign  corporations 
will  only  be  enforced  when  it  can  be  done 
under  our  procedure  in  like  cases,  or  when  the 
matter  has  been  heard  by  a  court  of  compe- 
tent jurisdiction  and  the  liabilities  fixed  pro 
rata  on  each  stockholder. —  Wyatt  v.  Moore- 
head. 4  X.  P.  4::.")  |  1897)  ;  -  <•..  :'  D< 
Judson  v.  Stewart.   7   X.   P.   160    (IS 

Enforcement   of  Kansas   law   in    Ohio. 

See  Kulp  v.  Fleming,  65  Oh.  St.  321,  47  W. 
L.  B.  67  (1902)  :  Blair  v.  Newbegin,  65  Oh.  St. 

— ,  47  O.  L.  B.  77    (1002). 

Liabilitv   on    increased    stock   under   act 
of  1865. 

Turnbull  v.  Pomeroy  Salt  Co.,  24  W.  L. 
B.  133   (1890). 


158 


Private  Corporations  in  Ohio. 


Stockholders'  liability  —  Enforcement,  etc.,   §§  3258a-3260a. 


Bond  against  liability. 

As  to  the  rights  of  a  creditor  under  a  bond 
given  by  a  purchaser  of  property  to  stock- 
holders to  protect  them  against  liability,  see 
llatrv  v.  Painesville,  etc.,  Ry.  Co.,  1  0.  C. 
C.  126  (1886);  s.  c.  1  C  D.  238;  affirmed  in 
32  W.  L.  B.  281. 


Liability  in   turnpike   companies   under 
act  of  May  3,    1852. 

Sec  Palestine,  etc.,  Turnpike  Co.  v.  Wooden, 
13  Oh.  St.  395  (1862);  Ireland  v.  Palestine, 
etc.,  Turnpike  Co.,  19  Oh.  St.  369  (1S69). 


§  3258a.  LIMITATION  OF  ACTION. —  An  action  upon  the  liability  of  stock- 
holders can  only  be  brought  within  eighteen  months  after  the  debt  or  obligation 
shall  become  enforcible  against  stockholders.     (April  29,   1902,  95  v.  313.) 

See  notes  under  §  3260g. 

§  3259.  THE  TERM  "  STOCKHOLDERS  "  DEFINED.—  The  term  "  stock- 
holders," as  used  in  the  preceding  section,  shall  apply  not  only  to  such  persons  as 
appear  by  the  books  of  the  corporation  to  be  such,  but  to  any  equitable  owner  of  stock, 
although  the  stock  appears  on  the  books  in  the  name  of  another.     (R.  S.  1880.) 


Who     are     stockholders?  —  Liability     of 
trustees. 

The  general  rule  is  that  the  person  in  whose 
name  the  stock  stands  is  the  legal  owner,  and 
is  liable  whether  he  is  a  mere  trustee  for  an- 
other or  a  pledgee  holding  the  stock  as  col- 
lateral security.  He  is  liable  as  a  stockholder, 
and  must  look  to  his  cestui  que  trust  or 
pledgor  for  indemnity  or  reimbursement. — 
Holcomb  v.  Gibson,  39  W.  L.  B.  380  (1898) 
(Sup.  Ct.)  ;  Henkle  v.  Salem  Mfg.  Co.,  39  Oh. 
St.  547,  552  (1883);  Stewart  v.  Triumph  Ins. 
Co.,  1  W.  L.  B.  103  (1S76).  See  Biggio  v. 
Sandheger,  8  N.  P.   13    (1900). 

Where  a  bank  took  its  own  stock  in  payment 
of  a  debt  to  it,  and  entered  it  on  its  books  in 
the  name  of  a  stockholder  as  "  trustee  of  the 
Citizens'  Savings  Bank,"  such  stockholder,  on 
the  failure  of  the  bank,  is  liable  to  the  credit- 
ors as  the  legal  owner  of  the  stock. —  Holcomb 
V.  Gibson,  39  W.  L.  B.  380   (1898). 

If  a  transfer  of  stock  is  not  bona  fide,  but 
is  a  mere  ruse  or  device  by  which  the  stock- 
holder seeks  to  hold  himself  out  to  the  world 
as  divested  of  his  ownership,  while  by  some 
understanding  or  agreement,  express  or  im- 
plied, the  transferee  held  it  for  him,  he  would 
remain  the  equitable  owner,  and  liable  under 
the  statute.  -See  Peter  v  Union  Mfg.  Co.,  56 
Oh.  St.  181,  208  (1897). 


If  a  sale  and  transfer  is  absolute,  and  made 
in  good  faith,  the  former  owner  does  not 
thereafter  remain  the  equitable  owner  by 
reason  of  the  fact  that  the  worthless  stock 
passed  either  by  gift  or  sale  into  the  owner- 
ship of  an  insolvent  transferee,  and  that  the 
sole  object  of  the  former  holder  in  entering 
into  the  transaction  was  to  escape  liability  for 
future  debts  of  the  corporation. — -  Peter  v. 
Union  Mfg.  Co.,  56  Oh.  St.  181,  208  (1897). 

When  legatee  of  stock  liable. 

One  who  receives  a  bequest  of  stock,  which 
is  not  thereafter  transferred  on  the  books, 
and  there  is  no  evidence  of  his  acceptance  of 
the  bequest,  cannot  be  held  liable  as  a  stock- 
holder. The  estate  is  liable. —  See  De  Camp 
v.  Levoy,  19  O.  C.  C.  335  (1900);  Biggio  v. 
Sandheger.   8   N.   P.    13    (1900). 

This  section  cited  in  Cincinnati,  etc.,  Ry. 
Co.  v.  Third  Nat.  Bank.  1  0.  C.  C.  199,  207 
(1885):  s.  c,  1  C.  D.  109;  Freon  v.  Carriage 
Co.,  42  Oh.  St.  30,  36  (18S4). 

Cumulative  remedy. 

The  object  of  this  section  is  to  give  a  cumu- 
lative remedy  so  that,  when  the  person  in 
whose  name  the  stock  stands  on  the  books  is 
financially  irresponsible,  the  creditors  may  in- 
quire further  and  pursue  the  equitable  owner. 
—  Holcomb  v.  Gibson,  39  W.  L.  B.  380  (1898). 


§   3260.     WHERE  COMPLAINT  FOR  ENFORCEMENT  OF  LIABILITY  FILED.— 

Whenever  any  creditor  of  a  corporation  seeks  to  charge  the  directors,  trustees,  or 
other  superintending  officers  of  a  corporation,  or  the  stockholders  thereof,  on  account 
of  any  liability  created  by  law,  he  may  file  his  complaint  for  that  purpose  in  any 
common  pleas  court  which  possesses  jurisdiction  to  enforce  such  liability.  (April  16, 
1900,  94  v.  359;  91  v.  88;  R.  S.  1880.) 

See  notes  under  §   3260f. 

§  3260a.  ACTION  BY  COURT;  APPOINTMENT  OF  RECEIVER.— The  court 
shall  proceed  thereon,  as  in  other  cases,  and,  when  necessary,  shall  cause  an  account 
to  be  taken  of  the  property  and  obligations  due  to  and  from  such  corporation,  and  may 
appoint  one  or  more  receivers.     (April   16,  1900,  94  v.  360.) 


General  Corporation   Law. 


159 


Stockholders'  liability  —  Enforcement,  etc.,  SS  3260b  3260f. 


§    3260b.     ENFORCEMENT    OF     LIABILITY    UPON    INSOLVENT    CORPORA- 
TION.—  If,  on  the  coming  in  of  the  answer  or  upon  the   taking  of  such 
appears  that  such  corporation  is  insolvent,  and  has  not  sufficient  property  or  effects 
to  satisfy  such  creditor,  the  court  may  proceed  to  ascertain  the  respective  Liabi] 
of  the  directors,  officers  and  stockholders,  and  enforce  the  same  by  its  judgment,  as 
in  other  cases.     (April   16,   1900,  94  v.   360.) 

§  3260c.  NOTICE  TO  NON-RESIDENT  STOCKHOLDERS;  COLLECTION  OF 
UNPAID  INSTALLMENTS  OF  STOCK.—  In  all  cases  in  which  the  directors  or  other 
officers  of  a  corporation,  or  the  stockholders  thereof,  are  made  parties  to  an  action  in 
which  a  judgment  is  rendered,  if  the  property  of  such  corporation  is  insufficient  to  dis- 
charge its  debts,  the  court  shall  give  notice  to  non-resident  stockholders  as  provided 
in  sections  5048,  5049,  5050,  5051  or  5052  of  the  Revised  Statutes,  and  shall  first 
proceed  to  compel  each  stockholder  to  pay  in  the  amount  due  and  remaining  unpaid 
on  the  shares  of  stock  held  by  him,  or  so  much  thereof  as  is  necessary  to  satisfy  the 
debts  of  the  company.     (April  16,  1900,  94  v.  360.) 

§  3260d.  COURT  TO  ASCERTAIN  AND  ADJUDGE  LIABILITIES  OF  OFFI- 
CERS AND  STOCKHOLDERS;  PROSECUTION  BY  RECEIVER.— If  the  debts  of 
the  company  remain  unsatisfied,  the  court  shall  proceed  to  ascertain  the  respective 
liabilities  of  the  directors  or  other  officers  and  of  the  stockholders,  and  to  adjudge  the 
amount  payable  by  each,  and  enforce  the  judgment,  as  in  other  cases.  The  court  may 
authorize  and  direct  the  receiver  to  prosecute  such  action  in  his  own  name  as  receiver, 
as  may  be  necessary,  in  other  jurisdictions  to  collect  the  amount  found  due  from  any 
officer  or  stockholder.     (April  16,  1900,  94  v.  360.) 

§  3260e.  NOTICE  TO  CREDITORS.—  Whenever  any  action  is  brought  against 
any  corporation,  its  directors  or  other  superintending  officers,  or  stockholders,  accord- 
ing to  the  provisions  of  this  chapter,  the  court,  whenever  it  appears  necessary  or 
proper,  may  order  notice  to  be  published,  in  such  manner  as  it  shall  direct,  requiring 
all  the  creditors  of  such  corporation  to  exhibit  their  claims  and  become  parties  to  the 
action,  within  a  reasonable  time,  not  less  than  six  months  from  the  first  publication 
of  such  order,  and,  in  default  thereof,  to  be  precluded  from  all  benefit  of  the  judgment 
which  shall  be  rendered  in  such  action,  and  from  any  distribution  which  shall  be  made 
under  such  judgment.     (April  16,  1900,  94  v.  360.) 

§  3260f.  DISTRIBUTION  OF  PROPERTY  AND  ASSETS  OF  INSOLVENT  COR- 
PORATION.—  Upon  a  final  judgment  in  any  such  action  against  an  insolvent  corpora- 
tion, the  court  shall  cause  a  just  and  fair  distribution  of  the  property  and  assets  of 
such  corporation  or  the  proceeds  thereof  to  be  made  among  its  creditors.  (April  16, 
1900,  94  v.  360.) 


Note. —  The   following  cases  apply  to  the  provisions  of  §  32G0  el    Beq. 


Similarity  to  Minnesota  and  Wisconsin 
statutes. 

Statutes, 


See  Revised 
§  3223  et  seq. 
(1897). 

See     General 


Wisconsin,      1898, 
Booth  v.  Deer,   96  Wis.   516 

Statutes,  Minnesota,  1891, 
§  5563  et  seq.;  Hanson  v.  Davison,  76  \".  W. 
254  (1898) ;  Bank  v.  Real  Estate  Co.,  63  N.  W. 
Rep.  1068  (1895);  Spooner  v.  Bay  St.  Louis 
Syndicate,  51  N.  W.  Rep.  377  (1892);  Nelson 
v.  Jenks,  51  Minn.  108  (1892)  ;  Clarke  v.  Opera 
House  Co.,  58  Minn.  16  (1894):  Johnson  v. 
Fischer,  30  Minn.  173  (1SS3)  ;  Arthur  v.  Wil- 
ling, 44  Minn.  409;.  Hale  v.  Hardon,  95  Fed. 
747    (1899). 


Old   section. 

The   old   section   was   merely   a   codification 

of    the   equity    principles    laid    down    by    the 

courts,    with    the   addition    that   the   right    to 

commence  the  suil  was  given  to  a  stockholder. 

Si  e  Bamilton  v.  Eome  [ns.  Co.,  1  X.  P 

1895)  :  s.  c,  3  Dec  389;  Burr  v.  Bates,  3  O. 
C.  C.  1.  8  (1887);  s.  c,  2  C.  D.  1  ;  Swan  v. 
Mansfield,  etc.,  K.  R.  Co.,  3  X.  P.  225,  229 
I L896)  :  s.  c.  5  Dec.  297. 

Action       cannot      be       maintained       for 
trivial   amount. 

See  Carr  v.  Iglehart,  3  Oh.  St.  457    (1S54). 


160 


Private  Corporations  in  Ohio. 


Stockholders'  liability  —  Enforcement,  etc.,  §  3260f. 


Nature  of  action. 

The  suit  is  in  equity,  and  the  equities  and 
liabilities  of  the  parties  as  between  them- 
selves  may  be  marshaled  in  accordance  with 
the  rules  "of  equity,  and  adjusted  in  the  final 
judgment.—  R.  R.  Co.  v.  Smith,  48  Oh.  St. 
219  (1891);  Bullock  v.  Kilgour,  39  Oh.  St. 
543,  546  (1883);  Wheeler  v.  Faurot,  37  Oh. 
St.  26,  29  (1881);  Brown  v.  Hitchcock,  36 
Oh.  St.  667.  681  (1881).  See  Ryan  v.  Miami, 
etc.,  R.  R.  Co.,  16  0.  C.  C.  530  (1898);  s.  c, 
9  C.  D.  401;  Morris  v.  Collamer,  etc.,  R.  R. 
Co.,  2  Cleve.  L.  Rec.  347  (1878);  Wehrman  v. 
Reakirt.   1  C.  S.  C.  R.  230  (1871). 

The  action  is  an  equitable  one,  and  the  court 
may  withhold  final  judgment  until  the  exact 
amount  each  stockholder  should  pay  can  be 
ascertained,  or  so  mold  its  decree  as  to  re- 
quire the  several  stockholders  to  pay  their 
proper  proportion  of  the  liabilities  after  the 
exhaustion  of  the  corporate  assets,  and  retain 
control  over  the  cause  and  the  parties  until 
their  ultimate  rights  shall  be  determined  and 
adjusted. —  See  Younglove  v.  Lime  Co.,  49 
Oh.  St.  663.  667   (1892). 

The  suit  is  in  equity  for  the  benefit  of  all 
the  creditors,  and  when  a  part  of  the  creditors 
institute  a  suit  on  behalf  of  all,  no  creditor 
can  acquire  priority  or  institute  a  separate 
suit  in  his  own  behalf .— Wright  v.  McCor- 
mack,  17  Oh.  St.  86  (1866);  Umsted  v.  Bus- 
kirk.  17  Oh.  St.  113  (1866);  Lamont  v.  Home 
Ins  Co.,  10  W.  L.  B.  413  (1883);  Johnson  v. 
Carpenter,  21  O.  C.  C.  168  (1900). 

Joinder   of   actions. 

The  statutory  liability  of  stockholders  and 
the  payment  of  unpaid  stock  subscriptions 
mav  be  enforced  in  the  same  action  by  a  cred- 
itor, notwithstanding  the  corporation  has 
made  an  assignment  for  the  benefit  of  its 
creditors,  the  assignee  being  before  the  court 
and  consenting  that  both  issues  may  be  tried, 
or  even  if  the  person  who  is  assignee,  being 
also  a  creditor  of  the  company,  brings  the 
actions.—  Painesville  Nat.  Bank  v.  King 
Varnish  Co.,  8  O.  C.  C.  563  (1894)  ;  8.  c,  4  C. 
D.  511;  Turnbull  v.  Pomeroy  Salt  Co.,  24  W. 
I..   B.  133   (1890). 

A  judgment  creditor  may  join  an  action  to 
compel  the  payment  of  unpaid  subscriptions, 
and  an  action  to  enforce  the  individual  lia- 
hilitv  of  the  stockholders  of  his  debtor. — 
Warner  v.  Callender,  20  Oh.  St.  190  (1870)._ 

When  n  corporation  is  insolvent,  and  its 
assets  in  the  hands  of  a  receiver,  a  creditor 
may.  by  cross-petition,  seek  the  enforcement 
of  the  statutory  liability  of  the  stockholders, 
although  his  claim  has  not  been  reduced  to 
judgment. —  Peter  v.  Farrell  Foundry,  etc., 
Co.,   53   Oh.   St.   534    (1895). 

An  action  against  a  corporation  on  a  claim 
and  an  action  against  the  stockholders  of  a 
corporation  on  their  individual  liability  can- 
not be  joined. —  Lee  v.  Fraternal,  etc.,  Ins. 
Co.,   I    Bandy,  217    (1854). 

Tn  an  action  under  chapter  5  of  division  7 
of  title  1  of  the  Revised  Statutes,  a  creditor 
may  intervene  and    join  in  his  cross-petition  a 


cause  of  action  for  money  payable  to  the  cor- 
poration by  a  stockholder  thereof  on  account 
of  stock  issued  to  him,  with  a  cause  of  action 
against  all  the  stockholders  to  enforce  pay- 
ment of  their  statutory  liability. 

See  Peter  v.  Farrell  Foundry,  etc.,  Co.,  53 
Oh.  St.  534,  551   (1895).  > 

An  action  to  enforce  the  liability  of  incor- 
porators under  §  3244  may  be  joined  with  an 
action  under  this  section. —  Hessler  v.  Cleve- 
land Punch,  etc.,  Co.,  61  Oh.  St.  621   (1899). 

Under  §  3200  as  amended  and  supplemented, 
94  O.  L.  359,  a  creditor  may  join  a  cause  of 
action  to  compel  payment  of  unpaid  subscrip- 
tions for  stock,  and  a  claim  to  enforce  the 
statutory  liability  of  its  stockholders  for  the 
satisfaction  of  his  debt  in  the  same  manner 
as  he  could  before  the  passage  of  such  act. 
Nor  does  it  make  any  difference  that  his 
claim  is  not  reduced  to  judgment. —  Lilley  v. 
Kinnear,  13  Dec.  65. 

Parties. 

All  the  stockholders  at  the  time  of  the  com- 
mencement of  the  suit,  and  all  persons  ulti- 
mately liable  as  stockholders,  viz.,  persons 
who  have  assigned  their  stock  after  the  crea- 
tion of  corporate  debts,  are  necessary  parties. 
—  Bonewitz  v.  Van  Wert  Co.  Bank.  41  Oh.  St. 
78,  80;  Bullock  v.  Kilgour,  39  Oh.  St.  543, 
546   (1883);  Wheeler  v.  Faurot,  37  Oh.  St.  26. 

It  is  error  to  proceed  with  the  cause  until 
all  of  the  stockholders  within  the  jurisdiction 
are  brought  in. —  Bonewitz  v.  Van  Wert  Co. 
Bank,  41  Oh.  St.  78.  80;  Lemar  v.  Stephens, 
27   W.  L.  B.  301    (1892). 

The  suit  being  for  the  benefit  of  all  cred- 
itors, all  the  stockholders  must  be  parties. — 
Brown  v.  Hitchcock,  36  Oh.  St.  667,  681 
(1881);  Younglove  v.  Lime  Co.,  49  Oh.  St. 
663,  667  (1892)  ;  Smith  v.  Newark,  etc.,  R.  R. 
Co.,  8  O.  C.  C.  583  (1894)  ;  s.  c,  4  C.  D.  356. 

In  an  action  by  a  creditor  of  a  corporation 
on  behalf  of  all  the  creditors  against  the 
stockholders  to  collect  the  statutory  liability, 
it  is  not  necessary  or  proper  to  make  the 
other  creditors  parties  to  the  action,  either  in 
the  court  of  common  pleas  or  in  a  higher 
court,  on  appeal  or  on  error.  In  such  cases 
the  action  is  prosecuted  by  the  plaintiff  for 
the  common  benefit  of  all  the  creditors  for  the 
creation  of  a  fund  for  pro  rata  distribution 
among  them,  and  whatever  the  plaintiff  does 
in  good  faith  in  that  behalf  inures  to  the  com- 
mon benefit  of  all,  and  binds  all. —  Herrick  v. 
Wardwell,  58  Oh.  St.  294  (1S98).  See  John- 
son v.  Carpenter,  21  O.  C.  C.  168   (1900). 

Duty  of  creditor  plaintiff. 

It  would  seem  that  where  a  creditor  plain- 
tiff on  behalf  of  all  creditors  was  acting  in 
bad  faith,  or  without  due  regard  to  the  inter- 
ests of  the  case,  it  would  be  within  the  dis- 
cretion of  the  court  to  turn  the  case  over  to 
some  other  creditor,  or  the  case  should  be 
turned  over  in  case  the  plaintiff  creditor  ef- 
fects a  settlement  with  the  stockholders,  or 
dismiss  the  same. —  See  Johnson  v.  Car- 
penter, 21  O.  C.  C.  168  (1900). 


General  Corporation   Law. 


161 


Stockholders'  liability  —  Enforcement,  etc.,  jj  3260f. 


If  t  he  plainl  iff  fails  to  bring  in  all  t  be  par 
ties,  the  defendants  may  take  steps  to  make 
them  parties. —  I'.iin  v.  Hates,  3  <>.  ('.  ( '.  I.  I 
(1887);  s.  c,  2  C.  D.  1. 

Right  to   dismiss  action. 

It  seems  thai  before  other  interested  parties 
intervene,    the    plaintiff    in   a    representative 

suit   may  dismiss   the  same. —  See    Dieidatne   v. 
Germania  Investment  Co.,  8  N.  P.  405  (1901). 

Parties. 

Creditors  may  sue  such  stockholders  as  they 
see  fit,  and  recover  from  them  their  pro  rata 
proportion  of  the  indebtedness,  the  defendant 
stockholders  only  having  the  right  to  bring  in 
other  stockholders  for  the  purpose  of  contri- 
bution, and  if  the  plaintiffs  are  willing  to  re- 
linquish the  amount  the  stockholders  not 
parties  would  have  to  contribute,  the  defend 
ants  could  not  complain. —  Sturges  v.  Mans- 
field, etc.,  R.  R.  Co.,  C.  C.  Richland  Co.;  af- 
firmed Penna.  Co.  v.  Sturges,  56  Oh.  St.  733 
(1897). 

The  .corporation  is  a  necessary  party. — 
Umsted  v.  Buskirk,  17  Oh.  St.  113   (1866). 

Parties  to  appeals. 

When  there  is  an  issue  and  a  determination 
of  the  same  between  the  vendor  and  vendee 
of  stock  as  to  their  respective  liability,  an  ap- 
peal taken  to  the  circuit  court  by  the  vendor 
carries  up  the  case  as  to  the  vendee,  whether 
he  appeals  in  his  own  right  or  not. —  Harpold 
v.  Stobart,  46  Oh.  St.  397   (1889). 

Statute  of  limitations. 

The  action  is  on  a  liability  created  by  stat- 
ute, and  must  be  commenced  within  six  years 
from  the  time  it  accrues.—  Younglove  v.  Lime 
Co.,  49  Oh.  St.  663  (1892);  Bronson  v. 
Schneider,  49  Oh.  St.  438  (1892);  Barrick  v. 
Gifford,  47  Oh.  St.  180,  183  (1890);  Hawkins 
v.  Furnace  Co..  40  Oh.  St.  507  (1884). 

Each  creditor's  claim  is  distinct,  and  a  bar 
to  one  is  no  bar  to  the  action. —  Hardman  v. 
Cincinnati,  etc.,  Ry.  Co.,  15  W.  L.  B.  164 
(1886). 

A  suit  commenced  by  one  creditor  on  behalf 
of  himself  and  all  other  creditors  of  an  in- 
solvent corporation  is  in  the  nature  of  a  de- 
mand for  all,  and  saves  the  running  of  the 
statute  of  limitations  as  against  all  creditors 
who  may  come  in  and  assert  their  claims  be- 
fore the  final  determination  of  the  action. — 
Barrick  v.  Gifford,  47  Oh.  St.  180   (1890). 

A  plaintiff  who  negligently  fails  to  make 
solvent  stockholders  within  the  jurisdiction 
parties  until  the  right  of  action  against  them 
is  barred,  will  not  be  permitted  to  increase 
the  assessment  against  solvent  stockholders 
duly  served  by  reason  of  such  deficiency,  but 
all  solvent  stockholders  within  the  jurisdic- 
tion, whether  served  or  not.  will  be  treated  as 
in  court  for  the  purpose  of  the  assessment. 
and  the  loss  must  fall  upon  the  plaintiff  and 
other  creditors  of  the  corporation. —  Smith  v. 
Newark,  etc.,  R.  R.  Co.,  8  O.  C.  C.  583  (1894)  ; 
s.  c,  4  C.  D.  356. 

LAW  GOV.  PRIV.  COR.  — II. 


i  i  does  not  begin  to  i  an  againel  i  be  right 
of  creditoi  -  ol  a  corpoi  a  i  ion  i  o  enforce  t  be 
liability  of  persons  \\  bo  have  a  igned 
held  by  them  when  the  debts  were  incurred 
until  failure  by  reason  of  their  insolvency  to 
collect    from    the    at  such    stock. — 

Kilgour  v.  Pendleton,  8   W     L    B.    53 
s.   e.,    li    Am.    i,.    i;,.,..   38    (1882  Bul- 

lock v.  Kilgour,  39  Oh.  St.  543 

The  statute  doe-  not  begin  to  run  ae  to  a 
due  but  disputed  claim  until  it  i-  settled  and 

adjusted.       Hardman    v.    (  ineinnati 
Co.,  15  \V.  L.   B.   Mil.  L65   I  1886). 

The  statute  does  ool  begin  to  run  as  againsi 
creditors  until  their  claim-  arc  due.  though  a 
right  of  action  may  have  previously  accrued 
as  to  other-.  Hardman  v.  Cincinnati  etc. 
Ry.  Co..  15  W.  L.  B.  L64,   165  I  1886). 

A  stipulation  in  a  policy  of  insurance  limit- 
ing  the   time    within    which    an    action    may    be 

brought    thereon    has    reference    to    the    time 

within  which  suit  is  to  be  broughl  on  the 
policy  against  the  corporation;  and  where 
judgment  has  been  obtained  againsi  the  cor- 
poration in  a  suit  brought  within  the  time 
limited  by  such  stipulation,  it  is  no  deft  use 
for  a  stockholder,  when  sued  on  a  statutory 
liability,  that  the  suit  against  him  was  not 
commenced  within  the  time  so  specified. — 
Davis  v.  Stewart.  26  Oh.  St.  643  (  1  - 
Stewart  v.  Triumph  Ins.  Co.,  1  W.  L.  B.  103 
(1876). 

Limitation    in    action    against    executor 
or  heirs  of  deceased  stockholder. 

See  Bevitt  v.  Diehl,  12  Dec.  383  (1901); 
s.  c,   12  Dec.  315. 

Pleading. 

Where  a  suit  is  brought  with  a  view  of  hav- 
ing it  referred  to  a  master  in  chancery  to  re- 
port who  are  and  have  been  stockholders,  with 
a  view  of  further  relief,  it  is  in  the  first  in- 
stance sufficient  if  the  petition  shows  that  the 
plaintiff  has  brought  in  all  who  were  stock- 
holders when  the  corporation  became  insol- 
vent and  at  the  time  suit  was  begun,  or  given 
valid  reasons  for  not  so  doing,  although  per- 
sons may  be  found  who.  by  reason  of  once 
having  been  stockholders,  must  be  made  par- 
ties before  a  final  decree  will  be  entered. — 
Turnbull  v.  Pomeroy  Salt  Co.,  24  W.  L.  B.  133 
(1890). 

A  petition  which  avers  that  each  of  the 
defendants  except  the  corporation  is  the 
holder  of  a  specified  number  of  shares  of  the 
capital  stock  of  the  corporation,  contain-  a 
sufficient  allegation  that  the  defendant 
stockholders.  It  need  not  be  averred  in  terms 
that  the  defendants  are  owners  of  the  Btock 
held  by  them.— R.  R.  Co.  v.  Smith.  4*  Oh. 
St.  219"  (1891). 

In  an  action  against  an  insolvent,  streel 
railroad  company,  an  averment  that  the 
"  company  is  a  corporation  duly  incorporated 
under  the  laws  of  the  state  of  Ohio  "  i-  a 
sufficient  averment  that  it  was  incorporated 
under  a  law  enacted  since  the  adoption  of  the 


162 


Private  Corporations  in  Ohio. 


Stockholders'  liability  —  Enforcement,  etc.,  §  3260f. 


present  constitution,  for  the  court  will  judi- 
cially notice  that  no  statute  existed  prior  to 
the  present  constitution  authorizing  the  in- 
corporation of  a  street  railroad  corporation; 
and  if  incorporated  since  the  adoption  of  the 
constitution,  it  must  be  subject  to  the  lia- 
bility.—Rider  v.  Fritchey.  49  Oh.  St.  285 
(1892). 

If  a  petition  contains  the  necessary  aver- 
ments to  charge  the  defendant  stockholders, 
it  is  not  demurrable  because,  for  aught  that 
appear-,  the  plaintiff  is  the  only  creditor  and 
the  defendants  the  only  stockholders. —  Urn- 
sted  v.  Buskirk,  17  Oh.  St.  113  (1866).  See 
Hall  v.  Standard  Coal  Co.,  7  N.  P.  157  (1897). 

A  petition  is  bad  unless  it  alleges  that  the 
defendants  held  their  stock  at  the  time  the 
debts  were  incurred. —  Hooker  v.  Kilgour,  2 
C.  S.  C.  R.  350  (1873). 

The  answer  of  a  defendant  is  not  sufficient 
if  it  only  denies  that,  he  was  a  stockholder  at 
the  time  the  note  sued  on  was  given  or  the 
judgment  rendered.  Such  an  answer  implies 
that  the  defendant  was  a  stockholder  at  some 
time. —  Hardman  v.  Cincinnati,  etc.,  Ry.  Co., 
14  W.  L.  B.  346  (1885). 

An  answer  is  not  sufficient  if  it  merely  de- 
nies that  the  defendant  ever  had  any  stock  in 
his  possession,  for  the  reason  that  such  answer 
is  evasive. —  Hardman  v.  Cincinnati,  etc.,  Ry. 
Co..  14  W.  L.  B.  346    (1885). 

An  answer  containing  a  defense  on  the 
ground  that  there  are  stockholders  who  have 
not  been  made  parties  should  disclose  the 
names  of  such  parties,  although  this  question 
should  be  raised  on  the  hearing  before  the 
referee. —  Hardman  v.  Cincinnati,  etc.,  Ry. 
Co.,  15  W.  L.  B.  164   (1886). 

If  a  defendant  claims  he  made  a  donation 
to  the  company  and  did  not  take  stock,  he 
should  make  such  proof  under  a  denial.  It  is 
a  matter  of  evidence  which  should  not  be 
pleaded. —  Hardman  v.  Cincinnati,  etc.,  Ry. 
Co..  15  W.  L.  B.  164  (1886). 

An  answer  of  a  defendant  alleged  to  be  a 
stockholder  will  be  ordered  to  be  made  more 
definite  and  certain  where  he  denies  the  alle- 
gations of  the  petition  for  want  of  knowledge. 
He  should  admit  or  deny  positively  the  alle- 
gations as  to  his  liability  as  a  stockholder. — 
Hardman  v.  Cincinnati,  etc.,  Ry.  Co.,  14  W. 
I..    I!.    346    (1885). 

"Where  action  must  be  brought. 

An  ait  ion  cannot  be  rightly  brought  in  a 
county  within  the  meaning  of  §  5038  and 
S  5030  when  none  of  the  defendants  reside 
there,  although  one  of  them  entered  his  ap- 
pearance  on  a  summons  mailed  to  him  in  an- 
other  county.  -Lamont  v.  Home  Ins.  Co.,  10 
\V.  I..  B.   113   (1883). 

An  action  to  enforce  a  liability  of  stockhold- 
er- in  an  insurance  company  is  not  an  action 
against  the  insurance  company  within  the 
meaning  of  §  5026,  and  if  it  were,  the  cause 
tion  being  the  insolvency  of  the  company, 
it   arose  at  the  main  office  of  the  company. — 


Lamont  v.   Home   Ins.   Co.,    10  W.   L.  B.   413 

(1883). 

Same  subject. 

The  action  may  be  brought  in  any  county 
in  which  any  defendant  may  be  rightly  sued 
and  served,  and  process  may  be  issued  to 
other  counties  for  other  defendants,  including 
the  insolvent  corporation. —  See  Swan  v.  Rail- 
road Co.,  4  Dec  71  (1895);  Hull  v.  Standard 
Coal  Co.,  7  N.  P.  157   (1897). 

Appointment  of  receiver. 

In  an  action  to  enforce  payment  of  stock- 
holders' liability  a  receiver  may  be  appointed 
after  judgment  to  collect  and  distribute  the 
fund,  and  such  receiver  may,  by  authority  of 
the  court  appointing  him,  prosecute  actions 
in  his  own  name  as  such  receiver  to  enforce 
payment  of  judgment  rendered  for  such  statu- 
tory liability.— Clarke  v.  Thomas,  34  Oh.  St. 
46  (1877);  Zieverink  v.  Kemper,  50  Oh.  St. 
208    (1893). 

Actions  by  receivers. 

See  as  to  proof  of  admission  of  judgments 
against  stockholders  in  actions  by  receivers, 
Zieverink  v.  Kemper,  50  Oh.  St.  208  (1893). 

Attachment. 

An  action  to  enforce  statutory  liability  is 
an  action  upon  a  demand  arising  upon  con- 
tract within  the  meaning  of  §  5521,  relating 
to  attachments  on  the  ground  of  nonresidence. 
— ■  Dabney  v.  Pappenheimer  Co.,  41  W.  L.  B. 
329  (1889);  s.  c,  20  0.  C.  C.  707;  Northern 
Nat.  Bank  v.  Maumee  Rolling  Mill  Co.,  2  N. 
P.  260  (1894);  s.  c,  2  Dec.  67;  Cleveland  Gas 
Co.  v.  Collins,  19  0.  C.  C.  247  (1899);  s.  c, 
6   N.  P.  218. 

Where  the  writ  of  attachment  is  sought, 
an  affidavit  sufficiently  shows  the  nature  of, 
the  plaintiff's  claim  where  it  states  that  the' 
defendant  is  a  stockholder,  that  the  action  is 
brought  to  enforce  the  statutory  liability  of 
the  stockholders,  and  that  the  claim  sued 
against  the  defendant  is  on  his  liability  as 
such  stockholder  for  the  corporate  debts. — 
Northern  Nat.  Bank  v.  Maumee  Rolling  Mill 
Co.,  2  N.  P.  260   (1894)  ;   s.  c.  2  Dec.  67. 

Nonresident  stockholders. 

Where  all  the  stockholders  are  not  before 
the  court,  and  it  does  not  appear  that  those 
not  served  with  process  could  not  be  served 
it  is  error  to  render  judgment  against  the 
stockholders  in  court  on  a  mere  finding  that 
those  not  served  were  nonresidents. —  Bone- 
witz  v.  Van  Wert  Co.  Bank,  41  Oh.  St.  7s 
(1884). 

Enforcement    against     nonresidents     in 
other  states. 

See  Appeal  of  Aultman,  9S  Pa.  St.  505 
(1881):  Barnes  v.  Wheaton,  80  Hun  (N.  Y.), 
8  (1894)  :  Cleveland,  etc.,  Rv.  Co.  v.  Kent.  87 
Hun  (N.  Y.),  329  (1895):  Post  v.  Toledo,  etc., 
R.  R.  Co.,   144  Mass.   341    (1887);    Nimick   v. 


General  Corporation   Law. 


163 


Stockholders'  liability  —  Enforcement,  etc.,  §  3260f. 


Mingo  Iron  Co.,  25  W.  Va.  184  (1884);  i:i  e 
v.  Merrimack  Hosiery  Co.,  56  \.  II.  in 
(1875);  Howarth  v.  Angle,  17  I.,  i;.  A.  i\. 
Y.)  (1900)  725;  Childs  v.  Cleaves.  50  \tl. 
Rep.    (Me.)   714   (1901). 

Enforcement     against     nonresidents     in 
federal  courts. 

See   State   Nat.    Hank    v.  Sayward,  91  Fed. 

443    (1899);    Newberry   v.    Robinson,   36  Fed. 

841     (1888)  ;     Male    v.    Bardon,    95    Fed.  747 

(1889):  Hartley  v.  Holmes.  45  W.  I>.  B  213 
(1901). 

Finding    of    referee    as    to    insolvency  — 
set  aside. 

See   De   Camp   v.    Levoy,    li>    O.    C.    C.   335 

(1900). 

Insolvent  and  nonresident  stockholders. 

The  right  of  the  stockholders  to  contribu- 
tion between  themselves  is  not  paramount  to 
the  right  of  the  creditors  to  be  paid,  and  if  it 
is  impossible  to  reach  all  the  solvent  stock 
holders  or  subject  them  to  the  jurisdiction  of 
the  court  without  unreasonable  delay,  those 
who  are  found  within  the  jurisdiction  of  the 
court  may  be  required  to  pay  the  indebtedness 
of  the  company  to  the  extent  of  their  indi- 
vidual liability  without  prejudice  to  their 
right  to  subject  their  co-stockholders  to  a  con- 
tribution by  other  subsequent  proceedings. — 
Wehrman  v.  Reakirt,  1  C.  S.  C.  R.  230,  234 
(1871). 

Attorney  fees. 

The  court  has  power  to  order  reasonable 
counsel  fees  to  the  plaintiff's  attorney,  to  be 
paid  out  of  the  proceeds  of  the  judgments, 
even  though  some  creditors  may  have  em- 
ployed their  own  counsel. —  Mason  v.  Alex- 
ander. 44  Oh.  St.  318,  337  (1886);  Hessler  v. 
Cleveland  Punch,  etc.,  Co.,  61  Oh.  St.  621 
(1S99). 

It  is  error  to  tax  a  counsel  fee  for  the 
plaintiff  and  include  the  same  in  the  judg- 
ment as  a  part  of  the  costs. —  See  Rider  v. 
Fritchey,  49  Oh.  St.  285,  290  (1892). 

When  attorney  fees  less  than  $300  are  al- 
lowed, the  supreme  court  has  no  jurisdiction. 
-  Minch  v.  Kirk-Christy  Co.,  45  W.  L.  B.  136 
(1901). 

Equitable   set-off. 

An  assignment  by  a  stockholder  of  his  claim 
against  the  corporation  after  its  insolvency, 
and  after  the  claim  or  note  became  due.  does 
not  affect  the  right  to  set  off  his  liability 
against  the  dividend  due  on  his  claim. — 
Barber  v.  Leader  Sewing  Machine  Co..  7  0.  C. 
C.  411  (1893);  s.  c.  4  C.  D.  658;  King  v. 
Armstrong,  50  Oh.  St.  222  (1893). 

Set-off. 

A  stockholder  cannot  set  off  as  against  his 
liability  an  indebtedness  of  the  company  to 
him. —  Painesville  Nat.  Bank  v.  King  Varnish 
Co.,  8  O.  C.  C.  563   (1894);   s.  e.,  4  C.  D.  511; 


Hardman  v.  <  Cincinnati,  <  i:,  w    I. 

B.   UK   |  ism; i. 

Contest  of  claims. 

A   creditor  can  except    to  the  allowance  of 
any  other  claim   upon  t  he  ground    t  hat   it    is 
not    of  Buch   a    nature    thai    stockholders   are 
liable  upon   it.     Hardman   v.  Cincinnati    etc 
Ry.  Co.,  15  W.  L.  B.  164  I  L887). 

Action  against  estate  of  deceased  stock- 
holders. 

An  action  may  be  maintained  againsl  the 
estate  of  a  deceased  stockholder  without 
exhibiting  an  accounl  of  the  Liability  to  bis 
personal  representatives.— Hall  v.  Btandard 
Coal  Co.,  7  x.  P.  157  (1897)  i  Wanz  v.  Park 
Hotel  Co.,  1  0.  C.  C.  105  (1885):  -.  c  I  ' 
D.  63. 

Reference. 

In  these  cases  the  names  of  the  creditors 
and  the  amount  due  each  from  the  corporation 
are  usually  ascertained  by  a  reference  to  a 
master  or  referee,  notice  being  published  by 
order  of  the  court  for  creditors  to  p 
their  claims.  Hi  case  of  a  contested  claim  an 
issue  should  be  ordered  to  be  made  up  and 
tried,  to  ascertain  and  fix  the  amount  dm-  to 
the  creditor  from  the  corporation.  While  the 
issue  and  trial  as  to  such  contested  claim  is  a 
proceeding  in  the  case,  it  is  distincl  from  the 
proceedings  against  the  stockholders,  the  one 
being  to  establish  the  validity  of  a  creditor's 
claim  against  the  company,  and  the  other  to 
collect  a  fund  from  the  stockholder-  for  the 
common  benefit  of  all  the  creditors. —  Herrick 
v.  Wardwell,  58  Oh.  St.  294,  307   (1898). 

Presumption. 

Where  it  appears  that  a  court  has  heard 
and  determined  a  -u it  to  enforce  stockholders' 
liability,  it  will  be  presumed  thai  the  essen- 
tial facts  were  alleged  and  proved. —  Swan  v. 
.Mansfield,  etc.,  R.  1!.  (  ....  3  N  P  225  227 
(1896);  s.  c,  5  Dec.  297. 

Continuance. 

Before  the  enactment  of  this  section,  where 
the  indebtedness  of  th(>  company  was  greatly 
in  excess  of  the  capital  stock,  and  it  appeared 
that  a  defendant,  prior  to  the  beginning  of  the 
action,  had  transferred  his  stock  to  a  solvent 
stockholder  within  the  jurisdiction,  and  owned 
it  when  a  part  of  the  debts  were  created,  but 
who  is  not  a  party  to  the  suit,  it  i-  not  error 
to  the  prejudice  of  either  stockholders  or 
creditors  for  the  court  to  adjudical 
tween  other  stockholders  who  are  parties 
the  creditors,  and  continue  the  case  for  fur- 
ther proceedings  as  to  the  liability  of  the 
vendor  and  vendee  of  the  stock  as  betwet-n 
themselves  and  as  between  them  and  the  cred- 
itors.—  Mason  v.  Alexander,  44  Oh.  St.  318 
(1886). 

Burden  of  proof. 

The  burden  is  on  the  plaintiff  creditor  to 
prove    a    defendant    to    be    a    stockholder. — 


164 


Private  Corporations  in  Ohio. 


Trustees  —  Liability,  etc.,  of,  §  3261. 


Henkle  v.  Salem  Mfg 
(18S3). 


Co.,  39  Oh.  St.  547,  552 


Judgment. 

Judgment  may  be  rendered  against  the 
stockholders  before  the  court  for  their  pro 
rata  share  of  the  debts,  taking  into  account 
the  liability  of  all  the  solvent  stockholders.— 
Burr  v.  Bates,  3  O.  C.  C.  1,  4  (1887);  s.  c,  2 
C.  D.  1. 

Finality  of  judgments. 

Where  a  judgment  has  been  rendered  against 
a  defendant  for  an  amount  certain,  as  being 
the  extent  of  his  statutory  liability,  .the  plain- 
tiff cannot  thereafter,  by  supplemental  peti- 
tion recover  an  additional  amount  upon  a 
liability  which  existed  when  the  first  judg- 
ment was  rendered.- Bullock  v  Kilgour,  o9 
Oh  St  543  (18S3);  s.  c,  8  W.  L.  B.  16;  n 
Am.  L.  Rec.  38   (1882). 

A  final  judgment  in  a  suit  to  enforce  stock- 
holders' liability  estops  all  the  creditors  from 
prosecuting  any  further  action  to  enforce  the 
liability:  and  such  judgment  is  final  as  to  the 
liability  of  stockholders  so  long  as  it  remains 
unreversed  or  otherwise  vacated.— Swan  V. 
Mansfield  R.  R.  Co.,  3  N.  P.  225  (1896)  ;  s.  c, 
5   Dec.   297. 

A  creditor  is  not  concluded  by  a  decree  in  a 
former  action  on  behalf  of  all  creditors  unless 
he  was  an  actual  party  to  such  former  adjudi- 
cation, or  had  notice  thereof  and  an  oppor- 
tunity to  become  a  party  thereto,  and  refused 
and  neglected  to  avail  himself  thereof.—  Ham- 
ilton v  Home  Ins.  Co.,  1  N.  P.  329  (1895)  ;  s. 
c  3  Dec  389.  See  Swan  v.  Mansfield,  etc.,  R, 
R.  Co.,  3  N.  P.  225  (1896)  ;  s.  c,  5  Dec.  297. 

Where,  in  an  action  to  enforce  the  statu- 
tory liability  of  stockholders  in  a  corporation, 
the'  petition  contains  all  the  appropriate  aver- 
ments, and  on  the  trial  there  has  been  a  find- 
ing that  all  the  allegations  are  true,  and  a 
judgment  that  the  defendant  stockholders  pay 
the  creditors  the  amount  found  due  them  as 
may  be  apportioned  among  the  solvent  defend- 
ants, the  judgment,  until  reversed  or  vacated 
by  proper  authority,  is  a  final  determination 
of  all  the  plaintiff's  claims,  and  appropriate 
proceedings  thereafter  in  carrying  the  judg- 
ment into  effect  after  proceedings  in  an 
appellate  court  do  not  include  a  retrial  of,  or 
inquire  into  any  question  of  fact  involved  in 
it,  but  relate  to  the  apportionment  of  the  lia- 
bility among  the  solvent  stockholders  accord- 
ing  to   their   respective  ownerships   as  deter- 


mined by  the  judgment,  and  a  valid  increase 
cannot  be  made  against  a  stockholder  on  any 
greater  number  of  shares. —  Baltimore,  etc., 
R.  R.  Co.  v.  Smith,  54  Oh.  St.  562  (1896); 
Smith  v.  Newark,  etc.,  R.  R.  Co.,  8  0.  C.  C. 
5S3  (1894);  s.  c,  4  C.  D.  356. 

In  the  absence  of  fraud  or  collusion,  all  the 
defendants  are  concluded  by  the  final  judg- 
ment, the  proceedings  throughout  being  for 
the  benefit  of  all  creditors.- —  Herrick  v. 
Wardwell,  58  Oh.  St.  294,  306   (1898). 

Property  transferred    by   a    stockholder 
not  subject  to  judgment. 

Property  transferred  by  a  stockholder  of  a 
corporation  at  a  time  when  it  was  going  and 
solvent  cannot  be  followed  into  the  hands  of 
bona  fide  purchasers  and  subjected  to  the 
payment  of  the  debts  of  the  corporation  upon 
the  subsequent  insolvency  of  the  company. — 
First  Nat.  Bank  v.  Rice,  22  O.  C.  C.  183  (1900). 

Application  of  proceeds. 

Where  a  creditor  holds  claims,  part  of 
which  are  secured,  he  cannot  apply  the  pro- 
ceeds of  a  judgment  to  the  unsecured  claims. 
The  court  will  pro  rata  the  same. —  National 
Bank  v.  Gam,  13  0.  C.  C.  447,  457   (1902). 

Credits  on  appeal. 

Where  an  appeal  is  taken  it  vacates  the 
judgments  appealed  from,  and  payments  made 
on  such  judgments  should  be  credited  to  the 
parties  in  the  appellate  court. —  Harpold  v. 
Stobart,  46  Oh.  St.  397,  399   (1889). 

Consolidation   of   cases. 

See  Newberry  v.  Alexander,  44  Oh.  St.  346 

(1886). 

Bankrupt  stockholders. 

A  stockholder's  statutory  liability  is  a 
provable  debt  against  the  estate  of  the  bank- 
rupt stockholder  whenever  the  circumstances 
are  such  that  a  stockholder's  liability  suit 
would  lie.  The  claim  against  the  bankrupt 
being  unliquidated,  the  court  will,  upon  ap- 
plication, direct  the  manner  of  liquidation, 
and  may  direct  the  creditor  applying  for  liqui- 
dation of  the  claim  to  institute  a  stockhold- 
er's liability  suit,  or  to  proceed  with  a  suit 
pending,  or,  if  the  facts  are  simple  and  undis- 
puted, the  court  may  itself  undertake  to  de- 
termine the  amount  of  the  liability  and  the 
creditors  to  whom  it  should  be  paid. —  In  re 
Rouse,  Bankrupt,  40  W.  L.   B.  220    (1898). 


§   3261.     TRUSTEES  PERSONALLY  LIABLE  FOR  DEBTS  CONTRACTED.—  The 

trustees  of  a  corporation  created  for  a  purpose  other  than  profit,  shall  be  personally 
liable  for  all  debts  of  the  corporation  by  them  contracted.  (April  17,  1854,  52  v.  44, 
§  78.) 


Liability  when  stock  is  issued. 

The  trustees  of  a  corporation  not  for  profit 
are  liable  for  all  its  debts  by  them  contracted, 
notwithstanding  its  articles  of  incorporation 
contain  a  provision  for   capital   stock   and   a 


declaration  that  it  is  intended  to  promote  the 
prosperity  of  the  city  in  which  it  is  located. 
—  Snyder  v.  Chamber  of  Commerce,  53  Oh. 
St.   1    (1895). 


General  Corporation  Law. 


165 


Capital  Stock  —  Increase  of,   $j   3262. 


Nature  of  liability. 

The  liability  of  trustees  under  this  section 
is  secondary,  collateral  and  conditional  to  the 
principal  obligation  of  the  corporation,  and 
can  be  resorted  to  by  creditors  only  in  case  01 
the  insolvency  of  the  corporation,  or  where 
payment  cannot  lie  en  forced  against  it  by  or 
dinary  process. —  Walbrecht  v.  I'ncketat,  9 
'W.   L.   B.   335    (1883). 

Action  to  enforce  liability. 

See  §  32(10  et.  seq. 

Nature  of  action  against  trustees. 

After  obtaining  judgment  against  the  cor- 
poration on  his  claim,  the  creditor  cannot 
maintain  an  action  against  the  trustees  as 
individually  liable  on  the  claim  which  would 
give  two  judgments  on  the  same  contract. 
The  plaintiff's  remedy  is  by  a  bill  in  equity  in 
the  nature  of  a  creditor's  bill  alleging  the  im- 
possibility of  making  the  claim  out  of  the  cor- 
poration and  asking  relief  from  the  trustees. 

—  Horstman  v.  Rix,  4  W.  L.  G.  131   (1859). 

What  are  debts  of  the  corporation. 

The  trustees  were  held  liable  in  a  case 
where  the  indebtedness  was  incurred  in  be- 
half of  the  corporation,  and  for  its  benefit. 
After  it  was  created  the  trustees  authorized 
the  giving  of  the  note  of  the  corporation  for 
the  indebtedness.  The  creditor  refused  to 
take  the  note  of  the  corporation,  but  took  the 
note  of  the  individuals,  which,  on  renewal 
later,  was  changed  into  the  note  of  the  cor- 
poration.—  Mahaffey  v.  Rogers,  10  O.  C.  C.  24, 
20    (1894);  s.  c,  6  C.  D.  88. 

What  are  debts  of  the  corpora  lion. 

The  certificates  of  membership  and  insur- 
ance under  whicli  the  insured  becomes  a  mem- 
ber of  a  corporation  formed  for  mutual 
insurance  under  §  3080,  R.  S.,  is  not  after 
loss  such  a  debt  of  the  corporation  as  makes 
the  trustees  liable  therefor  under  this  section. 

—  Manufacturers'  Fire  Ass'n  v.  Lynchburg 
Drug  Mills,  8  O.  C.  C.  112  (1893);  s.  c,  4  C. 
D.  350. 

What  are  debts  of  the  corporation. 
It  seems  that  a  mutual  fire  association   could 

enter  into  contracts,  as,  for  instance,  supplies, 


rent,    salai  ie  .    etc.,    foi     n  hich    t  he    ti 
would    be    lia  ble.      See     Manufacl  urei        Fire 
Ass'n  \.  Lynchburg  Drug  Mill-.  3  0.1     I     112 
I  1893)  :   s.  c.    i  C.   I).  350. 

Ultra  vires. 

A  member  of  a  mutual  ftre  association  can- 
m>i  hold  the  directors  liable  on  hie  policy  and 
certificate  of  membership  on  the  ground  thai 
ii  is  ultra  rires.  Manufacturers'  Fire  Ass'n 
v.  Lynchburg  Drug  Mill-.  8  1 1.  I  .  I  112 
I  1893)  :   b.  ■■■.,   M.I).  360. 

Res  adjudicata. 

Where  trustees  of  a  mutual  society  were 
sued  as  personally  liable  for  its  debt,  and 
judgment  was  rendered  for  them,  and  on 
suing  them  thereafter  as  a  corporation  (a 
mutual  society)  the  justice  who  heard  the 
first  case  can  testify  he  decided  against  their 
personal  liability  because  the  corporation  was 
not  insolvent,  thus  showing  there  was  do  res 
adjudicata. —  Mahaffey  v.  Rogers,  10  0.  I  ' 
24  (1894);  s.  c,  0  C.  D.  8s :  affirmed  without 
report,  37  W.  L.  B.  292   I  1897). 

Liability  in  mutual  societies  under  act 

of  1872. 

Section  95  of  the  general  corporation  act 
(S.  &  C.  310),  the  original  of  this  section, 
does  not  make  the  trustees  of  a  benefit  so- 
ciety incorporated  under  the  act  of  1  s7ii  per 
sonally  liable,  though  no  stock  is  issued. — 
Strobridge  v.  Winchell,  7  Am.  L.  Rec.  7  4:; 
(1879)  ;  s.  c,  4  W.   L.    B.  408. 

Liability    in    insurance     companies     or- 
ganized under  §  3631-24  et  seq. 

The  trustees  of  a  company  organized  un- 
der §  3631-24  et  seq.  are  not  personally  lia- 
ble for  a  death  loss  upon  a  policy  issued  by 
the  company  while  they  were  in  office  as 
such  trustees,  but  the  policy  holders  and 
beneficiaries  under  such  policies  must  trust  to 
the  companies  and  the  protection  afforded 
them  bv  those  sections. —  Kelly  v.  Bender,  22 
O.   C.   C.    144    11901). 

Hospital     corporation      not     liable      for 
negligence  of  nurse. 

See  Conner  v.  Sisters  of  Poor,  7  X.  P.  ."U4 
(1900). 


§  3262.  INCREASE  OF  CAPITAL  STOCK. —  A  corporation  for  profit,  after  its 
original  capital  stock  is  fully  subscribed  for,  and  an  installment  of  ten  per  cent,  on 
each,  share  of  stock  has  been  paid  thereon,  or  a  corporation  not  for  profit,  having  a  cap- 
ital stock,  may  increase  its  capital  stock  or  the  number  of  shares  into  whicli  its  capital 
stock  is  divided,  by  the  unanimous  written  consent  of  all  original  subscribers,  if  done 
prior  to  organization,  and  after  organization  then  by  a  vote  of  the  holders  of  a  major- 
ty  of  its  stock,  at  a  meeting  called  by  a  majority  of  its  directors,  at  least  thirty  days' 
notice  of  the  time,  place  and  object  of  which  has  been  given  by  publication  in  some 
newspaper  of  general  circulation,  and  by  letter  addressed  to  each  stockholder  whose 
place  of  residence  is  known;  or  such  increase  may  be  made  at  any  meeting  of  the 
stockholders  at  which  all  the  holders  of  such  stock  are  present  in  person,  or  by  proxy, 
and  waive  in  writing  such  notice  by  publication  and  by  letter;  and  also  agree  in  writ- 


166 


Private  Corporations  in  Ohio. 


Capital   Stock  —  Preferred  —  Reduction  of,   etc.,    §§  3263,  3264. 

ing  to  such  increase,  naming  the  amount  of  increase  to  which  they  agree;  and  a  cer- 
tificate of  such  action  of  the  corporation  shall  be  filed  with  the  secretary  of  state. 
(March  11,  1872,  69  v.  24;  February  18,  1873,  70  v.  37;  R.  S.  1880;  February  16, 
1883,  80  v.  23;  May  11,  1886,  83  v.  134;  April  5,  1893,  90  v.  141.) 


■What  is   an  increase. 

The  sale  of  the  balance  of  the  stock  of  a 
company  left  after  the  original  subscription 
is  not  an  increase  of  stock. —  See  Sims  v. 
Street  R.  R.  Co.,  37  Oh.  St.  556,  504  (1882); 
Painesville  Nat.  Hank  v.  King  Varnish  Co., 
8  0.  C.  C.  563  (1894)  ;  s.  c,  4  C.  D.  511. 

Irregularities  in  issue. 

Irregularities  in  the  proceedings  to  increase 
the  stock  will  not  defeat  an  action  to  recover 
on  a  subscription  for  such  increased  stock  for 
the  purpose  of  paying  debts,  where  such  sub- 
scriber,  having  knowledge  of  the  facts,  acqui- 
esced until  the  companv  became  insolvent. — 
Clarke  v.  Thomas,  34  Oh.  St.  46  (1877).  See 
Tillinghast  v.  Bailey,  86  Fed.  46   (1897). 

Rights  when  whole  of  stock  not  taken. 

Where  stock  was  issued  by  a  mining  com- 
pany under  the  act  of  1877,  and  the  subscrib- 
ers refused  to  pay  for  a  part,  the  company 
has  the  right  to  dispose  of  such  stock  or  en- 
force the  agreement,  although  the  whole  of 
the  increased  stock  was  never  taken. —  Clarke 
v.  Thomas,  34  Oh.  St.  46  (1877). 

Right    of    mining   company   to   increase. 

An  increase  of  stock  by  a  mining  company 
in  1S68  was  governed  by  the  act  of  1854  (S.  & 
C.  369),  as  amended  in  1S65  (S.  &  C.  237).— 
See  Clarke  v.  Thomas,  34  Oh.  St.  46  (1877). 

Increase  under  acts  of  1854  and   1865. 

See  Turnbull  v.  Pomeroy  Salt  Co.,  24  W.  L. 
B.  133   (1S90). 

Taxation. 

Stock  in  a  corporation  is  the  individual 
property  of  the  holder.     If  the  corporation  in- 


creases its  capital,  and,  instead  of  dividing  the 
increase  among  the  shareholders,  sells  the  new 
stock  at  a  premium,  this  premium  divided 
among  the  original  shareholders  is  not  a  divi- 
dend, but  their  private  gain,  and  is  not  sub- 
ject to  a  tax  on  dividends  or  profits. —  State 
v.  Franklin  Bank,  10  Oh.  91    (1840). 

Stock      must      be      distributed      ratably 
among  existing  stockholders. 

Each  stockholder  has  a  right  to  an  oppor- 
tunity to  subscribe  for  and  take  the  new  or 
increased  stock  in  proportion  to  the  old  stock 
held  by  him. —  See  State  v.  Franklin  Bank, 
10  Oh.  91    (1840). 

Rights    of    existing    stockholders    when 
stock  sells  for  a  bonus. 

See  State  v.  Franklin  Bank,  10  Oh.  91 
(1840). 

Stock  was  required  to  be  fully  paid  be- 
fore increase  under  old  law. 

The  existing  capital  stock  of  a  company 
must  be  fully  paid  up  before  the  right  to  in- 
crease its  capital  stock  accrues.  This  is  a 
condition  precedent  to  such  right,  and  means 
that  the  stock  shall  be  actually  paid  for  in 
full  at  its  par  value,  and  a  corporation  cannot 
work  a  fraud  upon  the  law  by  disposing  of  its 
shares  at  less  than  par  under  the  form  of  a 
sale,  instead  of  by  way  of  subscription. — 
Peter  v.  Union  Mfg.  Co.,  56  Oh.  St.  181,  200 
(1897). 

This  section  is  cited  in  Snvder  v.  Chamber 
of  Commerce,  53  Oh.  St.  11  (1895);  Miller  v. 
Ratterman,  47  Oh.  St.  157   (1890). 


§  3263.  MAY  INCREASE  BY  PREFERRED  STOCK.—  Upon  the  assent  in  writ- 
ing of  three-fourths  in  number  of  the  stockholders  of  any  corporation,  representing  at 
least  three-fourths  of  its  capital  stock,  the  corporation  may,  to  increase  its  capital 
stock,  issue  and  dispose  of  preferred  stock,  as  is  authorized  in  section  3235a;  and  upon 
any  such  increase  of  stock,  a  certificate  shall  be  filed  with  the  secretary  of  state,  as  is 
provided  in  the  preceding  section.  (May  12,  1902,  95  v.  624;  March  6,  1874,  71  v. 
10,  §§  1,  2.) 

See  notes  to  §  3235. 

Cannot   issue   part   preferred   and    com- 
mon. 

Power  to  make  the  increase  of  stock  pre- 
ferred  -tuck  does  not  include  the  power  to 
issue  partly  preferred  and  partly  nonpreferred 
stock.  Covington,  etc..  Bridge  Co.  v.  Sar- 
gent. 1  C.  S.  C.  E    354   (1871). 


May  prefer  unissued  stock. 

The  existing  shareholders  may  give  a  pref- 
erence to  subscribers  to  unissued  stock  for  the 
purpose  of  inducing  subscriptions. —  See 
Painesville  ATat.  Bank  v.  King  Varnish  Co.,  8 
0.  C.  C.  563  (1894) ;  s.  c,  4  C.  D.  511. 


?  3264.  REDUCTION  OF  CAPITAL  STOCK.—  The  board  of  directors  of  any  such 
corporation  may,  with  the  written  consent  of  the  persons  in  whose  names  a  majority 
of  the  shares  of  the  capital  stock  thereof  stands  on  the  books  of  the  company,  reduce 


General  Corporation  Law. 


167 


Bonds,  Coupon,  etc. —  Corporate  Property,  etc.,  SS  3265,  3266. 


the  amount  of  its  capital  stock  and  the  nominal  value  of  all  the  shares  thereof,  and 
issue  certificates  therefor;  but  the  rights  of  creditors  shall  not  be  affected  or  impaired 
thereby;  and  a  certificate  of  such  action  shall  be  filed  with  the  secretary  of  state. 
(May  11,  1886,  83  v.  134;  R.  S.  1880;  April  3,  1868,  65  v.  51,  §§  1,  2,  3,  4,  5  |  S.  &  C. 
309;  S.  &  S.  242J;  May  1,  1852,  50  v.  274,  §  74.) 

Purchase  of  shares  by  the  corporation,  the  company  may  have  marked  the  certificate  - 

A  purchase  of  its  own  shares  by  a  corpora-  "canceled."      Morgan    v.    Lewis,    Mi    Oh.    si. 

tion  to  protect  a  debt  due  it  is  not  a  reduction  1,  7   (isss).     Sec  Allen  v.  De   Lagerberger,  _'<i 

of   its  capital   stock,   though   the   secretary   of  \V.    I..    II.  :;iis    (1888). 

§  3265.  CHANGE  OF  BONDS  AUTHORIZED.— A  corporation  which  has  law- 
fully issued  or  may  hereafter  lawfully  issue  its  registered  or  coupon  bonds,  may, 
upon  request  of  the  holder  thereof,  change  such  registered  bonds  into  coupon  bonds, 
or  such  coupon  bonds  into  registered  bonds  either  by  substitution,  or  proper  indorse- 
ment thereon;  and  all  liens,  securities,  and  rights  which  existed  or  accrued  to  such 
original  bonds  shall  continue  to  such  substituted  or  indorsed  bonds,  the  same  as  if 
such  substitution  or  indorsement  had  not  been  made.  (April  7,  1876,  73  v.  123, 
§§   1,  2.) 

§  3266.  CORPORATE  PROPERTY  TO  BE  EMPLOYED  ONLY  FOR  THE 
OBJECTS  OF  THE  CORPORATION.—  No  corporation  shall  employ  its  stocks,  means, 
assets,  or  other  property,  directly  or  indirectly,  for  any  other  purpose  whatever  than 
to  accomplish  the  legitimate  objects  of  its  creation.  (May  1,  1852,  50  v.  274,  S  73 
[S.  &  C.  309].) 


Powers  of  corporations. 

See  §  3239,  notes. 

Misappropriations  and  remedies. 

See  §  3248,  notes. 

Preferences    by    insolvent    corporations. 

A  corporation  for  profit,  organized  under 
the  laws  of  this  state,  after  it  has  become  in- 
solvent and  ceased  to  prosecute  the  objects 
for  which  it  was  created,  cannot  by  giving 
some  of  its  creditors  mortgages  on  the  cor- 
porate property  to  secure  antecedent  debts 
without  other  consideration,  create  valid 
preferences  in  their  behalf  over  the  other  cred- 
itors, or  over  a  general  assignment  thereafter 
made  for  the  benefit  of  creditors. —  Rouse  v. 
Merchants'  Nat.  Bank,  46  Oh.  St.  493   (1889). 

Exception  —  preference    by    going    con- 
cern. 

A  mortgage  executed  by  a  corporation  to 
secure  a  pre-existing  debt  is  not  necessarily 
invalid  for  the  reason  that  the  company  was 
known  to  be  insolvent,  where  the  company  is 
at  the  time  in  the  possession  of  its  property, 
and  in  active  prosecution  of  its  business,  and 
intends  to  continue  therein  unless  prevented 
by  other  creditors:  and  the  object  of  the  mort- 
gage is,  on  its  part,  not  to  give  a  preference 
to  one  creditor  over  another,  but  simply  to 
obtain  an  extension  of  credit. —  Ford  v.  Lam- 
son,  17  O.  C.  C.  539  (1899)  :  s.  c,  9  C.  D.  374: 
Damarin  v.  Huron  Iron  Co.,  47  Oh.  St.  581 
(1890);  Bosche  v.  Toledo  Display  Horse  Co., 
14  0.  C.  C.  289  (1897)  ;  s.  c,  7  C.*D.  374. 

Same   subject. 

A  going  concern  cannot  create  and  give  to 
one  of  its   creditors   a   secret  inchoate   prefer- 


ence, and  let  its  other  creditors  cortinue  to 
extend  credit  to  it.  and  linn  alter  insolvency 
let  such  creditor  come  in  ami  make  hi-  claim. 
—  Benedict  v.  Market  Nat.  Bank,  4  \.  I'.  231 
(1897),  19  O.  C.  C.  408;  s.  c,  0  Dec.  320. 

Same   subject. 
Even  a  mortgage  or  preference  given  by  an 

insolvent  but  going  concern  i-  invalid  if  given 
with  intent  to  create  a  preference. —  Reming- 
ton v.  Central  Press,  etc.,  Co.,  3  X.  P.  _'5S 
(1896);  s.  c,  4  Dec.  337. 

Preference  by  Ohio  corporation  in  for- 
eign state  —  remedy. 
Quaere,  can  an  Ohio  corporation,  having  no 

charter  power  to  prefer  a  creditor,  make  a 
preference  in  a  foreign  state.  See  a-  to  rights 
and  remedies.  Kit  Carter  Cattle  *  0  \.  Mc- 
Gillin,  7  N.  P.  575  (1900);  8,  c,  21  0.  «  .  I  . 
210. 

Agreement  to  execute  mortgage. 

An  agreement  by  a  bank  that  it  would  ad- 
vance a  corporation  money  to  a  certain 
amount  to  enable  it  to  carry  on  its  busi- 
ness, provided  that  such  firm  at  any  time  the 
bank  should  deem  it  necessary  should  execute 
to  it  a  mortgage  upon  the  persona]  property 
of  such  firm  and  eventually  such  mortgage 
was  so  executed,  i-  nol  a  preference  by  an  in- 
solvent corporation. —  Campbell,  etc.,  Mfg. 
Co.  v.  Bellman  Bros.  Co.,  11  O.  C.  C.  360 
(1896):  s.  c,  5  C.  D.  389. 

Preference  by  cognovit  note. 

A  judgment  taken  on  a  cognovit  note  given 
by  a  corporation  several  month-  before  it 
made  an  assignment,  but  on  which  judgment 
was   taken,   execution   issued   and   levy    made 


168 


Private  Corporations  in  Ohio. 


Directors,  Change  of  Number  of  —  Annual  Statements,  etc.,   §§  3267-3269. 


only  a  few  hours  before  the  deed  of  assign- 
ment of  the  corporation  was  hied,  is  valid,  and 
gives  a  good  Lien,  and  is  not  affected  by  a 
resolution  of  the  directors  on  the  day  of  the 
assignment  authorizing  the  president  to  con- 
fess judgment— In  re  Winchell  Mfg.  Co.,  1 
\.  P.  l: 36  (1894)  ;  s.  c,  1  Dec.  310. 

When  is  corporation  insolvent. 

A  corporation  i-  insolvent  when  it  is  unable 
to  pay  its  debts  in  the  ordinary  course  of 
business  as  they  mature. —  Remington  v.  Cen- 
tral Press,  etc..' Co.,  3  N.  P.  258  (1896);  s.  c, 
4  Dec.  337. 

Ohio    rule    followed    by    United    States 
supreme  court. 

In  cases  involving  the  right  of  an  insolvent 
Ohio  corporation  to  make  a  preference,  the 
United  States  courts  will  follow  the  rules 
laid  down  by  our  courts.— Smith  Middlings 
Purifier  Co.  v.  McGroarty,  24  W.  L.  B.  110 
(1800),  130  U.  S.  237. 

Preference  to  director. 

An  insolvent  corporation  with  no  expecta- 
tion of  being  able  to  continue  its  business, 
cannot  rightfully  secure  or  pay  debts  owing 
to  its  directors.— Ford  v.  Lamson,  17  0.  C.  C. 


539    (18991;    s.    c,    9    C.    D.    374:    Cheney    v. 
Maumee  Cycle  Co.,  20  O.  C.  C.  19  (1900). 

Preference   not  ground  for  attachment. 

A  wrongful  preference  by  a  corporation  of 
one  creditor  does  not  furnish  a  ground  for 
attachment  by  another  creditor. —  Stone  v. 
Bank,  8  O.  C.  C.  636  (1894) ;  s.  c,  4  C.  D.  354. 

Transfer   is    voidable,    remedy    of    cred- 
itors. 

A  transfer  creating  a  preference  is  not  void, 
but  voidable  only,  and  the  remedy  of  creditors 
is  to  treat  the  transferee  as  a  trustee  for  the 
benefit  of  all  the  creditors  and  invoke  the  aid 
of  the  court  to  enforce  the  trust.  A  levy  or 
attachment  cannot  be  made  by  creditors  on 
the  property  transferred. —  Bryant  v.  John- 
son, 12  O.  C.  C.  102  (1896)  ;  s.  c,  5  C.  D.  333; 
Phillips  v.  Ammon-Stevens  Co.,  2  N.  P.  187 
(1895)  ;  s.  c,  3  Dec.  418. 

Attachment  by  creditor. 

An  attachment  and  levy  by  a  creditor  on 
the  assets  of  a  corporation  carrying  on  its 
business  although  in  fact  insolvent,  will  give 
a  valid  lien  on  the  assets  levied  upon. —  Ford 
v.  Lamson,  17  O.  C.  C.  539  (1899);  s.  c,  9  C. 
D.  374. 


§  3267.  CHANGE  IN  NUMBER  OE  DIRECTORS.—  A  company  may,  by  a  vote 
of  a  majority  of  its  stock,  at  any  regular  meeting  of  the  company,  increase  the  num- 
ber of  directors  to  any  number  not  greater  than  fifteen,  or  decrease  the  number  before 
or  after  such  increase  to  any  number  not  below  five;  provided,  that  at  any  stockhold- 
ers' meeting,  called  in  the  manner  and  as  provided  in  section  three  thousand  two 
hundred  and  forty-six,  and  notice  of  which  has  been  given  in  accordance  with  the 
provisions  thereof,  any  corporation,  incorporated  for  manufacturing  purposes,  may, 
by  a  vote  of  a  majority  of  its  stock,  increase  the  number  of  its  directors  as  herein- 
before provided,  who  shall  hold  their  offices  respectively  until  the  next  annual  elec- 
tion for  directors,  and  until  their  successors  are  elected  and  qualified.  (May  15,  1886, 
83  v.   163;  R.  S.   1880.) 

See  Mower  v.   Staples,  32  Minn.  284   (1884). 

Term  of  office  cannot  be  shortened. 

The  tenure  of  office  of  directors  elected  at 
a  regular  meeting  cannot  be  shortened  by  a 
code   of  regulations  adopted   after   their  elec- 

§  3268.  ANNUAL  STATEMENT  FOR  STOCKHOLDERS.— Every  corporation 
organized  under  the  laws  of  this  state  shall  make  a  statement  annually  of  its  finan- 
cial condition,  setting  forth  its  assets  and  liabilities,  and  shall  furnish  to  each  stock- 
holder a  true  copy  of  the  same,  together  with  a  list  of  the  stockholders  thereof  and 
their  place  of  residence.     (R.  S.    1880.) 

§  3269.  WHEN  PROVISIONS  OF  THIS  CHAPTER  DO  NOT  APPLY.—  The  pro- 
visions of  this  chapter  do  not  apply  when  special  provision  is  made  in  the  subsequent 
chapters  of  this  title,  but  the  special  provision  shall  govern,  unless  it  clearly  appear 
that  the  provisions  are  cumulative;  and  no  corporation  shall  by  anything  in  this 
title  be  relieved  from  any  liability  in  actions  now  pending  or  causes  of  action  hereto- 
fore accrued.     (R.  S.  1880.) 


tion,  nor  by  decreasing  the  number  of  di- 
rectors.—  Lutterby  v.  Herancourt  Brewing 
Co.,  12  Dec.  67   (1901). 


See  State  v. 
347  (1S82). 


Long,  48  Oh.  St.  509  (1891);  State  v.  Pioneer  Live  Stock  Co.,  38  Oh.  St. 


General  Corporation  Law 


169 


Dividends,  etc.,  g  3269-1. 


§  3269-1.  Sec.  1.  CORPORATE  DIVIDENDS  TO  BE  PAID  FROM  SURPLUS 
PROFITS  ONLY. —  Be  it  enacted,  etc.,  that  it  shall  not  be  lawful  for  the  directors  of 
any  corporation  organized  under  the  laws  of  this  state  to  make  dividends  except  from 
the  surplus  profits  arising  from  the  business  of  the  corporation.  (April  11,  1888,  85 
v.  182.) 


What  are  dividends. 

Dividends  in  a  company  consist  of  that  por- 
tion of  its  profits  which  the  directors  separate 
from  the  general  stock,  and  apply  to  the  bene- 
fit of  the  stockholders. —  State  v.  Farmers' 
Bank,  11  Oh.  94  (1841). 

Same   subject. 

The  term  "  dividend,"  while  usually  applied 
to  the  distribution  of  the  profits  among  the 
stockholders,  is  equally  applicable  to  a  distri- 
bution of  a  part  or  the  whole  of  the  capital 
of  the  company. —  Larwill  v.  Burke,  19  O.  C. 
C.  450    (1900);   s.  c,   19  0.  C.  C.  513. 

Payment  of  interest  or  dividends  out  of 
capital. 

A  company  has  no  power  to  pay  interest  or 
dividends  on  its  stock  out  of  its  capital  stock, 
and  a  contract  so  to  do  cannot  be  enforced. — 
Painesville,  etc.,  R.  R.  Co.  v.  King,  17  Oh.  St. 
534  (1867);  Ohio  College,  etc.  v.  Rosenthal, 
45  Oh.  St.  183,  194  (1887);  Miller  v.  Ratter- 
man,  47  Oh.  St.  141,  158  (1890);  Ryan  v. 
Miami,  etc.,  Ry.  Co.,  10  A.  L.  R.  263  (1881); 
Wood  v.  Pearce,  2  Dis.  411   (1859). 

Guaranty     of     dividends     on     preferred 
stock. 

A  general  guaranty  of  dividends  by  a  rail- 
road company,  on  its  preferred  stock,  is  not  a 
guaranty  of  dividends  in  any  event,  but  only 
in  the  event  that  dividends  are  earned. — 
Miller  v.  Ratterman,  47  Oh.  St.  141   (1890). 

Reservation   of  dividends. 

At  the  time  of  the.  sale  and  transfer  of 
stock  no  valid  reservation  of  future  dividends 
can  be  made. —  Marble  v.  Van  Wert  Nat. 
Bank,  3  O.  C.  C.  464  (1888)  ;  s.  c,  2  C.  D.  265. 

To  whom  dividends  are  payable. 

Dividends  are  prima  facie  payable  to  the 
registered  stockholders,  and  a  company  will 
be  protected  in  a  payment  so  made  in  the 
absence  of  notice  of  equitable  titles.  But 
where  a  person  holds  a  full  and  perfect  equi- 
table title  to  stock,  of  which  the  corporation 
has  notice,  he  is  also  entitlea  in  equity  to  the 
dividends  thereafter  accruing  upon  it. —  Cleve- 
land, etc.,  R.  R.  Co.  v.  Robbins.  35  Oh.  St.  4S:? 
(1880)  ;  Conant  v.  Seneca  County  Bank.  1  Oh. 
St.  298   (1853). 

When     husband's     creditors    can    reach 
wife's  profits. 

Although  at  a  wife's  request  her  husband 
attended  to  the  management  and  control  of 
a  corporation  in  which  she  was  interested,  and 
by  his  skill  and  labor  helped  to  produce  valu- 
able results,  property  bought  with  money 
coming  from  her  share  of  the  profits,  cannot 


he  subjected  to  the  payment  of  tin-  lm-band'a 

debts.—  See    First,    Nat.    Hank    v.    Rice,    22    0. 
C.  C.  183    (1900). 

Stock  dividends  not   capital. 

By  the  terms  of  the  act  of  1875  (72  v.  143), 
no  reduction  of  the  freight  and  passenger 
rates  of  a  railroad  company  could  be  made  by 
the  legislature  unlesa  its  nit  profits  exceeded 
ten  per  cent,  on  its  capital.  Held,  thai  in  de- 
termining what  profits  had  been  made,  stock 
dividends  cannot  be  considered  ;i-  capital. — 
Iron  Rv.  Co.  v.  Furnace  Co.,  49  Oh.  St.  102 
(1892).* 

Dividends  in  insurance  company. 

A  stockholder  in  a  joint  insurance  company, 
who  has  failed  to  pay  an  assessment  on  his 
stock,  made  to  bring  the  assets  of  the  com- 
pany up  to  the  amount  of  capital  stock  re- 
quired by  law.  is  not  entitled  to  payment  of 
dividends  afterward  declared  by  such  com- 
pany until  he  has  paid  such  assessment.  It  is 
proper  for  the  company  to  credit  the  amount 
of  the  dividend  against  the  unpaid  a 
ment  standing  charged  against  his  stock  on 
its  books. —  Rhodes  v.  Equitable  Life  [ns. 
Co.,  3  O.  C.  C.  501  (18S8);  s.  c,  2  C.  D.  288; 
affirmed  27  W.  L.  B.  160. 

Lien  of  company  on  dividends. 

See  Bellevue  Bank  v.  Bigbee,  4  O.  C.  C.  222 

(1889)  ;  s.  c,  2  C.  D.  512;  affirmed  28  W.  L.  B. 
336. 

Dividends  due  the  state. 

See  Sevmour  v.  Milford,  etc.,  Turnpike  Co., 
10  Oh.  476   (1841). 

Taxation  of  dividends. 

See  State  v.  Farmers'  Bank,  11  Oh.  94  (1841). 

Bequest  of  dividends. 

An   unconditional   bequest    of   dividend 

stock    is   a    bequest    of    the   stock. —  Collier   v. 
Collier,  3  Oh.  St.  369   (1854). 

Title  to  earnings. 

The  net  earnings  of  a  corporation  are  the 
property  of  the  corporation  until  such  time  as 
a  dividend  is  declared,  dividing  the  surplus 
among  its  stockholders. —  Adams  v.  Shields. 
17  0.  C.  C.  120  flSOsn  :  s.  c.  9  C.  T>.  558;  Mar- 
ble v.  Van  Wert  Xat.  Bank,  3  Oh.  C.  C.  464 
(1SSS)  ;  s.  c..  2  C.  D.  265. 

Scrip  dividends. 

As  to  dividends  paid  by  scrip  certificates 
payable  in  money  or  representing  stock,  see 
Adams  v.  Shields*.  17  O.  C.  C.  129  (1S9S)  ;  s.  c, 
9  C.  D.  558. 


170 


Private  Corporations  in  Ohio. 


Dividends  —  Surplus  Profits,  etc.,  §§  3269-2-3269-4. 


Dividends  follow  stock. 

Where  the  right  to  dividends  is  in  ques- 
tion as  between  a  pledgee  of  stock  and 
attaching  creditors,  the  dividends  follow  the 
stock.— Norton  v.  Norton,  43  Oh.  St.  509 
(1885). 

When  dividends  do  not  follow  stock. 

See  Citv  of  Ohio  v.  Cleveland,  etc.,  R.  R. 
Co..  6  Oh".  St.  489    (1856). 

Guaranty  of  dividends  by  third  person. 

Where  a  person  subscribes  for  stock  in 
a  company  relying  on  the  verbal  promise  of 
another  that  the  stock  would  earn  a  divi- 
dend of  fifteen  per  cent,  within  one  year,  the 
contract  is  not  within  the  statute  of  frauds. 
—  Moorehouse  v.  Crangle,  36  Oh.  St.  130 
(1880). 


Injunction    against    payment    of    divi- 
dends. 

An  injunction  against  the  payment  of  divi- 
dends will  not  be  granted  on  account  of  the 
intention  of  the  directors  to  pay  dividends  on 
stock,  the  genuineness  of  which  is  questioned, 
when  such  stock  is  only  a  small  fraction  of 
the  whole  stock,  and  it  does  not  appear  that 
the  payment  will  irreparably  injure  the  plain- 
tiff.—  Robison  v.  Cleveland,  etc.,  Ry.  Co.,  5 
N.  P.  293,  306  (1898);  s.  c,  7  Dec.  312. 

Statute  of  limitations.    - 

An  action  for  dividends  payable  on  demand 
is  not  barred  until  there  has  been  a  demand 
and  refusal.—  Larwill  v.  Burke,  19  O.  C.  C. 
450,  513   (1900). 

Action  for  dividends  is  one  at  law. 

See  Larwill  v.  Burke,  19  O.  C.  C.  450,  513 
(1900). 

§  8269-2.  Sec.  2.  UNPAID  INTEREST  DUE  CORPORATION  NOT  TO  BE 
INCLUDED  IN  PROFITS.—  In  the  calculation  of  the  profits  of  any  corporation  pre- 
vious to  a  dividend,  interest  then  unpaid,  although  due,  on  debts  owing  to  the  com- 
pany, shall  not  be  included.      (April  11,  1888,  85  v.  182.) 

§3269-3.  Sec.  3.  SURPLUS  PROFITS;  HOW  ASCERTAINED;  PROHIBITING 
ADVERTISEMENT  OF  CAPITAL  NOT  SUBSCRIBED  AND  PAID  IN.— In  order 
to  ascertain  the  surplus  profits,  from  which  alone  a  dividend  can  be  made,  there 
shall  be  charged  in  the  account  of  profit  and  loss,  and  deducted  from  the  actual 
profits  — 

1.  All  the  expenses  paid  or  incurred,  both  ordinary  and  extraordinary,  attending 
the  management  of  the  affairs  and  the  transaction  of  the  business  of  the  corporation. 

2.  Interest  paid,  or  then  due  or  accrued  on  debts  owing  by  the  corporation. 

3.  All  losses  sustained  by  the  corporation,  and  in  the  computation  of  such  losses, 
all  debts  owing  to  the  corporation  shall  be  included  which  shall  have  remained  due 
without  prosecution,  and  no  interest  having  been  paid  thereon  for  more  than  one  year, 
or  on  which  judgment  shall  have  been  recovered,  and  shall  have  remained  for  more 
than  two  years  unsatisfied,  and  on  which  no  interest  shall  have  been  paid  during  that 
period;  and  no  such  corporation  shall  advertise  a  larger  amount  of  capital  stock  than 
has  actually  been  subscribed  and  paid  in;  also,  shall  not  advertise  a  greater  dividend 
than  what  has  been  actually  earned  and  credited  or  paid  to  its  stockholders  or  mem- 
bers.    (April   11,   1888,  85  v.   182,   183;  April  10,   1889,   86  v.  228.) 

§  3269-4.  Sec.  4.  PENALTY  FOR  VIOLATION  OF  SECTION  3.—  Every  director 
who  shall  violate,  or  be  concerned  in  violating,  any  provision  in  the  preceding  sec- 
tions of  this  act  contained,  shall  be  liable  personally  to  the  creditors  and  stock- 
holders respectively  of  the  corporation  of  which  he  shall  be  a  director,  to  the  full 
extent  of  any  loss  they  may  respectively  sustain  from  such  violation.  (April  11, 
1888,  85  v.  182,  183.) 


Wrongful   payment  of   dividends. 

See  Excelsior  Water,  etc.,  Co.  v.  Pierce,  90 
Cal.  1.31  (1891);  Braun  v.  Riggle,  7  Ky.  Law 
Rep.  519  (1880). 

Advertisements  as  to   stock   subscribed, 

etc. 

Where  directors  of  a  corporation  caused  a 
not icr>  to  ho  published  that  they  and  the 
stockholrlors  wore  personally  responsible  for 
the  debts  of  the  company,  when  the  charter 


did  not  make  them  so  responsible,  a  creditor 
of  the  corporation  who  extended  credit  to  it 
on  the  faith  of  such  notice  may  maintain  an 
action  against  the  directors  for  deceit. — 
Westervelt  v.  Demorest,  46  N.  J.  Law,  37 
(1884).  See  Cross  v.  Sackett.  16  How.  Pr. 
(N.  Y.)  62  (1858):  Cazeaux  v.  Mali,  25 
Barb.  (N.  Y.)  (1857)  ;  Morse  v.  Swits,  19  How. 
Pr.  (N.  Y.)  275  (1859);  Salmon  v.  Richardson, 
30  Ccnn.  360  (1862)  ;  Fenn  v.  Curtis,  23  Hun, 
384  (1881).     See  notes  to  §  3248. 


PART  IV. 

RAILROAD  CORPORATIONS. 

§  3270.  General  powers. 

§3271.  Location  of   terminus. 

§  3272.  Change  of  route. 

§  3273.  Change  to  be  certified  to  secretary  of  state. 

§  3274.  Mortgage  covers  line  as  changed. 

§  3275.  When  and  how  route  may  be  changed. 

§3276.  Company  liable  for  damages  and  certain  subscriptions  canceled. 

§  3277.  Change  of  location. 

§  3278.  When  land  may  be  appropriated  to  make  change. 

§  3270.  PowTers  in  adjoining  state. 

§  3280.  Branch  roads. 

§  3281.  Power  to  appropriate  land. 

§3282.  Powers  to  hold  land. 

§  3283.  Use  of  streets ;  how  obtained. 

§  3284.  Right  to  ei'oss  country  roads ;  divert  roads  and  streams. 

§  3285.  May  do  toll-bridge  business. 

§  3286.  Powers  to  issue  bonds. 

§  3286-1.  Power  of  narrow-gauge  roads. 

§  3287.  Interest,  security,  extent  of  power. 

§  3288.  Nature  of  mortgage. 

§  3289.  Record  of  mortgage. 

§  3290.  Power  of  directors  to  sell  bonds. 

§  3291.  Transfer  books  in  foreign  states. 

§  3292.  Vice-president. 

§  3293.  Treasurer. 

§  3294.  Change  of  number  of  directors. 

§  3295.  Classified  directors  at  stockholders'  meeting. 

§  3296.  Classification  of  directors  at  annual  elections;  who  may  vote. 

§  3297.  Classification  of  directors.     Rights  of  creditors. 

§  3298.  Subscriptions  conditioned  on  completion  of  road. 

§  3299.  When  property  exempt  from  execution. 

§  3300.  Power  to  aid,  lease  or  purchase  other  roads. 

§  3301.  Assent   of   stockholders  — ■  rent. 

§  3302.  Rights  of  non-assenting  stockholders. 

§  3303.  Arbitration. 

§  3304.  Notice  of  arbitration. 

§  3305.  Security  for  rent  —  liabilities. 

§  3306.  Extension  of  line. 

§  3307.  Increase  of  stock. 

§3308.  Stockholders'  meeting:   notice,  vote. 

§  3309.  Common  or  preferred  stock ;  conditions. 

§  3309a.  Bond  issues  by  consolidated  and  other  companies. 

§  3309b.  Classification  of  stock. 

§  3310.  Facts  to  be  certified  to  secretary  of  state. 

§  3310-1.  Electricity  as  motive  power. 

§  3311.  Principal  office;  where  established. 

§  3313.  Securities  sold  to  directors  under  par;  void. 

§  3314.  Liability  of  directors  for  mismanagement. 

[171] 


172  Private  Corporations  in  Ohio. 


§  3315.         Certain  persons  ineligible  to  office. 

§  3310.         Acts  of  such  directors  void,  penalties. 

$3317.         How  authority  obtained  to  bridge  canals  or  navigable  waters. 

§  331S.         Established  bridges. 

§  3319.         Enforcement  by  attorney-general. 

§  3320.         Passenger  trains  must  stop  at  certain  stations. 

§3321.         Taxes  on  land  occupied  as  right  of  way. 

§  3321-1.     Posting  time  of  arrival  of  trains. 

§  3321-2.     Penalties  for  violation. 

§  3321-3.     Waiting  rooms  at  railway  stations. 

$  3321-4.     Duty  of  commissioner  of  railroads. 

§  3321-5.     Penalty. 

§  3322.         Right  of  way  papers  to  be  recorded. 

§  3322a.       Taxation  of  right  of  way. 

§  3323.        Must  erect  sign  boards  at  road  crossings. 

§  3324.         Fences  along  tracks,  crossings,  cattle  guards,  construction,  by  landowners  at  ex- 
pense of  company. 

§  3325.         When  landowners  may  construct  fence  a-t  company's  expense. 

§  3326.         Company  to  keep  fence  in  repair. 

§  3327.         When  private  crossings  must  be  built. 

§  3328.         When  landowner  may  build  at  company's  expense. 

§  3329.         When  five  preceding  sections  do  not  apply. 

§  3330.        When  company  may  build  fence  at  landowner's  expense. 

§  3331.        Penalty  for  not  constructing  fence. 

§  3332.         Use  of  culvert  for  cattle  way. 

An  Act  —  To  provide  for  railroad  crossings,  authorizing  common  pleas  court  to  fix  conditions. 

§  3333.         Railroad  crossings;  how  made;  crossings  of  trains,  regulations. 

§  3334.        Rules  to  be  made  and  published. 

§  3335.         Penalties  for   violation  of  §  3333. 

§  3336.         Signals  at  railroad  crossings. 

§  3337.         Penalties  for  violation  of  preceding  section. 

§  3337-1.     Railroad  bridge  over  streets. 

§  3337-2.     Council  may  prohibit  switching,  etc.,  on  such  bridges. 

§  3337-3.     Highway  and  street  crossings  must  be  built  and  repaired  by  company. 

§  3337-4.     Service  of  notice  on  railroad  companies. 

§  3337-5.     When  crossing,  etc.,  must  be  built. 

§  3337-6.     Crossing  must  be  kept  clear  of  snow. 

§  3337-7.     Penalties. 

§  3337-8.     Manner  of  altering  or  abolishing  grade  or  other  crossings. 

§  3337-9.     Resolution  as  to  alteration,  etc.,  publication  of  notice. 

§3337-10.  Ordinance  upon  decision  to  proceed;  agreement  between  municipality  and  railroad 
company. 

§  3337-11.  Purchase  or  appropriation  of  necessary  land  or  property. 

§  3337-12.  Apportionment  of  cost. 

§  3337-13.  Repairs. 

§  3337-  14.  Bonds  and  tax. 

§  3337-15.  Assessment  and  determination  of  damages. 
7-16.  Penalty. 

§  3337-17.  Grade  crossing  on  county-line  road. 

An  Act  —  To  abolish  grade  crossings  in  municipalities. 

§3337-18.  Required  height  of  bridges,  etc.,  over  railroad  tracks  —  cost. 
3337    L9.    Enforcement  of  act;  penalty;   injunction. 

?  3338.         Whole  track  to  be  of  uniform  gauge;  connections. 

§  3339.         When  tracks  must  be  used  in  common. 


I\.\l  LROAD    <  lORPORAl  [(  INS. 


173 


§3340.        When  connections  must  be  made. 

§3341.        When  companies  must  transport   cars  of  other  companies;   rate  for       itchin 

§  3342.         Ways  for  water  must  be  pro^  ided. 

§3343.        Proceeding  to  enforce  preceding  section. 

§3344.         When  the  probate  judge  may   let  the  work. 

§3345.        Sale  of  the  work  and  proceedings  thereon. 

§  3346.        Fees  of  officers  in  such  cases. 

§  3347.        Movable  bridge  between  passenger  cars  required. 

§3348.        Penalties  for  violation  of  preceding  Bection. 

§  3349.         When  two  preceding  sections  do  not  apply. 

§  3350.         Commissioner  of  railroads  must  enforce  certain  sections. 

§  3351.         Heating  apparatus  for  ears. 

§  3353.         How  passenger  cars  to  be  lighted. 

§3354.         Penalties  for  violating  certain  seel  ions. 

§3354—1.  Regulating  distance  from  station  platform  to  top  oflowesl  step  on  passenger  cars; 
penalty. 

§3354-2.     Equipment  of  passenger  trains  with  fire  extinguishers;   cost. 

§'3354—3.     Size,  etc.,  of  extinguishers. 

§3354—4.  Designation  of  cars  on  which  extinguishers  to  he  placed  and  place  and  manner  of 
attachment ;  penalty. 

§  3354-5.     Railroad  companies  to  erect  and  maintain  telegraph  or  telephone  wires. 

§  3354-6.     Forfeiture  of   charter;   penalty. 

§3355.        When  and  how  freight  ways  may  be  constructed. 

§  3356.         When  plan  of  freight  way  must  be  approved  by  commissioner. 

§  3357.         How  railroad  scrap  metal  shall  be  sold. 

§  3358.         Penalties  for  violation  of  last  section. 

§  3359.         What  is  the  evidence  of  title  to  such  scrap. 

§  3360.         When  a  mixture  of  such  scrap  deemed  a  confusion  of  goods. 

§  3361.         Company  may  replevy  scrap ;   proceedings  in  the  action. 

§  3362.         Penalties  for  obstructing  the  laying  of  a  track. 

§  3363.        When  and  how  a  company  may  dissolve. 

§  3364.         When  companies  must  cross  streams  on  same  bridge. 

§  3365.         Proceedings  to  appropriate  joint  use  of  bridge. 

§  3365-1.     Requiring  railroads  to  use  spark  arrester. 

§  3365-2.     Penalties. 

§  3365-3.     Railroad  companies  must  keep  right  of  way  free  from  combustible  material. 

§  3365-4.     "When  abutting  property  owner  may  remove. 

§  3365-5.  Liability  of  railroad  company  for  loss  or  damage  by  fire;  recovery;  evidence  of 
cause. 

§  3365-6.     Evidence  as  to  negligence. 

§  3365-7.     Attorney's  fee  as  to. 

§  3365-8.     Application  of  section  two. 

§  3365-9.  Employment  of  color-blind  persons  by  railroad  companies  forbidden,  except ;  ex- 
amination. 

§3365-10.  Penalty. 

§3365-11.  Requirements  of  conductors,  locomotive  engineers,  and  flagman;  as  to  flagman: 
saving  clause. 

§  3365-12.  Penalties. 

§  3365-13.  Duty  of  railroad  commissioners. 

§  3365-14.  Hours  of  service  of  certain  railroad  employees  limited;  exception. 

§  3365-15.  Penalty. 

§  3365-16.  Duty  of  railroad  commissioners. 

§  3365-17.  Engineers  addicted  to  drink  not  to  be  employed. 

§  3365-18.  Blocking  of    railway  frogs,  guard  rails,  etc. 

§  3365-19.  Penalty  for  failure  so  to  do. 


174 


Private  Corporations  in  Ohio. 


§3365  20. 
§  3365  21. 
§  3365-22. 
§  3365-23. 
§  3365  23a. 
§  3365  23b. 
§  3365-23c. 
§  3365-23d. 
g  3365-23e. 
§  3365-23f. 
§  3365-23g. 
§  3365-23h 
§  3365-23i. 
§  3365-24. 
§  3305-25. 
§  33G5-26. 
§  3365-27. 
§  3365-28. 
§  3365-29. 
An  Act  — 
§  3366. 
§  3367. 
§  3368. 
§  3369. 
§  3370. 
§  3371. 
§  3372. 
§  3373. 
§  3373-1. 
§  3373-2. 
§  3374. 
§  3375. 
§  3375a. 
§  3376. 
§  3377. 
§  3378. 
§  3378a. 

§  3378b. 


§  3378c. 
§  3378d. 
§  3378-1. 
§  3378-2. 
g  :;:;7s  3. 
§  337S-4. 
§  3379. 
g  3380. 
§  3380a. 
§  3381. 
§  3382. 
§  3382-1. 
§  3382-2. 


(  ertain  regulations  for  protection  of  railroad  employees. 

Defective  machinery  prima  facie  evidence  of  negligence. 

Superior  officer  and  fellow-servant  denned. 

Equipment  and  operation  of  railroad  cars  with  automatic  couplers  and  air  brakes. 

Semi-annual  report  to  be  made  by  railroad  companies. 

Inspector  of  automatic  couplers. 

Bond  and  oath. 

Salary   and   expenses. 

Duties. 

Penalty  for  failure  to  make  repairs  on  notice. 

Power  to  condemn  cars. 
.   Penalty  for  failure  to  comply  with  act. 

Penalty  against  officers  of  company. 
As  to  cars  constructed  or  repaired  after  July  1,  1893. 
Equipment  of  engines  with  power  brakes. 
Report. 
Penalty. 

Construction  of  overhead  wires. 

Duty  of  commissioners  of  railroads  and  telegraphs. 
To  require  full  crews. 

Fare  and  freight  to  or  from  points  competing  with  the  public  works. 
Tariff  of  rates  to  be  published,  and  how  changed. 
Certain  contracts  inhibited. 

When  trunk  roads  must  not  discriminate  between  other  roads. 
Must  forward  freight  by  line  named  by   shippers. 
Preceding  section  may  be  enforced  by  injunction. 
Not  to  discriminate  between  way  and  through  freight. 
Nor  against  points  in  the  state. 

Railroad  companies  must  furnish  equal  facilities  to  shippers  of  same  class;  damages. 
Message  for  passenger  delayed  by  accident  or  collision  must  be  sent. 
Rates  of  passenger  fare  prescribed. 
Rates  of  freight  prescribed. 
Riding  on  freight  trains. 

Penalties  for  violation  of  two  preceding  sections  or  of  sections  3340  and  3341. 
When  three  preceding  sections  do  not  apply. 
Rates  of  fare  and  freight  on  branch  roads. 

Certain  contracts  for  sale  of  railroad  property  not  valid  against  creditors  or  inno- 
cent purchasers  unless  recorded  or  copy  filed  with  secretary  of  state. 
In  written  contracts  for  leasing  such  property,  parties  may  provide  for  conditional 
sale  of  same;  parties  may  provide  that  the  property  shall  remain  in  the  lessor  or 
vendor  until  purchase  money  paid. 
Secretary  of  state  to  file  contracts;  his  fees,  etc. 
Construing  application  of  foregoing  sections. 

Authorizing  railway  companies  to  issue  storage  or  warehouse  certificate. 
Bicycle  as  baggage. 

Railroad  companies  required  to  furnish  bills  of  lading;  effect  of  such  receipt. 
Penalty. 

When  companies  whose  roads  arc  in  the  state  may  consolidate. 
Consolidation  of  domestic  with  foreign  railway  corporation. 
Consolidated  companies  may  consolidate. 

Proceedings   to  effect   such   consolidation. 
Effect  of  the  agreement  to  consolidate. 

Defects  in  consolidation  agreements;  how  cured;  proviso. 

Authorizing  the  curing  of  defects  in  the  consolidation  of  certain  railway  companies; 
proviso. 


Railroad  ( lORPORATIONS. 


175 


§3382-3.  Authorizing  the  curing  of  defects  in  certain   railroad   consolidation   agreemi 
proviso. 

§  3383.  Election  of  directors. 

g  3384.  Property  of  the  old  companies  vests  in  the  new. 

§  3384a.  Consolidated  companies  may  dispose  of  stock  and  bonds  acquired  by  consolidation. 

§  3384b.  Consolidated  company  may  issue  its  own  stock  in  lieu  of  purchase  monej  ;    ri 

franchises,  etc.,  of  railroad  acquired  by  purchase  rested  in  consolidated  company. 

§3385.  Principal  office  to  be   established;    as   to    directors   and    general   office. 

§  3386.  Actions  against  new  company. 

§  3387.  Taxation  of  road  partly  in  state. 

§  3388.  Stockholder  refusing  to  consolidate  to  be  paid  highest  market  price  or  must  arbi- 
trate. 

§  3388a.  Last  section  applies  only  to  domestic  corporations. 

§  3390.  Notice  to  be  given  of  application   for  appointment  of  arbitrators. 

§  3391.  Effect  of  the  agreement  of  consolidation  as  evidence. 

§  3392.  In  actions  against  new  company  certain  proof  dispensed  with. 

§  3392-1.  Two  or  more  companies  owning  a  railroad  may  make  division  of  interests  and  dis- 
pose of  same. 

§  3392-2.  Proceedings  when  such  companies  cannot  agree   upon  division. 

§  3392-3.  The  cost  of  additions  or  improvements;  how  paid. 

§  3392-4.  Partition  not  to  be  compulsory. 

§  3392-5.  Company  selling  interest  in  road  may  purchase  or  condemn  land  along  chartered 
route. 

§  3392-6.  To  which  companies  this  act  applies. 

§  3393.  When  proceedings  for  reorganization  may  be  had. 

§  3394.  Meeting  of  creditors  and  proceedings  thereat. 

§  3395.  What  must  be  certified  to  the  secretary  of  state. 

§  3396.  The  property  and  powers  of  the  new  company. 

§  3397.  Further  powers  of  the  new  company. 

§  3397a.  Issue  of  stock  or  securities  by  companies  organized  or  reorganized  under  agree- 
ments; terms  of  such  agreements  to  appear  on  stock  and  securities  issued;  right- 
of  holders. 

§  3398.  Lien  of  mortgages,  etc. 

§  3398a.  Lien  for  labor  performed  for  railroad  company. 

§  3398b.  How  such  lien   enforced. 

§  3398c.  In  case  of  sale,  court  to  retain  amount  of  lien. 

§  3398d.  What  to  be  done  in  case  judgment  recovered. 

§  3399.  These  provisions  applicable  to  other  corporations  —  foreign  corporations. 

§  3400.  The  property  mortgaged  may  be  sold   without  appraisement. 

§  3401.  When  creditors  of  companies  may  agree  on  capitalization. 

§  3402.  Secretary  of  state  to  publish  notice  of  the  agreement. 

§  3403.  Other  creditors  may   sign  the  agreement. 

§  3404.  Right  of  those  who  do  not  sign. 

§  3405.  When  the  court  to  make  order  touching  costs. 

§  3406.  Agreement  may  be  between  each  interest  and  the  company. 

§  3407.  When  the  road  is  used  by  two  companies. 

§  3408.  When  stock  or  bonds  are  held  in  a   fiduciary  capacity. 

§  3409.  When  a  company  may  poll  its  road-bed,  etc. 

§  3410.  The  transfer  to  be  by   deed. 

§  3411.  Two-thirds  in  interest  by  stockholders  must  consent. 

§  3412.  What  interest  dissenting  stockholders  may  retain. 

§  3413.  Title  to  property  vests  ;n  grantee. 

§  3414.  Certain   rights   of  way   forfeited. 

§  3415.  May  sue  and  be  sued  without  leave  of  court. 

§  3416.  Where  action  may  be  brought,  and  service. 


176 


Private  Corporations  in  Ohio. 


General  Powers,  etc.,  §  3270. 


§  3417.  Application  of  funds,  and  lien  thereon. 

§  3418.  Where  receiver  must   deposit  money. 

§  3419.  How  purchaser  of  railroads  may  acquire  franchise. 

§  3420.  Certain  roads  may  be  sold  at  judicial  sale. 

§  3421.  The  receiver  must  petition  therefor. 

§  3422.  Order  for  appraisement  of  road. 

J  3423.  Notice  of  sale  to  be  published. 

§  3424.  Confirmation  of  sale,  and  deed. 

§  3425.  How  proceeds   of  sale  distributed. 

§  3426.  Who  may  purchase  such  property. 

§  3420a.  Purchaser  of  railroad  at  judicial  sale  may  sell  same.     Grant  to  be  recorded. 

§  342Gb.  Railroad  company,  and  any  number  of  persons,  may  become  purchasers ;  purchasers 

may  become  incorporated  and  may  pay  in  stocks  and  bonds. 

§3427.  Appointment  of  railroad  police;  their  qualifications,    term  of  office,  and  revocation 

of  commission. 

§  342S.  Oath ;  record  of  commission ;  powers  and  liabilities   of  such  police. 

§  3429.  Power  of  such  police  to  enforce  regulations  of  road  and  make  arrests. 

§  3430.  Such  police  to  wear  badges,  when. 

§  3431.  Compensation  of  police. 

§  3432.  When  powers  cease. 

§  3433.  When  a  passenger  conductor  is  a  policeman. 

§  3434.  When  conductor  may  eject  a  passenger. 

§  3435.  When  he  may  arrest  a  passenger. 

§  343G.  Penalties  against  conductors  for  violations  of  certain  sections. 


§  3270.  GENERAL  POWERS. —  A  railroad  company  now  existing  or  hereafter 
created  may  maintain  and  operate,  or  construct,  maintain,  and  operate  a  railroad, 
with  a  single  or  double  track,  with  such  side  tracks,  turn-outs,  offices,  depots,  round- 
houses, machine  shops,  water  tanks,  telegraph  lines,  and  other  necessary  appliances, 
as  it  deems  necessary,  between  the  points  named  in  the  articles  of  incorporation,  com- 
mencing at  or  within,  and  extending  to  or  into  any  city,  village,  town,  or  place  named 
as  a  terminus  of  its  road.     (April  29,  1872,  69  v.  203,  §  4.) 


General  powers. 

A  railroad  corporation  has,  like  any  other 
corporation,  only  such  powers  as  are  ex- 
pressly granted  and  such  as  are  necessary  to 
carry  into  effect  the  powers  expressly  granted. 
Or,  it  may  be  stated,  that  a  railroad  company 
has  its  express  powers  and  such  incidental 
powers  as  are  directly  and  immediately  ap- 
propriate to  the  execution  of  the  specific 
power  granted,  but  not  those  of  remote  and 
slight  relation  to  it. —  Straus  v.  Eagle  Ins. 
Co.,  5  Oh.  St.  59  (1S55);  White's  Bank  v. 
Toledo  Ins.  Co..  12  Oh.  St.  601  (1861)  ;  Colum- 
bus, etc..  Rv.  Co.  v.  Burke,  19  W.  L.  B.  27 
(1887).  See  notes  to  §  3239.  See  §  6761, 
notes. 

Power   to    cross    highways. 

The  right  to  build  a  road  in  a  certain  direc- 
tion implies  power  to  cross  highwavs. —  State 
v.  Montclair  Ry.  Co.,  35  N.  J.  L.  328  (1872)  ; 
Lewis  v.  Germantown,  etc.,  R.  R.  Co.,  16  Phila. 
(Pa.)  608  (1881). 

Power  to  sell  subscriptions. 

Power  to  sell  a  railroad  because  of  lack  of 
means  to  complete   does  not  imply   power  to 


sell    stock    subscriptions. —  Railroad    v.    Hins- 
dale, 45  Oh.  St.  556  (1888). 

Purchase  of  stock. 

A  railroad  company  has  no  power  to  buy 
stock  in  a  mining  corporation. —  Columbus, 
etc..  Ry.  Co.  v.  Burke,  19  W.  L.  B.  27  (1887). 

Purchase  roads. 

Power  to  locate  and  construct  branch  roads 
does  not  confer  by  implication  authority  to 
purchase  and  operate  the  railroad  of  another 
companv. —  Campbell  v.  Marietta,  etc.,  R.  R. 
Co.,  23  Oh.  St.  168  (1872). 

Side  tracks. 

Land  may  be  condemned  for  side  tracks 
whenever  they  become  necessary  in  the  proper 
management  and  operation  of  the  road. — . 
Toledo,   etc.,   Ry.   Co.   v.   Daniels,   16  Oh.    St. 

390   (1865). 

Bridges. 

Power  to  build  a  railroad  between  certain 
points  implies  power  to  bridge  streams  when 
necessarv. —  Fall  River  Iron  Works  Co.  v. 
Old  Colony,  etc.,  R.  R.   Co.,  5  Allen    (Mass.) 


Railroad  (  oki-okai  ions. 


177 


General  Powers,  etc.,  S  3270. 


221  (1802);  Hamilton  v.  Vicksburg,  etc.,  !:.  R. 
Co.,  34  La.  Ann.  970  (1882);  s.  <•..  I  l'.i  I".  S. 
280;  Miller  v.  Prairie  du  C'hien  Ry.  Co.,  34 
Wis.  533  (1874);  Works  v.  Junction  R.  It.  <  .... 
McLean  (U.  S.)  425  (1853);  s.  c,  3  0.  1'.  I). 
101. 

Repair  of  bridges. 

Power  to  build  includes,  of  course,  power  to 
repair  bridges.-  -Hamilton  v.  Yicksburg,  etc., 
R.  R.  Co.,  119  U.  S.  280;  Central  Trust  Co.  v. 
Wabash,  etc.,  Ry.  Co.,  32  Fed.  566. 

Rebuilding  bridges. 

A  railroad  company  will  not  be  restrained 
from  rebuilding  a  bridge  across  a  stream  when 
it  will  cause  no  greater  obstruction  than  the 
old  bridge. —  Board  of  Com'rs  v.  Pierce,  90 
Fed.  764   (1898). 

Bridge,  care  in  erection. 

A  company  in  the  construction,  repair,  and 
maintenance  of  its  bridges  is  bound  to  use 
reasonable  care. —  See  New  York,  etc.,  R.  R. 
Co.  v.  Ellis,  13  O.  C.  C.  704  (1895);  s.  c,  6 
C.  D.  304. 

Power  to  operate. 

Power  to  purchase  implies  authority  to 
operate. —  Campbell  v.  Marietta,  etc.,  R.  R. 
Co.,  23  Oh.  St.  168  (1872). 

"When  company  compelled  to   operate. 

See  Port  Clinton  R.  1!.  Co.  v.  Cleveland, 
etc.,  R.  R.  Co.,  13  Oh.  St.  544  (1862);  Chap- 
man v.  Mad  River,  etc.,  R.  R.  Co.,  6  Oh.  St. 
120   (1856). 

Construction  contracts. 

A  railroad  company  has  the  right  to  enter 
into  a  contract  with  another  person  for  the 
construction  of  its  road  without  retaining  con- 
trol over  the  mode  and  manner  of  doing  the 
work,  and  may  under  proper  circumstances 
be  exempt  from  liability  for  the  wrongful  act 
of  its  contractors. —  Hughes  v.  Cincinnati, 
etc.,  Rv.  Co..  39  Oh.  St.  461  (1883);  Cincin- 
nati, etc.,  R.  R.  Co.  v.  Sliff,  13  Oh.  St.  2:3.',. 
247  (1862);  Carman  v.  Steubenville,  etc.,  R. 
R.  Co.,  4  Oh.  St.  399  (1854). 

Interpretation      of      construction      con- 
tract. 

See  Cleveland,  etc.,  R.  R.  Co.  v.  Kelley,  5 
Oh.  St.  180  (1855);  Mansfield,  etc..  R.  R.Vo. 
v.  Veeder,  17  Oh.  385  (1848). 

Telegraph  lines. 

A  railroad  company  has  implied  power  to 
engage  in  the  telegraph  business  so  far  as 
necessary  and  convenient  in  the  management 
of  its  business. —  Railroad  Co.  v.  Telegraph 
Co.,  38  Oh.  St.  24  (1882). 

Same   subject. 

It  may  grant  any  duly  empowered  company 
or  person  the  right  to  use  its  telegraph  line 
and  equipment  for  general  telegraph  business; 

LAW    GOV.    PRIV.    COR.  — 12. 


bui   it   may  not   in  bo  doing  reserve  the  right 

to   do    local    telegraph    business   >.i 

nil  lire.      Raili  oad    (  ...    i .   'I  elegraph   I 

oh.  St.  24  (1882).    See  Western,  •  tc.    Tel.  Co. 

v.     Atlantic,   etc.,   Co.,    1    \V.    I.     l;    201     309 

(1876). 

Sleeping-car  contracts. 

See  Stanley  v.  Cleveland,  etc..  J:.  I:.  <  ...  18 
Oh.  St.  552   (1869). 

May  accept  donations. 

Sec  Elder  v.   Bellaire,  etc.,  Ry.  Cb.    10    C. 

('.  256    (1885)  ;    s.  c,    1    C.    1).    140;    Sperry  v. 

Johnson.    11   Oh.  452    (1842). 

Eminent  domain. 
See  8  3281   and  notes. 

Power  to  run  along  and  upon  highways. 

Only  in  cases  of  necessity  has  a  railroad 
power  to  build  its  road  along  and  upon  a 
highway.— Springfield  v.  Connecticut 
R.  R.  I  ....  4  (  ush.  (Mass.)  63  I  L849)  ;  Kenton 
County  Bank  v.  Bank  Lick  Turnpike  I  ....  10 
Bush   (Ky.)   529   (1874). 

Power     to    purchase     land    to    get    ma- 
terials. 

A  railroad  company  may.  it  necessary  and 
convenient,  purchase  land  for  the  purpose  oi 
obtaining  gravel,  timber,  etc,  for  construction 
purposes. —  Overmeyer  v.  Williams,  15  Oh.  26. 

Power  to  acquire  report  on  mines. 

A  railroad  company  has  no  power  to  employ 
a  person  to  make  a  reporl  on  mines  of  which 
its  road  is  an  outlet. —  George  v.  Nevada  <  en- 
tral  R.  Co..  22  Nev.  228;  38  Pae.  Rep.  441 
(1894). 

Power  to  aid  entertainments. 

A  railroad  company  has  no  power  to  sub- 
scribe toward  the  expense  of  an  entertainment 
which  will  probably  bring  passenger  traffic  t.> 
the  road.— Davis  v.  Old  Colony  R.  R.  I  ....  131 
Mass.  258.  See  Wood  on  R.  R.,  g  170,  pp.  542- 
559. 

Power  to  locate  the  road. 

All  charters  must  be  taken  to  allow  the  ex- 
ercise  of  a  discretion  in   the   Location   of  the 
route  as  is  incident   to  an  ordinary  practical 
survey   of  the   same,  made  with    reference  t.. 
the  nature  of  the  country   to  be  passed  over 
and  the  obstacles  to  be  encountered  or  avoided. 
The    courts    will    interfere    only    in    cases 
abuse    of    such    discretion. —  Walker    v.    Mad 
River   R.    R.  Co.,  8  <  >h.   38    -  1837)  ;    Ca 
v.  Painesville,  etc.,  R.   R.  Co.,   11   Oh.   Si 
■  L860)  :  Southern,  etc.,  R.  R.  Co.  v.  Stoddard, 
6   Minn.     150    I  L861  I  ;    Fall    River   Co.    \ 

.  eti  ..  l:  R.  Co.,  5  Alien  (Mass.)  221 
(1862)  :  Au~pa<h  v.  Maganoy,  etc.,  R.  R.  Co., 
5  Phila.  (Pa.)  491  (1864  See  Baldwin  v. 
Hillsborough,  etc.,  R.  R.  I  ....  10  W.  L.  J.  337 
(1853). 

If  the  location  is  not  in  substantia]  compli- 
ance with   the  articles,  the  company  may   be 


178 


Private  Corporations  in  Ohio. 


Location,  Change  of  Route,  etc.,  §§  3271,  3272. 


dissolved.— State  v.  Railway,  40  Oh.  St.  504 
(1884). 

When  a  charier  empowered  a  company  to 
build  a  mad  from  a  town  a  Location  sixty  rods 
outside  the  town  is  not  in  compliance  with  the 
charter,  and  the  company  may  be  compelled  to 
extend  the  road. —  Comm.  v.  Erie,  etc.,  R.  R. 
Co..  27   Pa.  St.  339-352   (1856). 

Where  a  company  is  empowered  to  build  to 
a  certain  city,  it  is  not  barred  from  reaching 
such  point  by  the  fact  that  it  made  a  point 
outside  such'  city  a  temporary  terminus. — 
Colorado,  etc.,  Ry.  Co.  v.  Union  Pac.  Ry.  Co., 
41  Fed.  Rep.  203  (1890);  Childs  v.  Railroad 
Co..  33  X.  J.  L.  323   (1869). 

There  is  nothing  in  this  section  which  re- 
quires the  terminus  to  be  in  towns  or  cities. — 
Long  Branch  Com'rs  v.  West  Line  R.  R.  Co., 
29  N.  J.  Eq.  566  (1878);  Attorney-General  v. 
Delaware,  etc..  R.  R.  Co.,  12  C.  E.  Green  (N. 
J.)   645   (1876). 

The  whole  road  may  be  in  one  city  or 
county. —  Long  Branch  Com'rs  v.  West  Line 
R.  R.  Co.,  supra ;  National  Docks  R.  R.  Co.  v. 
Central  R.  R.  Co.,  32  N.  J.  Eq.  755   (1880). 

When  is  a  road  located? 

A  road  is  said  to  be  located  when  a  survey 
is  completed  and  accepted.  The  supreme  court 
of  Pennsylvania,  in  Williamsport  R.  Co.  v. 
Railroad  Co.,  141  Pa,  St.  407   (1891),  said: 

"  The  successive  steps  contemplated  as  neces- 
sary to  vest  a  title  to  the  railway  in  the  cor- 
poration are  these: 

"1.  A  preliminary  entry  on  the  lands  of 
private  owners  for  the  purpose  of  exploration. 
This  is  made  by  engineers  or  surveyors,  who 
run  or  work  one  or  more  experimental  lines, 
and  who  report  their  work,  with  such  maps 
and  profiles  as  may  be  necessary  to  represent 
it  properly  to  the  company  that  employs 
them.     (See  §  3281,  Ohio  Revised  Statutes.) 

"  2.  A  selection  and  adoption  of  a  line,  or 
one  of  the  lines  so  run,  as  and  for  the  location 
of  the  proposed  railroad.  This  is  done  by  the 
corporation,  and  it  requires  the  action  in  some 
form  of  the  board  of  directors.  This  makes 
what  was  before  experimental  and  open,  a 
fixed  and  definite  location.  It  fastens  a  servi- 
tude upon  the  property  affected  thereby,  and 


so  takes  from  the  owner  and  appropriates  to 
the  use  of  the  corporation. 

"  3.  Payment  to  the  owner  for  what  is  taken 
and  the  consequences  of  the  tarring,  or  security 
that  it  shall  be  made  when  the  amount  due 
him  is  legally  ascertained.  The  title  of  the 
owner  is  not  divested  until  the  last  of  these 
steps  has  been  taken.  As  against  him  the 
corporation  can  acquire  only  a  conditional 
title  by  its  act  of  location,  which  ripens  into 
an  absolute  one  upon  making  compensation. 

"  As  to  third  persons  and  rival  corporations, 
however,  the  action  of  the  company  adopting 

a  definite  location  is  enough  to  give  title. 

********* 

"  In  many  states  provision  is  made  by  law 
for  recording  the  action  of  the  company  and 
the  line  adopted  by  it,  so  as  to  give  notice  to 
the  public,  and  to  settle  questions  of  priority 
of  location.  We  have  no  such  statute,  and  the 
action  of  the  company  must  be  proved  by  other 
competent  evidence,  but  when  proved  it  has 
the  same  effect  upon  all  interested  as  though 
it  had  been  recorded.  It  settles  the  date  of 
actual  appropriation,  and  shows  the  exact 
location  of  the  line  of  the  road  proposed.'' — 
See  Baldwin  v.  Hillsborough  R.  R.  Co.,  10  W. 
L.  J.  356  (1853). 

Agreement  for  location  of  road. 

An  agreement  for  the  location  of  the  route 
of  a  railroad  at  a  particular  intermediate 
place  is  not  per  se  void  as  against  public  pol- 
icy.—  Railroad  Co.  v.  Ralston,  41  Oh.  St.  573 
(1*885).  See  Pittsburg,  etc.,  Ry.  Co.  v.  Rose, 
24  Oh.  St.  119  (1856). 

Surveying    and    staking    do    not    consti- 
tute a  location. 

A  line  of  road  is  not  so  "  located  "  by  sur- 
veying and  staking  without  condemnation  or 
purchase  as  to  give  the  company  a  right  to 
the  land  exclusive  of  another  railroad  com- 
pany that  subsequently  surveys  and  stakes 
the  same  line,  and  begins  appropriation  pro- 
ceedings. Such  first  company  cannot  enjoin 
the  second  company  from  entering  on  such 
land.  Its  remedy  is  at  law. —  Columbus  Ter- 
minal, etc.  v.  Toledo  Ry.  Co.,  32  W.  L.  B.  186 
( 1 894 i . 


§  3271.  LOCATION  OF  TERMINUS. —  When  a  terminus  named  in  the  articles 
of  incorporation  is  a  county  upon  the  line  or  boundary  of  the  state,  the  president  and 
directors  of  the  company,  upon  the  location  of  the  road  in  that  county,  shall  make 
and  acknowledge  a  certificate  definitely  fixing  the  location  in  such  county,  and  file 
the  same  with  the  secretary  of  state.     (April  27,  1872,  69  v.  163,  §   1.) 

Note.-  Attention  is  called  to  this  section  for  the  reason  that  it  has  been  uniformly 
disregarded. 


S  3272.  CHANGE  OF  ROUTE. —  A  company  may,  by  a  resolution  adopted  by  a 
majority  of  its  board  of  directors,  at  a  meeting  thereof  duly  called  for  the  purpose, 
■with  the  written  consent  of  three-fourths  in  interest  of  its  stockholders,  change  the 
line,  or  any  part  thereof,  and  either  of  the  proposed  termini,  of  its  road;  but  no 
change  shall  be  made  which  will  involve  the  abandonment  of  any  part  of  the  road, 


Railroad  (  !orporai  i<  >n  3. 


179 


Change  of  Route,  etc.,   g  3272. 


either  partly  or  completely  constructed;  and  any  subscription  of  stock  made  upon 
the  faith  of  the  location  of  such  road,  or  a  part  thereof,  upon  any  line  abandoned  by 
such  change,  shall  be  cancelled  at  the  written  request  of  the  subscriber  not  having 
consented  thereto,  filed  with  the  secretary  or  other  chief  officer  of  the  company,  within 
six  months  after  such  change.     (April  7,   1876,  73  v.    115,  8   1.) 


Remedy  of  conditional  subscribers. 

1  This  section  adds  a  remedy  for  conditional 
subscribers  to  stock,  but  in  no  way  affects  the 
terms  of  their  contracts,  it  is  not  accessary, 
therefore,  for  a  conditional  suhscriher  to  re 
quest  the  cancellation  of  his  subscription  in 
writing.  He  may  rely  on  the  terms  of  his 
subscription. —  Railway  Co.  v.  Fisher,  39  Oh. 
St.  330   (1883). 

Same   subject. 

A  subscriber  is  not  released  unless  he  sub- 
scribed on  the  faith  of  the  location  of  the  road, 
and  within  six  months  after  the  change  re- 
quested in  writing  the  cancellation  of  his  sub- 
scription.—  Armstrong  v.  Karshner,  47  Oh. 
St.  276,  302   (1890). 

Defenses  of  subscribers  to  stock. 

See  §  3253,  notes;  Marietta,  etc.,  R.  II.  I  o. 
v.  Elliott,  10  Oh.  St.  57  (1859);  Jewett  v. 
Valley  Ry.  Co.,  34  Oh.  St.  601  (1878):  Mil- 
ford,  "etc..  Turnpike  Co.  v.  Brush.  10  Oh.  Ill 
(1840);  Pa.,  etc.,  Canal  Co.  v.  Webb,  9  Oh. 
130  (1839). 

Resolution    of    directors. 

The  vote  of  the  directors  need  not  show  the 
particular  route  to  be  occupied  in  the  new 
counties  or  places  selected.  There  is  a  new 
power  tc  locate  according  to  the  statute  when 
the  directors  have  by  proper  vote  so  deter- 
mined.—  In  re  New  York,  etc.,  Ry.  Co.,  88  N. 
Y.   279   (1882). 

Extensions. 

While  in  some  states  statutes  are  held  to 
permit  extension  of  completed  roads,  it  seems 
clear  that  our  statute  permits  only  changes  in 
the  route  and  termini  of  incompleted  roads. — 
See  Colorado,  etc.,  Ry.  Co.  v.  Union  Pac.  Ry. 
Co..  41  Fed.  293;  Louisville  Trust  Co.  y.  Cin- 
cinnati, etc.,  Ry.  Co.,  91  Fed.  099  (1897); 
s.  c,  10  O.  F.  D.'  646. 

Change  of  location  or  route. 

Prior  to  1S48  there  was  no  genera]  law  pro- 
viding for  a  change  of  location,  route,  or  ter- 
minus of  a  railroad.  In  that  year  the  lirst 
statute  was  passed,  the  latest  form  of  which 
is  §  3277,  Revised  Statutes. —  See  Acts  of 
Feb.  11,  1848,  46  v.  44,  §  10;  Acts  of  May  1. 
1852,  50  v.  276,  §  11;  Acts  of  April  5.  1866, 
63  v.  141,  §  11;  Acts  of  March  8,  1865.  62 
v.  36. 

In  1871  an  act  was  passed  tc  facilitate  loca- 
tion of  good  roads  by  minor  changes,  which 
act.  with  the  changes,  is  found  in  Revised 
Statutes.  §  3275.— See  Lets  of  May  2.  1871, 
68  v.  120;  Acts  of  March  30,  1874,  71   v.  54. 

The  act  to  provide  for  change  in  route  was 


passed   in    1876,  and   i-    found   in    |   3272,   Re 
vised    Statutes.      See    Act   of    April    7.    1876 

7::  v.  115. 

History  of  legislation. 

The  history  of  thi-  legislation  i-  given  for 
the  reason  thai  considerable  lighf  i-  thus 
gained  as  to  the  exact  meaning  of  our  present 
acts. 

Previous  to  L848  roads  withoul  Bpecial  pro 
visions  in  their  charters  were  unable  to  adopl 
any  changes  in  route  or  location.  Moore- 
bead    \.    Little    Miami    It.    R.    Co.,    17    01 

1  1848)  :     Little    Miami    v.    Naylor,    2    01 

235  i  L853) ;  Atkinson  v.  Marietta,  etc.,  R.  I: 
Co.,  15  Oh.  St.  21  (1864);  Works  v.  Junction 
R.  R.  Co.,  5  McLean  (U.  S.)  425;  8.  c,  3  0.  I  . 
I).   101. 

Exhaustion  of  power  to  locate. 

In  the  absence  of  authority  the  completion 
of  a  location  of  a  road  exhausts  the  power  of 
the     company,     and     thi>     principle     applies 

whether   it   is   attempted    to    relocate   on    pri- 
vate property  or  on   a   street  or  highwa 
Moorehead  v.   Little  Miami   It.   R.  Co.,   17  Oh 
340   (1848):   Little  Miami  It.  R.  Co.  v.  Xavlor. 

2  Oh.  St.  235   (1853). 

Construction  of  laws. 

We  bave  three  sections  .".272,  3275  and  3277, 
providing  for  changes  in  the  route  and  loca- 
tion of  railways  in  diil'eivnt  forms  and  under 
different  circumstances. 

§  .1272  covers  any  change  in  the  line,  route 
or  termini  before  the  part  affected  is  partially 
or  completely  constructed. 

§  3275  covers  minor  changes  or  divergences 
in  the  line  before  it  i-  loci  ted,  so  as  to  avoid 
dangerous  and  expensive  operation  and  con- 
struction, saving  from  such  changes  the  main 
point,  of    the    road,    the    general    route    and 

located    parts. 

§  ::277  covers  changes  in  a  located  or  com- 
pleted mad  >o  as  to  avoid  dangerous  opera- 
tion. 

Laws  of  this  nature,  being  in  derogation  of 
private  right,  must  be  strictly  construed,  but 
it  should  not  be  that  narrow  and  niggardly 
strictness  which  utterly  disregards  the  ad- 
mitted policy  of  the  law,  and  gives  strained 
and  secondary  meaning  to  it-  language,  in  or- 
der to  defeat  that  policy.  In  other  words. 
these  statutes  axe  no1  to  be  viewed  with  the 
liberality  extended  to  enactments  purely 
remedial,  but,  on  the  other  hand,  the  rules 
applicable    to    penal    statutes    are    no1    to    be 

applied  to  them. Tewett  v.   Railway,  34   <  >h. 

st.  601  (1878);  Toledo,  etc.,  Ry.  Co.  v.  Dan- 
iels, 16  Oh.  St.  390  (1865). 


180 


Private  Corporations  in  Ohio. 


Change  of  Route,  etc.,  §§  3273-3275. 


Cause  of  change. 

Before  ;i  change  can  be  made  the  cause  set 
forth  must  be  shown  to  be  fairly  within  the 
terms  of  the  statute. —  In  re  New  York,  etc., 
R.  R.  Co..  88  N.  V.  279;  Works  v.  Junction  R. 
K.  Co.,  5  McLean  (U.  S.)  425;  s.  c,  3  0.  F.  D. 
101. 

Remedy  for  illegal  change. 

Where  a  rauroad  company  has  received 
from  private  parties  donations  of  lands,  sub- 
scriptions of  stock,  and  payments  of  money  in 
consideration  that  it  should  locate  its  road  at 
a  particular  place,  and  allow  private  side 
track  and  warehouse  privileges  in  connection 
therewith,  the  company  will  not  be  permitted 
to  effectuate  a  change  in  fact  (though  not  in 
name)  of  the  line  of  its  road  away  from  such 
a  place,  by  getting  up  a  new  corporation  and 
constructing  a  new  road  parallel  with  its  old 
one,  under  a  different  charter,  permitting  its 
old  line  to  go  to  decay,  without  compensating 
the  parties  with  whom  it  has  contracted  as 
aforesaid. —  Chapman  v.  Mad  River,  etc.,  R. 
R.  Co.,  6  Oh.  St.  119  (1856). 

Indirect  change  of  route. 

Whether  a  railroad  company  may  construct 
another  road  entirely  parallel  with  its  own, 
which  if   owned  and  managed  bv   an   interest 


distinct  from  itself,  must  necessarily  be  a 
competing  road,  for  the  purpose  and  with  the 
effect  to  bring  about  a  change  in  its  own  line, 
rather  than  to  create  a  feeder  or  an  extension 
of  its  own  line,  is  within  the  limits  of  such 
connections  as  are  authorized  by  §  3300,  Re- 
vised Statutes,  quaere. —  Chapman  v.  Mad 
River,  etc..  R.  R.  Co.,  6  Oh.  St.  119  (1856). 
See  Atlantic,  etc.,  R.  R.  Co.  v.  St.  Louis,  66 
Mo.  228    (1890). 

Injunction  against  change. 

See  Stewart  v.  Little  Miami  R.  R.  Co.,  14 
Oh.  353  (1846). 

Extension  of  line. 

Authority  to  extend  a  line  of  railroad  will 
not  authorize  a  company  in  departing  from 
the  named  terminus.  The  extension  must  be 
made  from  the  terminus,  not  from  the  middle, 
or  any  other  point. —  Works  v.  Junction  R.  R. 
Co.,  5  McLean  (U.  S.),  425;  s.  c,  3  O.  F.  D. 
101;  s.  c,  10  W.  L.  J.  370  (1853). 

Abandonment   of   track. 

A  company  may  abandon  a  spur  or  switch 
track  in  the  absence  of  express  contract.  This 
section  does  not  cover  such  track. —  Mercan- 
tile Trust  Co.  v.  Columbus,  etc.,  R.  R.  Co.,  90 
Fed.  148   (1898). 


§  3273.  CHANGE  TO  BE  CERTIFIED  TO  SECRETARY  OF  STATE.— When 
any  such  change  is  made,  the  same  shall  be  described  in  such  resolution,  a  duly 
authenticated  copy  of  which,  under  the  seal  of  the  company,  shall  be  filed  with  the 
secretary  of  state,  and  by  him  recorded,  with  proper  reference,  on  the  record  of  the 
articles  of  incorporation  of  the  company,  and  when  so  filed,  such  change  shall  be 
considered  as  made,  and  shall  be  as  valid  and  binding  as  if  such  changed  line  had 
been  the  '.me  originally  described  in  such  articles.      (April  7,  1876,  73  v.  115,  §  2.) 


§  3274.  MORTGAGE  COVERS  LINE  AS  CHANGED.—  When  any  such  company 
has  issued  its  mortgage  bonds  for  the  construction  of  its  road,  the  record  of  the  mort- 
gage securing  the  same,  in  each  county  through  or  into  which  the  changed  line  of 
the  road  passes,  shall  be  as  effectual  to  create  a  lien  upon  the  changed  line  of  road, 
and  upon  the  property  of  the  company,  as  if  such  mortgage  contained  a  complete 
description  of  such  changed  line  and  of  such  property.  (April  7,  1876,  73  v.  115, 
§  3.) 


In  Ewell  v.  Grand  Street,  etc.,  R.  R.  Co.,  67 
Barb.   (N.  Y.)   83   (1874),  it  is  said: 

"  To  hold  that  by  deviating  from  the  route 
laid  down  by  the  road  could  be  pro  tanto 
freed  from  the  lien,  would  be  to  announce  a 
very   dangerous  doctrine. 

"Good  faith  forbids  that  a  security  should 
be    invalidated    after   one   party    has    received 


the  full  benefit,  and  can  no  longer  place  the 
other  party  in  as  good  position  as  it  originally 
occupied.  The  bondholders  therefore  acquired 
a  full  right  to  have  the  road,  as  built,  sold  to 
pay  their  bonds."—  Meyer  v.  Johnston,  53 
Ala.  237  (1875);  Meyer  v.  Stewart,  64  Ala. 
603  (1879);  Jones  on  Corporate  Bonds,  §§  71, 
101;   Short  on  Railway  Bonds,   §  212. 


§  3275.  WHEN  AND  HOW  ROUTE  MAY  BE  CHANGED.—  When  a  company, 
the  line  of  whose  road  has  not  been  finally  located  in  whole  or  in  part,  finds  it  neces- 
sary, in  order  to  avoid  dangerous  or  difficult  curves  or  grades,  or  dangerous  or  unsub- 
stantial grounds  or  foundations,  or  for  other  reasonable  cause,  to  pass  through  a 
county  not  named  in  the  articles  of  incorporation,  or  to  avoid  passing  into  or  through 
a  county  named  therein,  other  than  a  county  in  which  a  terminus  of  the  road  has  been 
fixed  by  the  articles  of  incorporation,  or  in  which  is  located  a  town  or  place  by  or 


Railroad  (  Iorporai  cons. 


181 


Change  of  Route,  etc.— Damages,  etc.,  H  327G  3278. 


through  which  the  line  of  such  road  is  to  pass,  the  president  and  directors  of  the 
company,  or  a  majority  of  them,  may,  under  their  hands  and  seal,,  make  B  Ci  "lficate 
declaring  such  necessity,  and  the  cause  thereof,  and  name  therein  the  county  or 
counties  through  which  it  may  be  necessary  to  pass,  or  which  it  may  be  necessary  to 
avoid,  which  certificate  shall  be  acknowledged  and  certified  as  provided  in  chapter 
one  of  this  title,  and  forwarded  to  the  secretary  of  state;  and  a  copy  of  such  certifi- 
cate, duly  certified  by  the  secretary  of  state,  shall  be  evidence  of  the  facts  the 
stated;  but  nothing  herein  shall  be  construed  to  authorize  the  abandonment  of  any 
part  of  such  company's  line  that  has  been  finally  located,  or  a  change  of  the  gen- 
eral route  of  the  line  of  such  road,  or  the  terminal  points  named  in  the  articles  of 
incorporation.     (March  30,   1874,  71  v.  54,   §   1.) 


Change  by  directors. 

See  generally  as  to  change  of  location  by 
directors,  Baldwin  v.  Hillsborough,  etc.,  R.  R. 
Co.,  10  W.  L.  J.  356   (1853). 


Failure      to     contribute     no     cause     for 

change. 

A  company  cannol    change   it-  location   be- 
cause nt'  the  failure  of  a  town  to  contrib 
the  mad.      Works  v.  Junction,  etc.,  K    I:.  Co., 
5  McLean   (U.   S.)   425;   -.  c,  :;  0.   F.   D.   LOlj 
LO   \V.   L.  •».   37D   (1853). 


§  3276.  COMPANY  LIABLE  FOR  DAMAGES  AND  CERTAIN  SUBSCRIPTIONS 
CANCELLED. —  When  the  line  of  road  of  any  company  is,  under  the  preceding  sec- 
tion, diverted  from  a  county  named  in  the  articles  of  incorporation,  the  company  shall 
be  liable  in  damages,  if  any  be  caused  by  such  change  or  diversion,  to  any  person 
owning  land  in  such  county,  and  all  persons  who  subscribed  to  the  capital  stock  of 
the  company  on  the  line  of  that  part  of  the  road  so  changed  shall  be  released  from  all 
obligations  to  pay  their  subscriptions;  but  no  action  shall  be  commenced  for  such 
damages  after  six  months  from  the  filing  of  such  certificate  with  the  secretary  of 
state,  and  the  publication  of  notice  thereof  by  the  company,  for  four  consecutive 
weeks,  in  some  newspaper  printed  in  such  county,  or,  if  no  newspaper  is  printed 
therein,  in  some  newspaper  having  general  circulation  therein,  saving  the  rights  of 
infants,  lunatics,  and  persons  imprisoned,  for  six  months  after  their  disability  is 
removed.     (March  30,  1874,  71  v.  54,  §  2.) 


Damages  to  landowners. 

The  question  of  damages   in    such   caa 
landowner-  i-  ably  discussed   in    Leisse     .    St. 
Louis,  etc.,  R.  R.  Co.,  2  Mo.  App.  1".",  |  L876)  ; 
s.  c,  72  Mo.  561. 


Defenses  of  subscribers  to  stock. 

A  defense  under  this  section  to  an  action 
on  a  stock  subscription  must  show  that  the 
road  was  diverted  from  a  county  named  in  the 
articles  of  incorporation,  and  that  the  sub- 
scriber was  on  the  line  diverted. —  Armstrong 
v.  Karshner,  47  Oh.  St.  276,  301   (1890). 

§  3277.  CHANGE  OF  LOCATION. —  For  the  purpose  of  avoiding  annoyance  to 
public  travel,  or  dangerous  or  difficult  curves  or  grades,  or  unsafe  or  unsubstantial 
grounds  or  foundations,  or  when  the  road-bed  has  been  injured  or  destroyed  by  the 
current  of  any  river,  water  course,  or  other  unavoidable  cause,  or  for  other  reasonable 
cause,  a  company  may  change  the  location  or  grade  of  any  portion  of  its  road,  whethei 
heretofore  made  or  hereafter  to  be  made,  but  shall  not  depart  from  the  general  route 
prescribed  in  the  articles  of  incorporation.  (April  5,  1866,  63  v.  141.  5  11;  March  8, 
1865,  62  v.  36,  §  1.) 

Validity  of  change. 

A  change  unaer  this  section  is  good  if  the 
general   route   is   not   departed    from,    and    if 


sufficient    cause   exists.   -Piedmont,   etc.,    Ry. 
Co.  v.  Speelman,  67  Md.  260     1887   , 


§  3278.  DAMAGES. —  For  the  purpose  of  making  any  such  change,  the  company 
shall  have  all  the  rights,  powers,  and  privileges  to  enter  upon  and  appropriate  lands, 
and  make  surveys  necessary  to  effect  such  change,  upon  the  same  terms,  and  subject 
to  the  same  obligations,  rules,  and  regulations  as  are  prescribed  by  law,  except  that, 
when  it  is  necessary  to  appropriate  property  for  any  such  change,  the  appropriation 
may  be  had,  if  the  probate  court,  in  the  proceedings  instituted  therefor,  find  that  the 


182 


Private  Corporations  in  Ohio. 


Powers  in  adjoining  States  —  Branch  Roads,   §§   3279,  3280. 


proposed  change  will  conduce  to  the  interests  of  the  company  and  the  public,  and 
that  the  property  and  rights  of  those  owning  real  estate  along  the  portion  of  the  road 
to  be  affected  by  the  change  will  not  be  unreasonably  injured  thereby;  but  when  the 
location  is  changed  after  the  road  has  been  used  for  transportation  of  persons  and 
property,  the  company  shall  be  liable  for  all  damages  occasioned  by  such  change  to 
the  owner  of  the  land  upon  which  the  road  was  first  constructed.  (April  5,  1866,  63 
v.   141,  §  11;  March  8,  1865,  62  v.  36,  §   1.) 

Damages  to  landowners.  I  Louis,  etc.,  R.  R.  Co.,  2  Mo.  App.  105   (1876); 

The  question  of  damages  to  landowners  in     s.  c,  72  Mo.  561.     See  Chapman  v.  Mad  River, 
such   cases   is  ably  discussed  in  Leisse  v.   St.  |  etc.,  R.  R.  Co.,  6  Oh.  St.  119   (1856). 


§  3279.  POWERS  IN  ADJOINING  STATES. —  Any  company  organized  for  the 
purpose  of  constructing  a  railroad  to  the  boundary  line  of  this  state,  may  extend  its 
road  into  and  through  any  adjoining  state,  under  the  regulations  which  may  be  pre- 
scribed by  such  adjoining  state;  and  the  rights,  powers,  and  privileges  of  such  com- 
pany over  such  extension,  in  the  construction  and  use  of  such  road,  and  in  controlling 
the  property  and  applying  the  money  and  assets  thereon,  shall  be  the  same  as  if  the 
road  were  built  wholly  within  this  state.     (April   10,   1856,  53  v.   143,  §  9.) 


A  railroad  company,  by  extending'  its  lines 
into  another  state,  does  not  cease  to  be  a 
citizen  of  the  state  of  Ohio,  and  thereby  enti- 
tled to  remove  cases  brought  against  it  in 
such    other    state    to    the    federal    courts. — 


Baltimore,  etc.,  R.  R.  Co.  v.  Cary,  28  Oh.  St. 
208  (1876);  Railway  v.  Stringer,  32  Oh.  St. 
468  (1877);  Railway  Assurance  Co.  v.  Pierce, 
27  Oh.  St.  155  (1875). 


§  3280.  BRANCH  ROADS. —  A  company  may  construct  branches  from  the  main 
line  to  towns  or  places  within  the  limits  of  any  county  through  or  into  which  its  road 
passes,  or  to  a  connection  with  any  railroad  which  is  or  may  be  built  within  the  state, 
or  to  any  coal  or  other  mine,  stone  quarry,  plastic  clay,  pottery  clay  and  fire  clay 
pits  or  banks,  ore  or  shale  banks,  if,  at  a  meeting  of  the  stockholders  called  for 
that  purpose,  the  holders  of  a  majority  of  the  capital  stock  of  the  company,  by  a 
vote,  in  person  or  by  proxy,  so  determine;  and  upon  such  determination  the  presi- 
dent and  directors  shall  make  and  acknowledge  a  certificate  setting  forth  the  facts, 
and  file  the  same  with  the  secretary  of  state.  (March  22,  1894,  91  v.  87;  R.  S.  1880; 
69  v.  203,  §  4.) 


Branches  to  mines,  factories,  etc. 

A  great  many  courts  have  held  that  rail- 
roads have  no  power  to  condemn  land  for  the 
purpose  of  reaching  some  manufacturing 
plant. 

In  Pittsburgh,  etc.,  R.  R.  Co.  v.  Ben  wood 
Iron  Works,  31  W.  Va.  710  (1888),  it  is  said: 

"  It  seems  to  us,  if  the  railroad  corporations 
were  permitted,  ad  libitum,  to  do  what  this 
defendant  in  error  asks  to  be  done,  no  '  deadlier 
blow  could  be  dealt  the  private  rights  of  the 
citizen.'  If  the  doctrine  claimed  by  the  de- 
fendant in  error  should  prevail,  then  corpora- 
tions might  go  to  any  private  place  they 
choose,  to  rolling  mills,  ice  houses,  tanneries, 
sugar  refineries,  brick  yards,  grocery  stores, 
and  in  the  country  to  stone  quarries,  coal 
mines,  stock  farms,  etc.,  and  if  any  private 
citizen  dared  to  stand  in  the  way,  violently 
wn'-t  his  property  from  him  for  their  mere 
private  gain.  In  such  a  state  of  affairs  the 
so-called  protection  by  constitution  to  the 
rights  of  private  property  by  the  arbitrary 
ruling  of  the  courts,  would  be  rendered  nuga- 
tory and  void.     The  mere  declaration  in  a  pe- 


tition that  the  property  is  to  be  appropriated 
to  a  public  use  does  not  make  it  so;  and  evi- 
dence that  the  public  will  have  a  right  to  use 
it  amounts  to  nothing  in  the  face  of  the  fact 
that  the  only  incentive  to  ask  for  condemna- 
tion was  private  gain,  and  it  was  apparent 
that  the  general  public  had  no  interest  in  it." 

This  view  is  supported  by  Chicago,  etc.,  R. 
R.  Co.  v.  Wiltz,  116  111.  449  (1886);  Denver 
Coal  Co.  v.  Union  Pac.  R.  R.  Co.,  34  Fed.  286 
(1888);  Kyle  v.  Texas,  etc.,  R.  R.  Co.,— Tex. 
App.  — ,  4  L.R.A.275  (1889)  ;  Sholl  v.  German 
Coal  Co.,  118  111.  427  (1886);  Rensselaer,  etc., 
Ry.  Coal  Co.  v.  Davis,  43  N.  Y.  137  (1870); 
Chattanooga,  etc.,  Ry.  Co.  v.  Felton,  69  Fed. 
273  (1895).  See  South  Chicago,  etc.,  Ry.  Co. 
v.  Dix,  109  111.  237  (1883)  ;  Salt  Co.  v.  Brown, 
7  W.  Va.   191    (1S74). 

The  opposite  position  is  held  in  New  Central 
Coal  Co.  v.  Georges  Creek  Coal  Co.,  37  Md. 
357  (1872);  Dietrich  v.  Murdock,  42  Mo.  279 
(1868)  ;  Brown  v.  Corey,  43  Pa.  St.  495  (1862)  : 
Railway  Co.  v.  Pettv.  57  Ark.  359  (1893); 
National  Docks  R.  R.'Co.  v.  Central  R.  R.  Co., 
32  N.  J.  Eq.  755  (1880).     See  generally  Lewis 


Railroad  (  !orporations. 


183 


Appropriation  of  Land,  etc.,   $  3281. 


Location  and  length  of  branch   roads. 

\\  here  a  Bpecial  charter  of  an  Ohio  railroad 
:  rani  ed  it  power  to  Locate  a  ad  con  trucl 
branched  roads  from  the  main  line  to  other 
tow  as     or     places     in     th<  <•« m n t  iea 

through    which    Baid    road    may    pa 
held  thai  the  branches  musl  proceed  from  the 
main  line  a  nd  I  ei  minate  al  towns  oi  ph 
tin-  same  county.      Works  v.  Junction   R.   R. 
Co.,  5   McLean   I  U.  8.)    125    I  1853) 
I'.   I).    101. 


on  Eminent    Domain,  §    171;    Elliott  <>n    Rail 
roads,   §    661. 

Our  Ohio  decisions  tend  toward  the  adop- 
tion of  the  West  Virginia  rule.  Sec  State  v. 
Railroad  Co.,  40  Oh.  St.  504  (1884);  State 
v.  Railroad  Co..  50  Oh.  St.  239  (1893)  ;  Reeves 
v.  Treasurer  of  Wood  County,  8  Oh.  St.  333 
(1858). 

Power  to  purchase  branch  roads. 

Power  to  construct  branches  to  a  main  road 
does  not  include  authority  to  purchase  a 
branch  road. —  Campbell  v.  Marietta,  etc.,  R. 
R.  Co.,  23  Oh.  St.  168  (1872). 

§  3281.  POWER  TO  APPROPRIATE  LAND. —  A  company  or  municipal  corpora- 
tion which  may  own  or  operate  a  railroad  may  enter  upon  any  land  for  the  purpose 
of  examining  and  surveying  its  railroad  line,  and  appropriate  so  much  thereof  as 
may  be  deemed  necessary  for  its  railroad  including  necessary  side  tracks,  depots, 
work-shops,  round-houses,  and  water  stations,  material  for  construction,  except  tim- 
ber, a  right  of  way  over  adjacent  lands  sufficient  to  enable  it  to  construct  and  repair 
its  road  and  the  right  to  conduct  water  by  aqueducts  and  to  make  proper  drains; 
but  no  appropriation  of  private  property  to  the  use  of  a  company  or  a  municipal  cor- 
poration which  owns  or  operates  a  railroad  shall  be  made  until  full  compensation 
therefor  is  made  in  money  or  secured  by  a  deposit  of  money  to  the  owner  irrespective 
of  any  benefit  from  any  improvement  proposed  by  the  company  or  such  municipal 
corporation  as  prescribed  by  law.  (May  18,  1894,  91  v.  294;  R.  S.  1880;  May  1,  1852, 
50   v.   274,    §    10.) 

cessity  for  the  road.—  Powers  v.  Hazelton,  etc., 
R.  R.  Co.,  33  Oh.  St.  429  (1878).    See  §  6420. 


Statute   strictly   construed. 

Statutes  granting  power  to  condemn  land 
for  railroad  purposes  must  be  strictly  con- 
strued.— Piatt  v.  Pennsylvania  Co.,  43  Oh.  St. 
228.  244  (1885);  Currier  v.  Marietta,  etc.,  R. 
R.  Co.,  11  Oh.  St.  228  (1860)  ;  Miami  Coal  Co. 
v.  Wigton,  19  Oh.  St.  560,  566  (1860)  ;  Youngs- 
town  v.  Pittsburgh,  etc.,  R.  R.  Co.,  3  O.  C.  C. 
214,  222  (1888);  s.  c,  2  C.  D.  121;  Harner  v. 
Columbus,  etc.,  Ry.  Co.,  29  W.  L.  B.  387 
(1893)  ;  Toledo  Ry.  Co.  v.  Daniels,  16  Oh.  St. 
390,  396  (1865). 

Appropriation     under     constitution     of 
1802. 

Under  the  constitution  of  1802,  which  was, 
unlike  the  present  constitution  in  that  respect, 
where  lands  were  appropriated  by  a  railroad 
company  for  its  track,  supposed  benefits  might 
be  set  off  against  the  value  of  the  land  taken, 
and  hence  the  land  might  be  appropriated 
without  the  payment  of  any  money  whatever. 
—  Piatt  v.  Pennsylvania  Co.,  43  Oh.  St.  228 
(1885). 

Incorporation  for  private  ends. 

It  is  incompetent  for  a  landowner  to  show 
in  an  appropriation  proceeding  that  the  cor- 
porators procured  the  incorporation  of  the 
company,  not  for  public  use,  but  for  private 
ends  merely,  and  were  exercising  the  corporate 
privileges  in  abuse  of  the  law. —  Powers  v. 
Hazelton,  etc.,  R.  R.  Co.,  33  Oh.  St.  429  (1878). 

Public  necessity. 

An  appropriation  proceeding  cannot  be  de- 
feated by  snowing  that  there  is  no  public  ne- 


Compensation. 

Our  laws  guarantee  a  compensatory  not 
speculative  remuneration  for  the  land  taken, 
and  for  the  damages  occasioned  thereby  to  the 
rest  of  the  property.  The  difference  in  value 
of  the  property  with  the  appropriation  and 
that  without  it  is  the  rule  of  compensation. 
The  difference  must  be  ascertained  with  refer- 
ence to  the  value  of  the  property  in  view  of 
its  present  character,  situation,  and  surround- 
ings. It  cannot  be  enhanced  by  proving  facts 
of  a  contingent  and  prospective  character, 
such  as  the  probable  rents  that  may  be  de- 
rived from  the  property,  or  its  special  value 
as  a  prospective  monopoly  of  a  roadway  to  the 
adjoining  lands  of  other  persons. —  Powers  v. 
Hazelton,  etc.,  R.  R.  Co.,  33  Oh.  St.  429  (1S78). 

Failure  to  make  compensation  —  re- 
covery of  possession. 
Where  a  company  occupies  land  and  builds 
a  track  and  runs  cars  without  first  making 
compensation,  the  owner  of  the  land,  not  hav- 
ing knowledge  of  or  having  acquiesced  in  Buch 
use.  may  recover  possession  of  the  land. — 
Bothe  v.  Dayton,  etc.  K.  R.  Co.,  37  Oh.  St. 
147    (1881). 

Damage  to  turnpike  companies. 

Where  a  railroad  company  proceeds  to  con- 
struct its  road  in  part  along  and  upon  land 
covered  by  the  easement  of  a  turnpike  com- 
pany, that  latter  is  entitled  to  compensation 
to  the  extent  of  the  damage  accruing  to  it  in 
the  diminution  of  the  productive  value  of  its 


184 


Private  Corporations  in  Ohio. 


Appropriation  of  Land,  etc.,   §  3281. 


property.  excepting,  however.  diminution 
caused  by  competition  between  the  turnpike 
company  and  the  railroad  as  means  of  trans- 
portation.—  Cincinnati,  etc.,  R.  R.  Co.  v. 
Zinn.  18  Oh.  St.  417   (1S68). 

Destruction  of  access  to  and  from  par- 
cels of  land. 

Where  the  railway  cuts  asunder  an  entire 
tract  of  land,  the  owner  is  entitled  to  com- 
pensation  for  the  inconvenience  and  danger 
of  access  between  the  two  parts  of  the  tract 
when  the  inconvenience  and  danger  are  pe- 
culiar to  the  owner  in  the  use  of  his  property, 
and  not  common  to  the  public  at  large. —  See 
Hatch  v.  Cincinnati,  etc.,  R.  R.  Co.,  18  Oh. 
St.  92  (1868)  i  Piatt  v.  Pennsylvania  Co.,  43 
Oh.  St.  244   (1885). 

Danger  from  fire. 

An  owner  is  not  entitled  to  recover  on  ac- 
count of  increased  danger  from  tire  to  his 
building  or  other  structures,  by  reason  of  the 
use  of  the  property  by  a  railway,  unless  the 
proximity  of  his  buildings,  etc,  to  the  rail- 
way be  such  as  to  render  the  danger  immi- 
nent and  appreciable. — -Hatch  v.  Cincinnati, 
etc.,  R.  R.  Co.,  18  Oh.  St.  92   (1868). 

Damage  done  in  making  appropriation. 

Where  a  petition  states  only  that  a,  railroad 
company,  in  locating  and  constructing  its  road 
on  and  through  the  plaintiff's  land,  appropri- 
ated about  two  acres  of  the  land  to  its  own 
use,  and  located  its  road  through  the  land  in 
a  diagonal  manner  so  as  to  greatly  injure 
the  same  and  committed  other  acts  and  tres- 
passes  upon  the  land  to  the  plaintiff's  damage, 
fails  to  state  a  cause  of  action,  there  being  no 
allegation  that  unnecessary  damage  was  done 
or  failure  to  make  compensation. —  Cleveland, 
etc.  R.  R.  Co.  v.  Stackhouse,  10  Oh.  St.  567 
(1860). 

Right  to  entry  to  survey. 

The  legislature  may  properly  and  constitu- 
tionally confer  the  right  to  enter  upon  the 
lands  of  an  individual  without  compensation, 
in  order  to  survey  and  make  examinations 
for  its  line  of  road,  and  the  company  may  ex- 
ercise  the  right,  doing  no  unnecessary  damage. 
Ward  v.  Toledo,  etc.,  R.  R.  Co.,  10  W.  L.  J. 
365   (1853). 

'What  interests  and  estates  included  in 

■word  "  land." 

The  word  "  land  "  as  used  in  this  section  in- 
cludes  all  the  rights  and  interests  which  may 
be  had  in  lands  which  it  may  be  necessary  to 
take  for  railway  purposes.  It.  therefore,  in- 
<-l u <1< ■-  the  rights  of  an  owner  of  abutting 
property  in  the  street  taken  for  the  right  of 
war.  even  if  the  fee  i-  in  the  city. —  Valley 
Ry.  Co.  v.  Pouchet,  4  O.  C.  C.  1S7  (1889)  ;s.  c, 
■1  C.  D.  192;  -.  c,  51  Oh.  St.  571.  See  Ohio 
Soul  hem  R.  R.  Co.  v.  Ilinkle.  1  N.  P.  63 
(1894)  :   s.  c.  1  Dec.  6S2.     See  §  6416. 


Amount   necessary. 

The  corporation  is  to  determine  how  much 
is  necessaiy,  and  unless  there  is  a  clear  abuse 
in  the  attempted  exercise  of  this  power,  the 
court  upon  the  preliminary  hearing  will  not 
interfere  to  determine  the  matter. —  Ohio 
Southern  R.  R.  Co.  v.  Hinkle,  1  N.  P.  63 
(1894)  ;  s.  c,  1  Dec.  682. 

Appropriation    of    more     land    than    is 
necessary. 

Where  a  company  appropriates  more  land 
than  is  necessary  for  its  use,  it  cannot  by  a 
sale  to  another  company  of  the  surplus  land 
subject  the  landowner  to  the  occupancy  and 
burden  of  another  carrier,  and  such  sale  is  void 
as  to  the  landowner. —  Piatt  v.  Pennsylvania 
Co.,  43  Oh.  St.  228   (1885). 

Rights  of  owner  of  remainder   of  fee. 

Where  a  railway  company,  having  obtained 
from  the  tenant  for  life  a  quitclaim  deed  of 
premises  over  which  it  proposes  to  construct 
and  operate  a  permanent  line  of  railway,  is 
about  to  enter  upon  the  lands  for  the  purpose, 
against  the  objection  of  the  owner  of  the  re- 
mainder in  fee,  and  without  making  compen- 
sation to  nim,  such  proposed  action  on  the 
part  of  the  railway  company  may  be  enjoined 
at  the  suit  of  such  owner,  until  compensation 
is  made.  Such  owner  cannot  be  compelled  to 
await  the  termination  of  the  life  estate  before 
demanding  compensation,  nor  can  he  stand  by 
and  make  no  objection  to  the  construction  of 
the  road,  and,  after  the  death  of  the  life  ten- 
ant, evict  the  company  and  interrupt  public 
business. —  Gorrill  v.  Toledo,  etc.,  Ry.,  4  O.  C. 
C.  398,  406  (1890) ;  s.  c,  2  C.  D.  617. 

Interest  acquired  is  permanent. 

The   estate  to  be  acquired   for  right-of-way 
purposes  by  a  railway  must  be  a  permanent,  i 
not    a    temporary,    estate    or    interest. —  Se2 
Gorrill   v.   Toledo,   etc.,   Ry.   Co.,   4   O.   C.    C. 
398,  403   (1890);  s.  c,  2  C.  D.  617. 

Rights   of  owner  of  fee. 

Where  the  interest  acquired  is  only  an  ease- 
ment, the  owner  of  the  fee  retains  every  right 
in  the  land  appropriated,  not  inconsistent  with 
the  paramount  authority  of  the  company 
freely  and  unobstructedly  to  build,  repair,  and 
operate  its  railroad,  and  use  therefor  materials 
fairly  within  the  condemnation. —  See  Piatt 
v.  Pennsylvania  Co.,  43  Oh.  St.  228,  244  (1S85). 

Power  of  company  to  sell  the  easement. 

In  the  absence  of  a  statute  a  sale  by  a  com- 
pany of  a  part  of  the  easement  acquired  for 
its  right  of  way  is  not  good  as  against  tho 
owner  of  the  fee,  as  the  use  of  the  right  of 
way  by  a  second  company  was  not  a  burden 
taken  into  consideration  in  the  original  ap- 
propriation, and  the  fee  owner  can  recover 
damages. —  Platts  v.  Pennsylvania  Co.,  43  Oh. 
St.  228,  2tti  (1885).  See  Pittsburgh,  etc.,  Rv. 
Co.  v.  Garlick,  20  O.  C.  C.  561    (1900). 


I\.\l  LROAD    <  'ORPORATIONS. 


185 


Appropriation  of  Land,  etc.,   8  3281. 


Abandonment  of  easement. 

The  question  of  abandonment  or  aot  is  a 
question  of  intention,  and  the  intention  to 
abandon  may  doubtless  be  inferred  from  cir- 
cumstances where  they  are  strong  enough  to 
warrant  such  inference.— Hatch  v.  Cincin- 
nati, etc.,  R.  R.  Co.,  18  Oh.  St.  92,  121  (18G8). 
See  Wagner  v.  Cleveland,  etc.,  R.  R.  Co  2° 
Oh.  St.  563  (1872);  Pittsburgh,  etc.,  Ry  Co  v 
Garlick,  20  O.  C.  C.  561    (11)00). 

What   is   abandonment? 

An  abandonment  of  the  easement  acquired 
is  worked  by  nonuser  for  twenty-one  year-, 
or  by  a  conveyance  of  the  property. — Piatt 
v.  Pennsylvania  Co.,  43  Oh.  St.  228,  24*0  (1885)  ; 
Pennsylvania  Co.  v.  Piatt,  47  Oh.  St.  360 
(1890).  See  Wagner  v.  Cleveland,  etc.  R  R. 
Co.,  22  Oh.  St.  563  (1872). 

Abandonment  of  easement. 

Where  there  is  an  abandonment  of  the  ease- 
ment, the  interest  acquired  reverts  to  the 
owner  of  the  fee. —  Piatt  v.  Pennsylvania  Co., 
43  Oh.  St.  228  240   (1885). 

Condemnation  of  crossing. 

Land  occupied  by  a  railway  may  be  con- 
demned, if  necessary,  to  furnish  a  crossing 
for  another  road. —  Lake  Shore,  etc.,  Rv.  Co. 
V.   Cincinnati,    etc.,   Ry.   Co.,   30   Oh.   St.   604 

(1876). 

Appropriation   for   wharves. 

Under  this  act  a  railroad  company  is  not 
authorized  to  condemn  private  property  solely 
for  wharf  purposes. —  Iron  R.  R.  Co.  v.  City 
of  Ironton,  19  Oh.  St.  299   (1869). 

Appropriation  for  embankments,  etc. 

Railroads,  from  the  nature  of  the  locomo- 
tion thereon,  require  an  evenness  of  grade, 
and  this  necessitates  the  cutting  of  hills,  and 
the  filling  of  valleys.  In  making  these  cuts 
or  excavations  earth  and  material  must  be 
removed,  and  where  not  proper  to  be  used 
in  a  fill,  the  place  to  put  such  removed  ma- 
terial is  as  much  of  a  necessity  as  any  other 
matter  in  construction.  So  land  may  be  ap- 
propriated of  sufficient  width  to  form  a  basis 
for  embankments. —  Ohio  Southern  R.  R.  Co 
v.  Hinkle,  1  N.  P.  63  (1894) ;  s.  c,  1  Dec.  682. 

Land  for  depots. 

The  legislature  has  constitutional  power  to 
confer  upon  a  corporation  authorized  to  con- 
struct a  railroad,  the  right  to  appropriate 
grounds  necessary  for  its  use  as  a  depot. — 
Giesv  v.  Cincinnati,  etc.,  R.  R.  Co.,  4  Oh.  St. 
30S  '(1854). 

Temporary  right  of  way  cannot  be  ap- 
propriated. 

A  company  has  no  power  to  appropriate  a 
temporary  right  of  way.  say  for  three  year-. 
to  be  used  until  its  main  line  is  readv. —  Cur- 


«|J  ^Marietta,  etc.,    .....,,   0h.  8t. 

Appropriation    by    company    which     lias 
built  its  road. 

\  company  has  powei  to  condemn  land 
withstanding  it  has  buill  its  road  on  th( 
BOUgW    to    be    appropriated      Ohio    Bouthern 
•■'■  R.  v.  Hinkle,  I  X.  P.  63  (1894  De 

682. 

Side  tracks. 
A  company  baa  power  to  eondemn  land-  for 

new  side  tracks,  leading  from  the  main 

to  it-  depot   buildings,  whenever  they  become 

necessary    in    the   proper   management    of   the 

"'■"I.     Toledo,   etc..    Hv.   i  ...    v.    Daniels,    16 
Oh.  St.  390  (1865);  Cincinnati,  etc.,  I:    I  . 

v.    Spring    drove    Ave.    Co..    IS    W.    I..    I. 
(1886). 

Injunction  against  occupation. 

Where  a  railroad  company  i-  aboui  to 
on   lands   for   the   purpose    of   constructing    a 
road,  the   owner  of  the   land   may   have   an  in 
junction  to  restrain  the  company   until   com 
pensation    is    made. —  Gorrill    v.    Toledi 
Co.,  4  0.  C.  C.  398   (1890);  s.  c,  2  C.  I).  617. 

Judgment  lien. 

A  judgment  lien  may  attach  to  property 
acquired  under  this  section,  as  it  does  to  thai 

of  any   individual. —  Stewart   v.   Railwai 
53  Oh.  St.  151,  172   (1895). 

Power  of  eminent   domain. 

See  generally  Giesy  v.  Cincinnati,  etc..  R. 
R.  Co.,  4  Oh.  St.  30S   (1854). 

See  as  to  appropriation  of  land,  §  0414  et 
seq.,  and  notes. 

Appropriation    of    canal    lands  —  rights 

of  owner  of  fee. 

Where  a  railroad  company  appropriate-  the 
lands  of  a  canal  company,  the  owner  of  the  fee 
is   entitled    to   recover   the   full    value   of   the 
lands,  if  any.   taken  by  the  railroad  company, 
and  not  covered  by  the  former  appropriation 
by   the  canal   company,   and,  also,  a    full   and 
fair  compensation  for  such  additional  bu 
and  inconveniences,   not   common   to   the  gen- 
era]  public,  as  accrue  to  him  and  his  entire 
tract    on   which   the  easemenl    i-   imposed,  by 
reason    of   the   change   of   uses   to   which    the 
lands     appropriated     have     been     subject 
Hatch  v.  Cincinnati,  etc.,  R.   II.  '  o  ,  18  I 
92   (1868);    Voughl    v.  Columbus,  etc.,   R.  R. 
<  ....  58  Oh.  St.   123   (1898 

Sale  of  canal  lands  to  railways. 
See    Batch    v.   Cincinnati,   etc.,    Ry.   Co..    is 

Oh.  St.  92   (1868);   G lin  v.  Cincinnati.  et<-.. 

Canal  Co.,  is  Oh.  St.  180       868       I  Sncinnati, 
etc.,  R.  R.  Co.  v.  Zinn,  Is  Oh.  SI     U7     L868 
Voughl    v.  Columbus,  etc..   R.  R.  Co..  58  Oh. 
St.   123   (1898 


186 


Private  Corporations  in  Ohio. 


Power  to  Hold  Lands,  etc.,   §  3282. 


City     cannot     appropriate     for     use     of 
company. 

Morehouse    v.    Norwalk,    6    W.    L.    B.    267 
(1881). 


No  dower  in  land  appropriated. 

\  widow  .an  have  no  dower  right  in  prop- 
erty condemned  by  statute,  where  her  hus- 
band received  full  compensation  for  the  land 
taken.—  Little  Miami  R.  R.  Co.  v.  Jones,  5 
W.  L.  G.  5   (I860). 

6  3282.  POWER  TO  HOLD  LAND.—  Such  company  may  acquire,  by  purchase 
or  gift,  any  lands  in  the  vicinity  of  the  line  of  its  road,  or  through  which  the  same 
passes,  so  far  as  may  be  deemed  convenient  or  necessary  by  the  company  to  secure 
the  right  of  way,  or  such  as  may  be  granted  to  aid  in  the  construction  of  the  road,-  and 
hold  or  convey  the  same  in  such  manner  as  the  directors  may  prescribe,  but  all  such 
conveyances  acquired  by  gift,  to  said  companies,  shall  be  null  and  void,  unless  said 
company  complete  said  road  on  the  right  of  way  so  conveyed  within  five  years  from 
the  time  of  said  conveyance;  and  all  deeds  and  conveyances  made  by  the  company 
shall  be  signed  by  the  president,  under  the  seal  of  the  company.  (May  1,  1852, 
50  v.  274,  §  15.) 


Purpose  of  section. 

The  object  of  this  section  is  to  clothe  the 
railway  corporation  with  capacity  to  acquire 
by  purchase  or  gift  lands  that  are  convenient 
or  necessary  to  secure  the  right  of  way,  or 
any  lands  granted  to  and  in  the  construction 
of  the  road. —  State  ex  rel.  v.  Cincinnati,  etc., 
Ry.  Co.,  37  Oh.  St.  157   (1881). 

Power  to   acquire  land. 

A  railroad  company  has  power  to  acquire 
real  estate  only  when  such  power  is  granted 
to  it  by  statute  or  by  its  charter.—  Walsh  v. 
Barton,  24  Oh.  St.  28,  42   (1873). 

Property  held  subject  to  police  regula- 
tions. 

Every  railroad  company  maintains  and 
operates  its  property  subject  to  the  inherent 
power  in  the  state  to  adopt  such  regulations 
as  the  safety  and  welfare  of  the  community 
may  require. —  Lake  Shore,  etc.,  Ry.  Co.  v. 
Cincinnati,  etc.,  Ry.  Co.,  30  Oh.  St.  604  (1876). 

Right  to   hold  land  limited. 

The  right  of  a  railroad  corporation  to  hold 
land  is  not  an  unqualified  right,  but  it  is  lim- 
ited to  the  uses  and  purposes  of  the  corpora- 
tion, and  is  to  be  held  for  the  purposes  of  the 
grant  for  the  public  uses.  The  title  which  it 
has  in  its  right  of  way  is  a  qualified  title, 
subject  to  the  equal  right  of  another  railroad 
corporation  to  cross  the  same  with  its  track, 
provided  compensation  be  made  as  required  in 
the  ease  of  individuals  for  the  property  appro- 
priated, or  the  interest  therein  which  is  so 
appropriated. —  Lake  Shore,  etc.,  Ry.  Co.  v. 
Cincinnati,  etc..  Ry.  Co.,  30  Oh.  St.  604  (1876). 

Power   to  purchase   for  right  of   way. 

A  company  has  ample  power  to  buy  land 
for  its  right  of  way  when  convenient  or  neces- 
aary.— Walsh    v.    Barton,    24    Oh.    St.    28,   42 

(1873). 


Purchase  to  obtain  timber. 

A  company  has  power  to  purchase  land  to 
obtain  timber  or  materials. —  Lessee  of  Over- 
meyer  v.  Williams,  15  Oh.  26   (1846). 

Purchase   for   unauthorized  purpose. 

Even  if  a  company  abuses  its  discretion  and 
power  in  the  purchase,  and  does  in  fact  buy 
for  a  valuable  consideration  lands  not  con- 
venient and  necessary  to  its  right  of  way,  a 
title  derived  from  such  company  is  good  and 
indefeasible.  The  property  would  not  escheat, 
and  estoppel  against  all  concerned  would  cut 
off  all  attack.  The  state  might  proceed 
against  the  corporation,  but  could  not  affect 
the  title  to  the  land.— Walsh  v.  Barton,  24 
Oh.  St.  28,  42  (1873). 

Fixtures  —  stone  piers  are  not. 

Stone  piers  built  by  a  railroad  company  as 
a  part  of  its  railroad,  on  lands  over  which  it 
has  acquired  the  right  of  way  for  its  road,  do 
not,  though  firmly  imbedded  in  the  earth,  be- 
come the  property  of  the  owner  of  the  lands  as 
a  part  of  the  realty.  And,  on  the  purpose  of 
the  completing  of  *  the  railroad  being  aban- 
doned, the  company  may  remove  such  struc- 
tures as  personal  property. —  Wagner  v. 
Cleveland,  etc.,  R.  R.  Co.,  22  Oh.  St.  563 
(1872). 

Right    of  way   includes   land   necessary. 

Where  a  railway  company  was  entitled  by 
contract  to  a  deed  for  a  definite  strip  of 
ground  for  a  right  of  way,  completed  its  track 
along  said  strip  near  its  center,  and  was  in 
actual  possession,  such  possession  included  so 
much  ground  upon  either  side  of  said  tract  as 
was  reasonably  necessary  for  the  convenient 
use  and  maintenance  of  the  railroad,  in  the 
customary  mode,  and  was  constructive  notice 
to  a  subsequent  purchaser  of  the  actual  equi- 
table title  of  the  company.—  Day  v.  Railroad 
Co.,  41  Oh.  St.  392   (1884). 


Railroad  (  !orporai  cons. 


187 


Power  to  Hold  Lands,  etc.,   S  3282. 


Grants    of    right    of    -way    without    limit 
of  time  are  perpetual. 

Where  a  landowner  granted  a  righl  of  way 
to  a  railroad  company  organized  under  a  char- 
ter in  perpetuity,  and  the  granl  contains  no 
limit  as  to  time,  the  easemenl  will  be  per 
petual,  unless  terminated  by  release  or  aban 
donment. — function  I!.  R.  Co.  v.  Ruggles,  7 
Oh.  St.  I  (1857).  Sec  Bosworth  v.  Pittsburg, 
etc-,  Ry.  Co.,  1  C.  C.  69,  70  I  L885)  ;  s.  c,  I 
C.  D.  42. 

Right    of   way    contract  —  ambiguity. 
An  owner  of  land  who  sells  to  a  company  a 

right  of  way  for  its  road  by  a  writ  ten  con- 
tract, in  which  the  description  of  the  land  is 
indefinite,  and  after  the  road  is  constructed 
accepts,  with  full  knowledge  of  the  farts  and 
withoul  objection,  the  compensation  agreed  to 
he  paid,  and  acquiesces  for  a  period  of  years 
in  the  occupancy  by  the  company,  is  estopped 
to  deny  that  such  location  is  the  location 
originally  agreed  upon  and  to  demand  addi- 
tional compensation. —  Railway  Co.  v.  Wil- 
liams. 53  Oh.  St.  268  (1895).  See  Cleveland, 
etc.,  Ry.  Co.   v.  Reid,  4  N.  P.   127   (1896). 

Same  subject. 

Where  the  terms  of  a  right  of  way  grant 
are  general  and  indefinite,  its  location  and  use 
by  the  grantee,  acquiesced  in  by  the  grantor, 
will  have  the  same  legal  effect  as  if  it  had 
been  fully  described  bv  the  terms  of  the  grant. 

—  Warner  v.  Railroad  Co.,  39  Oh.  St.  70 
(1883). 

Agreement  to   arbitrate   as  to   price  for 

right  of  way. 

Where  property-owners  agree  with  a  rail- 
road company  to  convey  land  for  its  track, 
and  to  submit  to  arbitration  the  question 
of  compensation  to  be  paid  them  by  the 
company  for  the  land  and  damages,  such 
arbitration  does  not  involve  the  question  of 
possession  and  title  to  real  estate  within  the 
meaning  of  §  5601.— C.  P.  &  V.  R.  R.  Co.  v. 
Duckwall  (Sup.  Ct.),  46  W.  L.  B.  92  (1901). 

Selection    of    right    of   way   under    con- 
tract. 

Where  the  owner  of  land  granted  to  a  com- 
pany the  right  to  select  a  strip  thereof  for  its 
right  of  way,  and  from  the  terms  of  the 
grant  and  the  circumstances  it  is  clear  that 
both  parties  understood  that  the  righl  granted 
was  to  be  exercised  at  the  time  of  the  final 
location  and  construction  of  the  railroad,  and 
not  afterward,  a  court  of  equity  will,  by  in- 
junction, restrain  such  railroad  company  from 
taking  possession  of  any  additional  part  of 
said  land  after  its  railroad  has  been  located. 

—  Warner  v.  Railroad  Co.,  39  Oh.  St.  70 
(1883). 

Donations     conditioned     on     location  — 
change  of  location. 

Where  a  railroad  company  has  received 
from  private  parties  donations  of  land  in  con- 


sideral  ion  t  hat    it   should  locate  it  -  road 
pari  icular  place,  t  he  company  w  ill  n 
tnitted  to  effect  ual  e  a  change  in  fai  ! 
not  iii  name)  of  i  he  line  of  its  r< 
-mil   place,   bj    gel  t  in;:  up  a   n<  at  ion 

and  constructing  a  new  road  parallel  with  tin- 
old   one,   under  ;i    different   charter,  and   per- 
mitting it>  old   line  to  l'o   i"  decay,  wit 
compensating   the   parties   with   whom    it 
contracted    as    aforesaid.      Chapman    v.    Mad 
River  i:.  R.  Co.,  6  Oh.  St.  119  1 1856). 

Gift  of  land  conditioned  on  location  of 

depot  —  performance. 

Where  land  is  given  to  a  railroad  company 
on  condition  that  it  should  I"-  occupied  for 
depot  grounds  a  substantial  compliance  with 
the  terms  of  the  deed  will  prevent  a  recovery 
of  t  he  land  for  failure  to  perform  the  condi- 
tional agreement.  -Pittsburg,  etc.,  Ry.  Co.  v. 
Rose,  24  Oh.  St.  219  (1873). 

Rights    of    vendor    on    breach    of    condi- 
tion subsequent. 

A  condition  subsequent  does  not  operate  of 
itself,  and  the  right  to  insisl  upon  a  forfeiture 
may  be  waived  or  lost  by  estoppel.-  See  Field 
v.  'Lake  Shore,  etc.,  Ry.  Co.,  23  0.  C.  C.  I 
,  1897)  ;  >.  c,  62  Oh.  St.  633. 

Land    contracts  —  notice    to    subsequent 
purchasers. 

Where  the  vendor  retains  the  legal  title 
pending  the  payment  of  the  purchase  money 
subsequent  purchasers  are  charged  with  no- 
tice.— Seasongood   v.   Miami    Valley    Ry.   Co., 

9  W.   L.   B.   256    (1883):    Davton.   el     .    1!     I! 
Co.    v.   Lawton,  20  Oh.  St.  401    (1870).     See 
Compton  v.  Wabash,  etc.,  Ry.  Co..  7  W.  L.  B. 
118,  122  (1882). 

Dedication,  what  is  not. 

Dedication  is  not  one  of  the  railroad  com- 
pany's means  of  acquiring  property,  and  there 
is  no  dedication  from  the  fact  of  landowners 
putting  a  town  plat  on  record  with  a  lot 
reserved  thereon  for  a  depot. —  See  Todd  v. 
Pittsburg,  etc.,  R.  R.  Co.,  19  Oh.  St.  514 
(1869). 

Execution  of  deed. 

A  deed  executed  by  the  president  of  a  rail- 
road company  in  due  form,  under  the  seal  of 
the  corporation,  and  delivered,  will  be  pre- 
sumed to  have  been  authorized  by  the  direct- 
ors; and  the  mere  fad  that  such  authority  is 
not  found  on  their  minutes  will  not  rebut  the 
presumption. —  Cincinnati,  etc.,  R.  R.  Co.  v. 
Harter,  26  Oh.  St.  426  (1875). 

Deed  —  proof  of  execution. 

A  deed  purporting  to  have  been  executed  by 
the  president  of  a  railroad  corporation,  under 
the  seal  of  the  corporation,  as  authorized  in 
this  section,  if  objected  to.  cannot  be  given  in 


188 


Private  Corporations  in  Ohio. 


Use  of  Streets,  etc.,  §  3283. 


evidence    without    proof    of    its    execution.— 
Walsn  v.  Barton,  24  Oh.  St.  28  (1873). 

License  to  take  gravel  from  right  of 
way  need  not  he  signed  hy  president. 
See  Greene  v.   Trustees  of  York  Township, 

8  X.  P.  491    (1899). 

Snhscriptions   to    stock   payahle    in   real 

6std.t6 

See  Goodin  v.  Evans,  18  Oh.  St.  150   (1868). 

Deed  of  right  of  way. 

May  be  held  in  escrow  by  the  agent  of  the 
company. —  See  Cincinnati,  etc.,  R.  R.  Co.  v. 

Iliff.  13  Oh.  St.  235   (1862). 


Land    suhject   to    street    assessments. 

Northern,  etc.,  R.  R.  Co.  v.  Connelly,  10  Oh. 
St.  159  (1859):  Baltimore,  etc.,  R.  R.  Co.  v. 
Com'rs,  19  Oh.  St.  589  (1869). 

Construction  of  deed  for  rigkt  of  way. 

See  Belmer  v.  Cincinnati,  etc.,  R.  R.  Co.,  10 
W.  L.  B.  232   (1883). 

Enforcement  of  land  contracts. 

See  §  6449  and  notes. 

Construction    of    covenants    as    to    title 
in  deed. 

See  Pittsburg,  etc.,  Ry.  Co.  v.  Garlick,  20 
O.  C.  C.     561   (1900). 


§  3283.  USE  OF  STREETS  —  HOW  OBTAINED.—  If  it  be  necessary,  in  the 
location  of  any  part  of  a  railroad,  to  occupy  any  public  road,  street,  alley,  way,  or 
ground  of  any  kind,  or  any  part  thereof,  the  municipal  or  other  corporation,  or  public 
officers  or  authorities,  owning  or  having  charge  thereof,  and  the  company,  may  agree 
upon  the  manner,  terms,  and  conditions  upon  which  the  same  may  be  used  or  occu- 
pied; and  if  the  parties  be  unable  to  agree  thereon,  and  it  be  necessary,  in  the  judg- 
ment of  the  directors  of  such  company,  to  use  or  occupy  such  road,  street,  alley,  way, 
or  ground,  such  company  may  appropriate  so  much  of  the  same  as  may  be  necessary 
for  the  purposes  of  its  road,  in  the  manner  and  upon  the  same  terms  as  is  provided 
for  the  appropriation  of  the  property  of  individuals,  but  every  company  which  lays  a 
track  upon  any  such  street,  alley,  road,  or  ground,  shall  be  responsible  for  injuries 
done  thereby  to  private  or  public  property  lying  upon  or  near  to  such  ground,  which 
may  be  recovered  by  civil  action  brought  by  the  owner,  before  the  proper  court,  at 
any  time  within  two  years  from  the  completion  of  such  track.  (April  15,  1857,  54 
v.   133,  §   12.) 


Authority  conferred  hy  section. 

The   extent   of  the   authority   conferred   by 
this   section   on  municipal   corporations   is   to 
agree  with  railroad  companies  upon  the  man- 
ner, terms  and  conditions  upon  which  a  street, 
etc..  may  be  used  and  occupied  by  a  railroad. 
"  if  it   be  necessary   in   the  location  "    of  the 
railroad   for    any   part   of   it   to   occupy   such 
street,  etc.;  and  then  they  may  agree  for  the 
use  of  so  much  of  the  street  only  as  is  neces- 
sary for  the  purposes  of  the  railroads.     This 
limitation  is  manifest  from  the  provision  that 
if  the  parties  are  unable  to  agree,  the  company 
may  appropriate  so  much  of  the   street  as  is 
necessary   for  the  purposes   of  its  road.     The 
object  of  the  appropriation  is  to  acquire  such 
use   of    the    street,    etc.,    as    could    have    been 
granted  by  agreement,  and  no  greater  use  can 
be  obtained  in  the  one  mode  than  in  the  other; 
the  ri'jlit    acquired  in  either  is  limited  to  the 
use  of  80  much  of  the  street  as  may  be  neces- 
sary for  the  purposes  "of  the  railroad."     The 
statute  due-  not  contemplate  the  destruction 
of  the  street,  or  the  cessation  of  its  use  by 
the  public,  or  its  withdrawal  from  the  control 
and  supervision  of  the   proper  municipal   offi- 


cers, nor  is  authority  found  in  it  for  any 
agreement  having  such  result.  Therefore, 
when  a  city  gives  a  railroad  company  the 
right  to  cross  a  street  below  grade,  and  build 
a  bridge  over  the  i  xilroad,  it  is  not  prevented 
by  such  agreement  from  thereafter  lowering 
the  street  so  as  to  cross  the  railroad  at  grade. 
—  Railroad  Co.  v.  Defiance,  52  Oh.  St.  262, 
308   (1895). 

Effect  of  section  on  liability  of  munici- 
pality. 

The  liability  of  the  municipality  is  not  af- 
fected, nor  the  remedy  against  it  taken  away, 
by  this  section,  but  in  the  action  against  the 
municipal  corporation  the  plaintiff  is  not  enti- 
tled to  recover  d.. mages  which  are  in  the 
nature  of  compensation  for  the  additional 
burden  in  the  street  arising  from  the  location 
and  construction  of  the  tracks  therein;  for 
damage-  of  thai  character  the  municipal  cor- 
poration is  not  liable. —  Zanesville  v.  Fannan. 
53  Oh.  St.  605  (1S95).  See  Steubenville  v. 
McGill  41  Oli  St.  235  (1884).;  Dillenbach  v. 
Zenia,  41  Oh.  St.  207  (1884);  Zanesville 
v    Spoerl,  54  Oh.  St.  634    (1896). 


I\.\i lroad  (  Corporations. 


189 


Use  of  Streets,  etc.,  8  3283. 


What   agreements   not   within   this    sec- 
tion. 

Agreements  with  existing  and  operating 
railroads  as  to  the  repair  or  alteration  of 
crossings,  bridges,  etc.,  are  do!  within  this 
section.  —  See  Railroad  Co.  v.  Defiance,  52  Oh 
St.  262,  313  (1895). 

Control  over   streets  —  effect  of   section. 

The  powers  conferred  on  municipal  corpora- 
tions with  respect  to  the  opening,  improving 
and  repairing  of  streets  are  held  in  trust  for 
public  purposes,  and  are  continuing  in  their 
nature,  to  be  exercised  from  time  to  time  as 
the  public  interests  may  require:  and  they 
cannot  be  granted  away  or  relinquished,  or 
their  exercise  suspended  or  abridged,  excepl 
when  and  to  the  extent  legislative  authority  is 
expressly  given  to  do  so;  such  authority  is 
not  given  by  this  section.  —  Railroad  Co.  v. 
Defiance,  52  Oh.  St.  262  (1895).  See  Wabash 
E.  R.  Co.  v.  Defiance,  167  U.  S.  88   (1897  |. 

Abandonment  of  streets. 

It  was  not  the  intention  of  the  legislature 
by  this  section  to  permit  municipal  author- 
ities to  abandon  and  surrender  to  railroads 
any  streets  and  highways  and  to  deprive  the 
public  of  the  vise  of  the  same  farther  than  was 
necessary.  The  contracts  authorized  by  this 
section  contemplate  the  use  of  the  streets  by 
the  railways  in  common  with  the  public.  — 
Lake  Shore,  etc.,  Ev.  Co.  v.  Elvria,  14  O.  C.  C. 
48  (1897)  :  s.  c,  7  C.  D.  312.  See  Railroad  v. 
Defiance,  52  Oh.  St.  262  (1895):  Cleveland, 
etc.,  R.  E.  Co.  v.  Cincinnati,  1  Goeble,  269 
(1S90). 

Exclusive  rights  cannot  he  acquired  by 
railroad. 

A  railroad  does  not  acquire  an  exclusive 
right  to  the  use  of  a  street  by  the  fact  that 
the  street  was  unimproved  and  little  used  at 
the  time  of  the  grant,  that  the  company  made 
a  cut  through  the  street  and  fenced  both  sides 
to  prevent  people  from  falling  into  the  cut, 
and  prevented  the  public  from  using  the  cross- 
ing, and  failed  to  restore  the  street  for  over 
twenty-one  vears.  —  Lake  Shore,  etc.,  Ry.  Co. 
v.  Elyria,  14  O.  C.  C.  4S  (1897)  ;  s.  c,  7  C.  D. 
312. 

Exclusive  rights  as  to   other  companies 
cannot  he  acquired. 

See  Kinsman,  etc..  E.  E.  Co.  v.  Broadwav. 
etc.,  E.  E.  Co.,  36  Oh.  St.  239   (1880). 

Unauthorized   use  —  ejectment. 

Ejectment  will  lie  by  a  city  to  recover  pos- 
session of  streets  in  which  the  public  has  an 
easement.  —  Cleveland  v.  Cleveland,  etc.,  Ev. 
Co.,  93  Fed.  113   (1899). 

Persons    on    tracks    in    streets    are    not 

trespassers. 

Where  a  railroad  occupies  a  street  with  its 
tracks,  the  ordinary  presumption  is  that  of  a 
joint  use  by  the  public  ami  the  railroad  com- 
pany, and  a  person  injured  upon  the  track  in 
the  street  cannot  be  regarded  as  a  trespasser. 


Smith   \.   Pittsburg,  etc.,   R  ,   |.„| 

783    i  1898)  ;    Baltimore,    etc.,    I:,    l:.    I 
Anderson,  BS  Fed.  1 1  3 

Unauthorized       use  —  liability      for      in- 
juries. 

The  unauthorized  occupation  and  u 
highways  bj  b  railway  companj  makes  such 
coropanj  a  trespasser,  and  liable  foi  such 
damages  as  proximately  result  to  persona  oi 
property  in  the  absence  oi  contributory  negli- 
gence. Pittsburg,  etc.,  Rj .  Co.  v.  II- 
Fed.  818   i  L899). 

Unauthorized   use    of    streets    is    a    nuin- 

auce. 

In  the  absence  of  authority,  the  construc- 
tion and  use  by  a  railroad  company  of  its  road 
longitudinally  on  a  public  highway  is  a  public 
nuisance.  —  See  Pittsburg,  etc.,  Ry.  <'.,.  v. 
Hood.  94  Fed.  tils   ,  (899  |. 

Injunction  against  railroad   in   a   street 
as  a  nuisance. 

See  Sargent  v.  <  >hio,  etc.,  R.  R.  <  o.,  1  llan.lv, 
52   (1854). 

Canal  banks  may  not  be  used  under  this 

section. 

The  board  of  public  work-  of  I  he  state  is  not 
authorized  by  law  to  granl  to  a  railroad  com- 
pany the  ri.Lflit  to  lay  its  track,  and  to  main- 
tain and  operate  a  railroad,  on  and  alon 
berme  bank  of  a  navigable  canal  belonging  to 
the  state.  —  State  ex  rel.  v.  Cincinnati 
Ry.  Co.,  37  Oh.  St.  157   (1881). 

"  Way  "  —  "  public    ground  "  —  interpre- 
tation. 

The  word  "  way  "  or  "  public  ground  "  does 
not  include  the  public  navigable  canal-  of  tin- 
state  in  express  terms,  nor  by  necessary  im- 
plication. A  way.  in  the  connection  in  which 
it  stands  in  t  hi-  aecl  ion.  tnu-t  be  i .  . 
something  of  the  same  nature  and  kind 
road  or  street.  —  State  ex  rel.  v.  Cincinnati, 
etc.,  Ry.  Co.,  37  Oh.  St.  L57   I  1881). 

Effect  of  §  3284  on  this  section. 

A  railroad  cannot  CTOB8  a  street  or  highway 
in  a  city  under  §  32S4.  but  tnu-t  obtain  the 
right  to  do  so  under  this  section.  —  Youngs- 
town  v.  Pittsburg,  etc.,  R.  R.  Co.,  3  0.1  C. 
214  (18S8)  :  s.  c.  2  ('.  1).  121  :  Cincinnati, 
R   R.  Co.  v.  Cincinnati.  8  W.  1..  B.  334    |  L882    . 

Consent  of  city  not  revocable. 
A  city's  granl    of  consent    to   us 
does  not   create  a  mere  revocable  license,  but 
the  railroad  has  the  same  rights  as  if  tl 
of    the    streei    had    been    condemned. —  P 
burg,  etc.,  R.  II.  Co.  V.  Cincinnati.   16  W.  L.   B. 
367    (1886):   Cincinnati   v.   Pittsburg,  etc.,   R. 
R.  Co.,  30  W.  L.  B.  137    I  1893   .     -•  ■    I  incin- 
nati,  etc.,  Ry.  Co.  v.  Carthage,  36  Oh.  St 
1881). 

Power  to  divert  highway. 

A  contract  may  lie  made  with  a  railway 
company   with   respect    to   the   manner,   terms 


190 


Private  Corporations  in  Ohio. 


Use  of  Streets,  etc.,   §   3283. 


and  conditions  upon  which  such  company  may 
occupy,  cross  or  divert  a  public  highway  in 
the  construction  of  its  railroad:  and  such 
contract,  when  fairly  made,  is  valid,  and  will 
be  enforced  the  same  as  other  valid  contracts. 
—  Megrue  v.  Commissioners,  15  O.  C.  C.  242 
|  L897)  ;  s.  c,  8  C.  D.  262. 

Construction   of  contract. 

The  grant  of  the  use  of  a  street  by  a  city  to 
a  railroad  "  as  such  railroad  should  deem  it 
necessary  and  expedient  "  means  such  use  as 
is  reasonably  necessary  and  expedient  for  the 
railroad,  with  due  regard  for  the  convenience 
of  the  public.  —  Lake  Shore,  etc.,  Rv.  Co.  v. 
Elvria.  14  0.  C.  C.  49  (1897)  ;  s.  c,  7  C.  D. 
312. 

Conditions  to  consent  to  use. 

Reasonable  conditions  essential  for  the  pro- 
tection of  the  public  interests  may  be  imposed 
in  a  grant  to  a  railway  company  of  the  right 
to  use  a  street,  and  if  accepted  by  the  com- 
pany are  binding  upon  the  parties.  A  restric- 
tion limiting  the  use  of  the  tracks  to  the  night 
hours  is  a  valid  and  reasonable  condition.  — 
Pittsburg,  etc.,  Ry.  Co.  v.  Hood,  94  Fed.  618 
(1899);  Louisville  Trust  Co.  v.  Cincinnati, 
76  Fed.  296  (1896)  ;  s.  c,  10  0.  F.  D.  112. 

Right  of  city  to  extend  streets  across 
track  —  construction   of  grant. 

^Yhere  a  railroad  company  is  permitted  to 
cross  streets  in  a  city  on  condition  that  if  the 
city  thereafter  desires  to  extend  any  streets  or 
alleys  across  the  railroad  tracks,  it  shall  be 
granted  right  of  way  free  of  damage  and  ex- 
pense, and  without  condemnation  proceedings, 
the  company  is  estopped  from  claiming  the 
city  has  no  right  to  extend  streets.  —  Chicago, 
etc.,  R.  R.  Co.  v.  Hamilton,  3  O.  C.  C.  455 
(1888)  ;  s.  c,  2  C.  D.  259. 

Appropriation  of  city  of  land  for  street 
across  a  railroad. 

See  §  2232  et  seq. 

Duty  of  company  to  repair  —  construc- 
tion of  grant. 

Where  a  grant  of  right  to  use  a  street  under 
this  section  bound  the  company  to  grade  and 
gravel  the  streets,  the  company  is  not  re- 
leased from  the  duty  of  grading  and  graveling 
by  reason  of  an  inoperative  ordinance  rescind- 
ing the  original  consent  of  the  city.  On  the 
failure  of  the  company  within  a  reasonable 
time  to  grade  aim  graved  the  streets,  a  right 
of  action  accrues  to  the  city  without  special 
notice  or  demand  on  the  companv.  —  Cincin- 
ii.iti.  etc.,  Ry.  Co.  v.  Carthage,  36*Oh.  St.  631 

L881). 

Contract,  when  made  by  county  com- 
missioners, should  be  entered  on  min- 
utes. 

Although  it  is  essential  to  the  validity  of  a 
contrail  entered  into  by  county  commissioners 
that  it  be  entered  on  the  minutes  of  their  pro- 
ceedings by  the  auditor,  where  the  contract 
has  been  fully  performed  on  the  part  of  the 


county,  the  other  party  to  the  contract  cannot 
resist  performance  on  his  part  on  the  ground 
that  it  was  not  so  entered.  —  Commissioners 
v.  Baltimore,  etc.,  R.  R.  Co.,  37   Oh.  St.  205 

(1S81). 

Highways    occupied    without    consent  — 
action  by  authorities  for  damages. 

See  Lawrence  R.  R.  Co.  v.  Commissioners, 
35  Oh.  St.  1   (1878). 

Cleveland  lake  front  cases. 

Holmes  v.  Cleveland,  etc..  R.  R.  Co.,  93  Fed. 
100  (1861)  ;  Cleveland  v.  Cleveland,  etc.,  R.  R. 
Co.,  93  Fed.  113   (1899). 

Section    6448    does    not    affect  this    sec- 
tion. 

This  section  and  §  6448  are  quite  consistent 
and  may  both  stand  as  furnishing  to  the  pri- 
vate proprietor  an  election  of  remedies.  He 
cannot  have  both,  either  concurrently  or  in 
succession :  and  a  recovery  under  this  section 
for  all  injuries  done  to  his  property  by  the 
occupancy  complained  of  would  estop  him 
from  claiming  under  §  6448  that  such  occu- 
pancy was  without  his  consent,  and  that  full 
compensation  had  not  been  made.  —  Grafton 
v.  Baltimore,  etc.,  R.  R.  Co.,  12  W.  L.  B.  214 
(1884);  s.  c.  31  Fed.  309.  See  Baltimore, 
etc.,  R.  R.  Co.  v.  Lersch,  58  Oh.  St.  652 
(1898)  :  Railroad  Co.  v.  Campbell,  51  Oh.  St. 
328   (1894). 

Effect  of  agreement  of  city  and  railroad 

on  land   owner. 

The  agreement  between  the  authorities  in 
charge  of  the  street  or  road  and  the  railroad 
company  can  in  no  way  affect  the  right  of  the 
landowner  to  claim  compensation.  —  Railroad 
Co.  v.  O'Harra,  48  Oh.  St.  343   (1891). 

Right  of  action  prior  to  the  enactment 
of  this   section. 

See  Parrot  v.  Cincinnati,  etc.,  R.  R.  Co.,  3 
Oh.  St.  330  (1854);  s.  c,  10  Oh.  St.  624 
(1858)  :  Little  Miami  R.  R.  Co.  v.  Naylor,  2 
Oh.  St.  235   (1853). 

Common-law   remedy  —  limitations. 

Although  a  remedy  existed  at  common  law, 
this  section  now  governs,  and  the  limitation  is 
two  vears.  —  Columbus,  etc.,  R.  R.  Co.  v. 
Mowatt,  35  Oh.  St.  284   (1880). 

Action    to    compel    condemnation,    limi- 
tation. 

The  limitation  in  this  section  does  not  af- 
fect the  right  to  compel  condemnation  within 
twenty-one  years  after  the  taking  of  the  land. 
—  Railroad  Co.  v.  O'Harra,  48  Oh.  St.  343 
(1891). 

Proceedings  to  compel  appropriation. 

The  owner  of  lands  abutting  on  a  highway 
occupied  by  a  railroad  company,  without  his 
consent  and  without  having  made  compensa- 
tion to  him.  may  commence  an  action  to  com- 
pel the  railroad  to  appropriate  the  right  of 
way   for   its   road.  —  Lawrence   R.   R.    Co.   v. 


Raj  lroad  <  Corporations. 


191 


Use  of  Streets,  etc.,  S  3283. 


Williams,  35  Oh.  St.  168  (1878).    See  Kramei 
v.    Toledo,   etc.,    R.    R.   Co.,    53    Oh.    St.    13U 

(18!).-)). 

Injunction  by  property  owner. 

Where  a  city  has  granted  to  a  railway  com 
pany  the  right  to  lay  its  l racks  over  a  street, 
the  construction  of  such  tracks  will  be  en- 
joined at  the  suit  of  an  abutting  property 
owner,  whose  consent  has  not  been  obtained, 
where  it  appears  that  the  construction  and 
operation  of  such  railroad  would  substantially 
interfere  with  his  rights  and  easements  in  the 
streets,  and  damage  his  property,  until  such 
railroad  shall  have  fully  compensated  such 
owner,  and  in  such  case  it  is  immaterial 
whether  the  fee  is  vested  in  the  city  or  in  the 
abutting  owners,  so  long  as  it  is  held  upon  the 
same  defined  uses.  —  Railway  Co.  v.  Lawrence, 
38  Oh.  St.  41  (1882)  :  Toledo  Bending  Co.  v. 
Manufacturers  Ry.  Co.,  2  N.  P.  317  (1895)  ; 
s.  c,  3  Dec.  430.  See  Taphorn  v.  Marietta, 
etc.,  R.  R.  Co.,  4  W.  L.  B.  988  (1879)  ;  s.  c, 
11  W.  L.  B.  92;  Dyer  v.  Cincinnati,  etc.,  Rv 
Co.,  7  0.  C.  C.  255   (1893)  ;  s.  c,  4  C.  D.  584. 

Same  subject  —  not  necessary  that  prop- 
erty  should   abut. 

See  Madden  v.  Pennsylvania  Ry.  Co.,  11  C. 
D.  571   (1900). 

Mandatory  injunction  to  restore. 

Where  a  railroad  company,  under  an  ordi- 
nance of  the  city  granting  the  right  to  lay  its 
tracks  in  a  certain  street,  proceeds  without, 
having  first  obtained  the  consent  of  abutting 
property  owners  to  tear  up  the  street  to  con- 
struct its  road,  a  mandatory  injunction  will 
be  granted  on  the  suit  of  an  abutting  property 
owner  whose  property  will  be  damaged  by  such 
construction,  ordering  the  company  to  restore 
the  street  to  its  former  condition.  —  Toledo 
Bending  Co.  v.  Manufacturers  Ry.  Co.,  2  X.  1*. 
317  (1895)  ;  s.  c,  3  Dec.  430.  See  Varwig  v. 
Cleveland,  etc.,  R.  R.  Co.,  54  Oh,  St.  455 
(1896)  ;  Cincinnati,  etc.,  R.  R.  Co.  v.  Cincin- 
nati, 8  W.  L.  B.  334  (1882). 

Extent  of  liability. 

A  railroad  company  cannot  avoid  liability 
for  damages  to  abutting  property  upon  the 
theory  that  the  city  would  not  be  liable,  and 
thus  acting  under  the  authority  of  the  city,  be 
relieved  from  liability  except  to  the  extent  the 
city  would  be  liable.  By  no  arrangement  with 
the  municipal  authorities  can  a  railway  in 
any  manner  impair  the  value  of  abutting  prop- 
erty on  a  street  on  the  strength  of  the  proposi- 
tion that  the  city  itself,  for  its  uses,  might 
take  the  property,  and  not  be  liable  for  such 
compensation  as  would  be  required  at  the 
hands  of  a  private  company. —  bake  Shore, 
etc.,  Ry.  Co.  v.  Brown.  Tti  0.  C.  C.  269  i  1896)  : 
s   c,  9  C.  D.  37. 

Joint    liability    of    lessor    and    lessee    of 
railroad. 

Where  one  company  raised  the  grade  and 
laid  an  additional  track',  and  the  other  took 
possession   and   continued   the   permanent   use 


'What  property  is  "  near  to." 

Property  is  "near  to"  a  street,  so  ■>-  to 
enl  it  le  t  be  ow  ner  to  avail  himself  of  t  be 
edy  given  by  the  Btatute,  if  the  injury  to  it  ui 
the  direct  and  necessarj  result  of  the  occn 
pancy  of  the  Btreet  by  the  track  oi  other 
-i  i  ui  i  area  of  a  ra  ilroa  l  companj  .  And  a  n 
injury  arises  when  the  diminution  of  the  value 
of  the   property   can   be   fairlj    attributed    to 

such    use  and   occupancy    of   the   Street. 

herd  v.  Baltimore,  etc.,  R.  R.  I  o.,  130  I  - 
42ti.  432  |  1888)  :  -.  c,  6  0.  F.  D.  322;  Wheel- 
ing, etc.,  R.  R.  Co.  c.  McLaughlin,  L5  0.  <     C. 

1  (1897):  s.  c..  7  C.  I).  647;  Columbus,  etc., 
R.  R.  Co.  v.  Mouatt.  35  Oh.  St.  284   I  L880 

Statute  of  limitations. 

The   limitation   of   two  I    by    t  bi- 

section  does    not     run    in    favor    of    a    railroad 
company  which  occupies  a  Btreel  without  con- 
sent or  condemnation. —  Lawrence  R.   I: 
v.  Cobb,  35  Oh.  St.  94   (1878). 

Statute   of  limitations. 

The  provision  of  this  section  by  which  an 
action  brought   under  this  Bection  i-  required 

to  be  commenced  within  two  year-  alter  the 
completion  of  the  track,  is  a  statute  of  limita- 
tion, and  a  delay  beyond  thai  period  due-  not 
extinguish  the  right  of  recovery.  If  the  rail- 
road company  does  not,  either  by  demurrer  oi 
answer,  interpose  an  objection  on  account  oi 
the  lapse  of  time,  but  proceeds  to  trial  on  the 
merits,  it  will  be  deemed  to  have  waived  the 
benefit  of  the  provision.  —  Baltimore,  etc.,  R. 
R.  Co.  v.  bet -eh.  58  Oh.  St.  639   I  18!  - 

■When  is  track  completed. 

The  track  is  completed  whenever  it  i-  put  in 
condition  fit  for  permanent  use  in  running 
trains.  —  See  Railway  Co.  v.  Gardner,  45  Oh. 
St.  309.  325  (1887).  ' 

Action  by  administrator. 

An  action  by  an  administrator  t«>  recover  of 

a   railroad   company   compensation   and   dam- 

for  wrongfully  taking  and  appropriating 

land-  of  the  decedent  during  his  lifetime,  can- 
not bi  maintained,  for  the  reason  that  such 
wrongful  taking  did  not  divest  the  decedent 
of  his  title  to  the  land:  and  the  lamb  there- 
fore, descended  at  his  death  to  his  h<  i 
Railway  Co.  v.  0'Harra,  50  Oh.  St.  667     1- 

Same  subject. 

\n  action  may  be  maintained  by  an  admin- 
i  to  recover  for  damages  w  hi 
in  the  lifetime  of  the  decedent  from  the  wrong- 
ful use  made  of  the  land-,  the  interruption  of 
isement,  and  the  consequential  injuries 
to  other  lands,  for  which  he  could  have  main- 
tained a  personal  action.  —  Railway  Co.  v. 
0'Harra,  50  Oh.  St.  667      1893). 


192 


Private  Corporations  in  Ohio. 


Use  of  Streets,  etc.,  §  3283. 


Action     by     mortgagee     for     injury     to 
mortgage   security. 

See  Cameron  v.  Cincinnati.  17  W.  L.  B.  153 
I  1886). 

Title  of  property   owner  —  proof. 

In  an  action  under  this  section,  the  plain- 
tiffs title  may  be  established  by  proof  of  ad- 
verse possession.  —  Lawrence  R.  R.  Co.  v. 
Cobb.  35  Oh.  St.  94  (  1878).  See  Shepherd  v. 
Baltimore,  etc.  R.  R.  Co.,  130  U.  S.  420,  434 
(1888)  ;  s.  c,  0  0.  F.  D.  322. 

Unrecorded    consent    of    original    owner 
—  notice  to  purchasers. 

Where  a  railroad  company  has,  with  the 
consent  of  tlie  owner  of  abutting  land,  laid  in 
front  of  the  premises  a  single  track  of  its  road 
and  is  operating  cars  thereon,  such  condition 
is  notice  to  a  purchaser  of  such  property  of  a 
righl  to  maintain  such  track,  and  his  ease- 
ment in  the  street,  as  owner  of  abutting  land, 
is,  to  the  extent  of  such  possession  and  user, 
affected  thereby.  But  such  right  will  not  be 
affected  by  an  unrecorded  deed  from  his 
grantor,  executed  more  than  six  months  prior, 
giving  to  the  company  permission  to  lay  addi- 
tional tracks,  if  at  the  time  of  his  purchase 
the  purchaser  acts  in  good  faith,  and  has  no 
knowledge  of  the  existence  of  such  convey- 
ance. —  Varwig  v.  Cleveland,  etc.,  R.  R.  Co., 
54  Oh.  St.  455  (1890)  ;  s.  c.,'  6  O.  C.  C.  439; 
s.  c.  3  C.  D.  528. 

What  amounts  to  an  obstruction  to  ac- 
cess. 

It  is  not  sufficient  to  bar  recovery  that  the 
abutting  lot  owner  has  left  direct  access  to  the 
-tint  immediately  in  front  of  his  property^ ; 
il  the  public  travel  has  been  excluded  there- 
from by  the  act  of  the  defendant  in  construct- 
ing or  suffering  an  obstruction  to  be  con- 
structed thereon.  He  is  entitled  to  direct 
unimpaired  access  from  his  lot  to  the  portion 
of  the  street  in  front  in  use  by  the  general 
public.  If,  in  order  to  reach  that  portion  of 
the  street  in  use  by  the  general  public,  he  is 
compelled  to  go  to  a  point  beyond  the  lines  of 
his  lot,  either  to  cross  over  or  under  such  ob- 
struetion,  he  suffers  thereby  an  inconvenience 
ami  injury  not  common  to  the  public,  for 
which  he  is  entitled  to  compensation. — 
English  v.  Trustees  of  R.  R.,  S  W.  L.  B.   15 

L882). 

Extent   of  recovery. 

Under  this  section  abutting  owners  are  en- 
titled  to  recover  full  compensation  for  the 
depreciation  in  the  value  of  their  property. 
In  estimating  the  damages  the  same  standard 
is  to  be  applied  as  in  dired  proceedings  h\ 
ili<-  railroad  company  to  condemn  for  its  use 
the  private  right  of  such  owner  in  the  street. 
—  Grafton  v.  Baltimore,  etc.  R.  R.  Co.,  12 
VV.  L.  B.  214  (1884)  ;  s.  c,  21  Fed.  309;  s.  c, 
5  O.  F.  D.  318. 

Damages    for    temporary    injury    by    ob- 
struction of  street. 

Damages  caused  by  the  temporary  obstruc- 
tion of  a  street   during  the  construction  of  the 


railroad  are  not  recoverable  under  this  section 
unless  such  obstructions  are  unnecessarily  and 
unreasonably  interposed  and  prolonged. — 
Shepherd  v.  Baltimore,  etc:,  R.  R.  Co.,  130  U. 
S.  420,  433   (1888)  ;  s.  c,  0  0.  F.  D.  322. 

Damages        arising        from        additional 
tracks. 

Where  a  railroad  company,  whose  main 
track  has  been  established  for  thirty  years, 
lays  a  new  track  from  such  main  track 
through  a  side  street,  the  owner  of  property 
near  to  such  track  is  entitled  to  all  damages 
caused  by  reason  of  the  construction  and 
operation  of  the  new  track  in  the  street  only, 
while  the  engine  is  on  the  same  making  noise, 
smoke  and  sparks,  and  obstructing  the  street. 
But  when  the  cars  and  engine  get  off  this 
track  in  the  street,  and  are  on  the  main  or 
other  tracks,  the  property  owner  is  not  enti- 
tled to  damages  arising  from  such  operation  of 
the  railroad,  unless  the  engine  and  cars  are  at 
the  instant  attached  to  cars  or  engine  which 
are  at  that  time  on  the  track  in  the  street.  — 
See  Railroad  Co.  v.  Hambleton,  40  Oh.  St.  490 
(1884)  ;  Cleveland,  etc.,  Rv.  Co.  v.  Reeder,  6 
O.  C.  C.  354  (1892)  ;  s.  c,  3  C.  D.  489. 

Recovery    limited    to    damages    pleaded. 

Where  the  plaintiff  in  an  action  under  this 
section  specifically  alleges  that  the  injuries  of 
which  he  complains  were  caused  by  noises, 
smoke,  dust  and  sparks  of  fire,  but  does  not 
set  up  any  easement,  fee  or  other  interest  in 
the  street,  or  aver  any  injury  thereto,  he 
should  not  be  permitted  on  the  trial  of  the 
action,  over  the  objection  of  the  railroad  com- 
pany, to  establish  as  the  measure  of  his  re- 
covery the  difference  between  the  value  of  the 
property  before  and  after  the  track  was  laid, 
and  the  court  should  instruct  the  jury  that 
the  recovery  should  be  limited  to  the  claims 
made  in  the  petition.  —  Baltimore,  etc.,  R.  R. 
Co.  v.  Lersch,  58  Oh.  St.  039  (1898). 

Damages  caused  by  running  trains. 

An  adjacent  landowner  cannot  maintain  an 
action  at  law  for  consequential  damages  from 
the  operation  of  its  cars  unless  he  can  show  a 
negligent  exercise  b\T  the  railway  company  of 
its  legal  rights.  Any  annoyance  incident  to 
the  running  of  the  cars  on  the  road  with 
reasonable  care  is  damnum  absque  injuria. — 
Fliehman  v.  Cleveland,  etc.,  Ry.  Co.,  27  W.  L. 
B.  302    (1892). 

Obstruction     of     street  —  inconvenience 
common  to  public. 

The  owner  of  property  near  to  a  railroad 
occupying  a  street  cannot  recover  damages  on 
account  of  any  obstruction  to  the  street 
can seil  by  the  tracks  or  the  operation  of  the 
railroad  which  does  not  cause  him  injury 
different  in  character  from  that  suffered  by 
the  general  public  although  his  injury  may  be 
greater  in  degree,  the  common-law  rule  as  to 
such  injuries  not  being  abrogated  by  this 
section.  —  Wheeling,  etc.,  R.  R.  Co.  v.  Mc- 
Laughlin, 1.1  <>.  C.  C.  1  (1897)  ;  s.  c,  7  C.  D. 
047:  Fliehman  v.  Cleveland,  etc..  Rv.  Co.,  27 
W.  L.  B.  302   i  1892). 


Railroad  Corporations. 


193 


Right  to  Cross  Roads,  §   3284. 


Damages     personal     in     nature     do     not 
follow   the  land. 

Damages,  excepting  for  the  wrongful  taking 
of  hind,  are  personal  in  character,  and  do  not 
pass  to  a  grantee  on  a  conveyance.  —  Railroad 
Co.  v.  Campbell,  .31  Oh.  St.  328  I  1894  I. 

Damages  from  smoke,   noises,   fire,   etc. 

In  an  action  by  an  owner  of  property  abul 
ting  on  or  near  to  the  streel    occupied,   it    is 

competenl  to  take  into  considerati vidence 

of  substantial  injury  and  loss  to  the  propertj 
(not  common  t<>  the  community  at  large) 
caused  by  smoke,  noises  and  sparks  of  fire, 
occasioned  by  running  of  locomotives  and  cars 
along  the  track  in  front  of  the  property. 
Railway  Co.  v.  Gardner,  45  Oh.  St.  309 
(1887)  ;  Wheeling,  etc.,  R.  R.  Co.  v.  McLaugh- 
lin, 15  O.  C.  C.  1  (1897)  ;  s.  c,  7  C.  D.  647. 
See  Parrot  v.  Cincinnati,  etc..  It.  R.  Co.,  10 
Oh.  St.  624  (1858)  ;  Hatch  v.  Cincinnati,  etc., 
R.  R.  Co.,  18  Oli.  St.  02   (1868)  . 

Evidence  as  to  damages. 

The  true  rule  of  damages  in  these  cases  is 
the   difference    in   the    value   of   the    property 


affected  before  and  i  he  value  aftei  I  he  lot 

ot    1  be    railroad,    and    I  hi-    is    U)    I"-   detei  mined 

by   the  jurj    in   the  lighl   of   the   i. 
lished  by  the  evidence,  and  nol  upon  the  mere 
opinions  ol    witnesses,  except    so   fai    ai  opin 
ions  m.M   be  received  upon  questions  ol  value, 
ii    i-  ei  roi    to  permil   w  itnessee  to  tesl  if; 
much   less   pei    yeai    was   received  ■>-   renl    for 
the   property    affected    aince,   than    before   the 
track  was  laid  in  fronl  of  0  ;  to  ^-im-  opinions 
concerning  the  amounl   of  damages  sust 
and  also  opinions  as  to  the  difference  in  value 
oi   the  property  with  the  track   in  the 
and  if  it   was  Borne  [dace  else.       Railway    <  o. 
\.  Gardner,  15  Oh.  St.  309     I  -- 

Damages  —  interest. 

In   awarding   damages    in   an   action    under 
this  section,  an  allowance  may  be  mad.-  in  the 
nature    of    interest    on    account    ol    del 
Lawrence    R.    R.   I  o.   v.   Cobb,   35   Oh.    SI 
(  1878). 

Powers   of   council   as  to   crossings. 
See  Mun.  Code,  §g  7.  10. 


§  3284.  RIGHT  TO  CROSS  COUNTRY  ROADS.  —  A  company  may,  whenever  it 
is  necessary  in  the  construction  of  its  road  to  cross  a  road  or  a  stream  of  water,  divei* 
the  same  from  its  location  or  bed;  but  the  company  shall,  without  unnecessary  delay, 
place  such  road  or  stream  in  such  condition  as  not  to  impair  its  former  usefulness, 
and  any  or  all  railroads  hereafter  constructed,  which  shall  cross  any  avenue  or  public 
highway  leading  from  a  city  of  the  first  or  second  class  to  a  public  cemetery  of  such 
city,  situate  within  or  without  the  limits  of  any  such  city,  shall  be  constructed  so  as 
either  to  pass  under  or  over  such  avenue  or  public  highway,  at  such  elevation  or 
depression  as  the  caee  may  be,  as  will  allow  the  unobstructed  passage  of  all  wagons, 
carriages,  or  other  vehicles  which  it  may  be  necessary  for  any  person  to  use  upon 
such  avenue  or  public  highway.     (May  1,  1852,  50  v.  274,  §  16.) 


Common-law  rule. 

This  section  is  substantially  the  common- 
law  rule  on  the  subject.  —  Railroad  Co.  v. 
Defiance,  52  Oh.   St.   262,  314    (1895). 

"When   duty  arises. 

The  duty  comes  to  a  railroad  company  when 
it  constructs  its  road  across  a  highway,  nol 
when  it  appropriates  its  righl  of  way.— 
Toledo  v.  Lake  Shore,  etc..  Ry.  Co.,  17  0.  C. 
C.  265,  281   (1893)  ;   s.  c.  9  C.  D.   135. 

Extent  of  power  to  divert. 

Subject  to  the  performance  of  the  duty  to 
restore,  the  power  or  right  to  divert  a  road 
or  stream  is  co-extensive  with  the  public  ne- 
cessity which  calls  for  its  exercise,  and  the 
diversion  may  be  temporary  or  permanent,  as 
the  public  needs  or  necessities  require. — 
Valley  Ry.  Co.  v.  Bohin,  34  Oh.  St.  114,  119 
(1877). 

Nature  of  duty  of  company. 

The  obligation  of  the  company  to  place  the 
highway  in  such  condition  as  nol  to  impair 
its  former  usefulness  to  the  public,  is  a  con- 
dition inseparable  from  the  right  or  franchise 
granted  to  the  company  to  cross  the  highway 
with  its  railroad,  or  to  divert  it   from  its  lo- 


cation for  the  accommodation  of  the  railroad. 

-ZanesA  ille  v.  Fannan,  53  I  >h.  St.  615   I  I  - 
state  ex  rel.  v.  Dayton,  etc.,  R.  R.  I 
St.  13)   (1881). 

Duty  to  make  safe  crossings. 
§  3324  and  notes;   S  3337-2  and  no 

Duty  to  keep  in  repair. 

There  is  no  duty  imposed  by  this  section 
upon  the  company  to  keep  the  highway  in  re- 
pair, after  it  has  been  placed  in  such  condition 
as  not  to  impair  it-  usefulness.  —Pittsburg, 
etc.,  Ry.  Co.  v.  Maurer,  21  Oh.  St.  421     1871   . 

Duty  to   guard  pending  construction. 

Until  such  time  as  the  highway  is  fully  re- 
stored to  it-  former  condition  of  Bafety  and 
usefulness,  the  railroad  company  must,  by  the 
erection  of  piopn  1  airier-,  prevent  and  guard 
travelers  from  using  the  highway  if  i'  is  in  a 
dangerous  condition.—  Potter  v.  Bunnell,  20 
Oh.  St.  150    (1870). 

Duty  to  restore  is  personal  —  cannot   be 

shifted  to  contractor. 

The  duty  imposed  by  this  section  i-  per- 
sonal, and  a  railroad  company  cannot,  by  em- 
ploying contractor-  to  do  the  work,  shield  it- 


LAW.    GOV.    PRIV.    CORP. 


13- 


194 


Private  Corporations  in  Ohio. 


Right  to  Cross  Roads,   §   3284. 


self  from  responsibility  for  injuries  done  to 
persons  rightfully  using  the  road.  —  Cincin- 
nati, etc.,  ft.  R.  Co.  v.  Van  Dorn,  1  0.  C.  C. 
292   (1885)  ;   s.  c,  1  C.  D.  160. 

Duty  to   restore  to  former  condition. 

The  requirements  of  this  section  is  not  to 
rot  ere  to  its  former  place  or  condition,  but 
to  such  condition  as  not  to  affect  materially 
its  utility.  It  is  to  be  left  in  such  condition 
how  much  so  ever  it  may  be  diverted  from  its 
former  course,  that  the  right  to  the  public 
or  private  enjoyment,  where  such  right  exists, 
shall  not  be  materially  disturbed  or  interfered 
with.  The  right  to  divert  is  not  limited  to  a 
temporary  use.  —  Valley  Ry.  Co.  v.  Bohm.  34 
Oh  St.  114  (1877);  Little  Miami  R.  R.  Co.  v. 
Commissioners,  31  Oh.  St.  338  (1877).  See 
Toledo  v.  Lake  Shore,  etc.,  Ry.  Co.,  17  0.  C. 
C.  265   (1893);  s.  c,  9  C.  D.  135. 

Liability  for  failure  to  restore. 

Under  this  section  a  railroad  company  is 
liable  for  damages  arising  out  of  its  failure 
to  restore  roads"  to  their  former  condition  of 
usefulness.  —  Pittsburg,  etc.,  Ry.  Co.  v. 
Maurer,  21  Oh.  St.  421  (1871)  ;  Cincinnati,  etc., 
R.  R.  Co.  v.  Van  Dorn.  1  O.  C.  C.  202  (1885)  ; 
s.  c,  1  C.  D.  160;  Potter  v.  Bunnell,  20  Oh.  St. 
150   (1870). 

Remedy  of  §  863  is  cumulative. 

The  remedy  given  to  county  commissioners 
by  §  863  for  the  obstruction  of  a  state  or 
county  road,  is  cumulative,  and  does  not  af- 
fect the  right  of  the  state  to  maintain  pro- 
ceedings to  compel  the  restoration  of  the 
road.  —  State  ex  rel.  v.  Dayton,  etc.,  R.  R. 
Co.,  36  Oh.  St.  434   (1881). 

Damages    cannot    be    recovered    in    pro- 
ceedings to  condemn. 

In  proceedings  by  a  railroad  company  to 
appropriate  land  adjoining  a  highway,  where 
it  appears  that  the  company  in  taking  the 
land  described  in  the  petition,  would  neces- 
sarily have  to  make  an  alteration  in  the 
course  or  grade  or  occupation  of  the  highway, 
such  facts  cannot  be  taken  into  consideration 
by  tlit-  jury  in  estimating  the  damages  for  the 
'  hind  sought  to  be  appropriated.  If  any  such 
alteration  in  the  highway  should  be  made  so 
as  to  destroy  or  lessen  the  value  of  the  de- 
fendant's  property,  he  can  recover  damages 
t  licri  for  in  a  proper  proceeding  brought  for  that 
purpose,  and  the  appropriation  proceedings 
instituted  by  the  railroad  company  would  not 
be  a  bar  to  such  suit.  —  Schaible  v.  Lake 
Shore,  etc.,  Ry.  Co.,  10  O.  C.  C.  334  (1895); 
s.  c,  6  C.  D.  505. 

Damages    to    property    abutting    on    the 
highway. 

Where  the  1  racks  are  laid  in  a  cut  across 
the  highway,  the  company  is  obliged  to  build 
a  bridge  across  its  tracks  with  suitable  ap- 
proaches, and  if  in  so  doing  it  makes  embank- 
ments to  such  heights  as  to  injure  the  access 
to  abutting  property,  it  will  be  liable  for  the 
injuries    done,    although    the    construction    as 


made  was  authorized  by  the  authorities  in 
charge  of  the  road.  —  McNulta  v.  Ralston,  5 
O.  C.  C.  330   (1891);  s.  c,  3  C.  D.  163. 

Joint  liability  of  city  and  company. 

Wh»  n  a  railroad  company  assumes  the  re- 
pair and  maintenance  of  a  street  bridge  over 
its  railway,  it  becomes  liable  for  injuries  oc- 
casioned by  the  falling  of  the  bridge,  and  it  is 
jointly  liable  with  the  city  having  control  of 
the  bridge,  and  a  street-car  company  using 
it.  —  Toledo,  etc.,  R.  R.  Co.  v.  Sweeney,  8  O- 
C.  C.  298  (1894)  ;  s.  c,  4  C.  D.  11;  s.  c,  52  Oh. 
St.  016. 

Remedy  by  injunction. 

In  enjoining  a  railway  company  from  using 
a  highway,  where  it  has  been  diverted  from 
its  location,  but  left  in  such  close  proximity 
to  the  railway  as  to  make  it  dangerous  for 
public  travel,  it  is  proper  for  the  court  to 
prescribe  what  change  in  the  location  shall 
operate  to  supersede  the  injunction,  and  on 
allowing  an  injunction  against  the  company 
from  any  further  work  on  or  obstruction  of 
the  highway,  the  court  may,  on  final  hearing, 
require  the  removal  of  the  obstructions  al- 
ready placed  thereon,  in  case  the  company  re- 
fuses to  restore  such  highway  to  its  former 
usefulness.  —  State  ex  rel.  v.  Dayton,  etc., 
R.  R.  Co.,  36  Oh.  St.  434   (1881). 

Enforcement   of   duty  by  state   through, 
attorney-general. 

While  a  company  continues  in  the  exercise 
of  its  franchise,  the  state  has  the  right  to 
compel  it  to  perform  the  condition  upon  which 
the  franchise  was  granted,  by  petition  invok- 
ing the  equity  powers  of  the  court,  prosecuted 
by  the  attorney -general  in  the  name  of  the 
state.  —  State  e\  rel.  v.  Dayton,  etc.,  R.  R. 
Co.,  36  Oh.  St.  434   (1881). 

Crossings  in  cities. 

This  section  applies  only  to  country  roads, 
and  not  to  city  or  town  streets,  and  a  rail- 
road company  may  not  therefore  cross  a  city 
street  except  under  the  provisions  of  §  3283. 
—  Youngstown  v.  Pittsburg,  etc.,  R.  R.  Co., 
3  <).  C.  C.  214  (1888);  s.  c,  2  C.  D.  121;  Cin- 
cinnati, etc.,  R.  R.  Co.  v.  Cincinnati,  8  W.  L. 
B.  334    (1882). 

Effect  of  section   on  liability  of  city. 

This  section  in  no  way  affects  the  duty  of 
a  city  to  keep  its  streets  free  from  nuisance, 
nor  is  its  liability  in  any  way  changed.— 
Zanesville  v.  Fannan,  53  Oh.  St.  605  (1895). 

Control    of    streets    cannot    be    surren- 
dered. 

An  ordinance  which  authorizes  a  railroad 
company  to  erect  new  bridges  over  its  track 
where  it  crosses  a  highway,  the  bridges  to  be 
kept  in  repair  by  the  railroad,  does  not  divest 
the  municipal  authorities  of  their  control  over 
the  streets,  nor  impair  their  power  to  im- 
prove the  same,  nor  entitle  the  railroad  com- 
pany to  perpetually  maintain  the  bridges  as 
constructed,  but  the  ordinance  and   privilege 


Railroad  (  Corpora  noN  3. 


195 


Right  to  Cross  Roads,  $   3284. 


granted  by  it  are  subjecl  to  a  proper  exercise 
by  the  municipal  body,  of  its  power  to  im 
prove  the  streets  and  make  Buch  chanj 
the  grades  as  may  be  necessary  to  subserve 
the  public  interest.  Railroad  Co.  v.  Defiance 
52  Oh.  St.  262  ds!).-,i  ;  Elyria  v.  Railroad  I  o  . 
13  O.  C.  C.  4S4    (1902). 

By   restoration    of   street   no    additional 
rights  are  acquired. 

Where  a  company  crosses  a  street  by  a 
bridge  and  builds  the  piers  so  as   to  narrow 

the  street,  it  acquires  no  righl  to  maintain 
sucli  structures  against  the  objection  of  the 
city. —  Elyria  v.  Lake  Shore,  etc.,  Ry,  Co.,  13 
0.  C.  C.  482  (1902). 

Power   to    appropriate    lands    to    restore 
highway  or  stream. 

The  right  to  divert  a  stream  or  mad  undei 
the  obligation  of  restoring  it  to  its  former 
state  of  usefulness,  carries  the  right  to  appro- 
priate necessary  lands  to  make  such  diversion 
and  build  the  road;  compensation  being  made 
for  riparian  rights  and  other  interests  af 
fected  —  Valley "  Ry.  Co.  v.  Bohm.  34  Oh.  St. 
114    (1877). 

Statute  of  limitations. 

An  obstruction  to  a  public  highway  is  a 
nuisance  against  which  the  statute  of  limita- 
tions does  not  run. —  Little  Miami  R.  R.  Co. 
v.  Commissioners,  31  Oh.  St.  338   (1877). 

Obstructions  to  road  made  by  the  com- 
pany. 

If,  after  a  highway  has  been  fully  restored. 
the  railroad  company  wrongfully  encroaches 
upon  the  highway,  or  impairs  its  usefulness, 
it  will  be  held  liable  for  damages  resulting 
from  such  wrongful  encroachment  or  impair- 
ment.—  Pittsburg,  etc.,  Ry.  Co.  v.  Maurer, 
21  Oh.  St.  421   (1871). 

Rights  of  railroad  at  highway  crossing. 

The  right  of  a  railroad  company  to  enjoy 
the  use  of  its  road  at  the  crossing  of  a  common 
highway,  and  the  right  of  the  public  to  use 
the  highway  are  co-ordinate  and  equal. 
Reasonable  care  and  prudence  must  be  exer- 
cised by  each,  in  the  use  of  the  crossing  so  as 
not  to  interfere  unnecessarily  with  the  other. 
—  Pittsburg,  etc.,  Ry.  Co.  v.  Maurer,  21.  Oh. 
St.  421   (1871). 

Diverting     stream     on     its     own     land  — 
statute  of  limitations. 

A  railway  company,  like  an  individual,  may, 
on  its  own  land,  and  for  its  own  benefit,  law- 
fully cut  a  new  channel  for  a  stream  of  water, 
and  turn  such  stream  into  such  new  channel, 
if  thereby  no  damage  is  caused  to  another; 
but  when  it  so  controls  and  directs  the  course 
of  the  stream  that,  as  the  stream  leaves  the 
company's  premises  and  control,  the  wain-  - 
thus  thrown  across  the  old  channel  and 
against  and  upon  the  land  of  another,  and 
thereby  causes  damage  to  such  other,  the 
company  is  liable  for  such  damage;   and  while 


the  company,  after  thu  dam- 

"m|  promising  to  repaii   the  damage  done 
and  stop  future  damage,  continues 
''••|    and   direct    the   stream,   and   the 
continues    to    cause    additional    d 
company    becomes    bald,-    for    the    additional 
damage,  and  will  continue  so  I  liable 

until   the  company  acquires  a    righl    to 
such  damage,  and  until  such  righl  .  | 

by  the   company,   the   four   y< 
limitations  w  ill  no!  bar  a  propi  i   r< 
damages.      Vail,       i:   ,   .  ...         |  ,    u/     1;;  0h 
St.   623    (  l- 

Diversion  of  streams. 

See  generally    Railroad   I  o,   \     Can 
st.   lis   (1882);  crawbod  v.  Rambo,  WOh.St! 
279  (1886)  :  C.  &  II.  C.  &  I.  Co.  ^.  Tucl 
Oh.  St.    ,i    (  L891). 

Power   to    close    hridge    for   repairs. 

Where  it   is  the  duty  of  a  railroad  company 
to    erect    and    maintain    a    bridge    in    a 
under    which    it-    road    i-    passing,   and 
bridge  becomes  dangerous  and   oul   of  repair, 
the  company  has  the  same  righl   as  the  city 
to   close    the    bridge,   although    it    constitutes 
part   of  the   public  street.      Toledo,  i  ••      R 
Co.  v.  Mammd.   13  o.  C.  C.  591    I  189 
G  C.  D.  244. 

Duty  to   maintain  hridge. 

Although   there  may   be   some  doubl 
the  original    liability  of  a   company   to  build 
a  bridge  across  it-  read,  if  it  in  fad  build-  a 
bridge  and  maintain-  it   for  forty  pears,  il 
!"'   held   liable  to   maintain.—  Toledo  v. 
Shore,  etc.,   Ry.  Co.,   17  0.  C.  C.  265      I  : 
-    c,  9  C.  1).  135. 

Bridges  over  right  of  way  —  removal  hy 

municipal    authorities. 

Where  a  railroad  i-  constructed  in  a  cut 
across  a  highway,  and  the  highway  i-  restored 
by  bridging  acid--,  such  bridge  constitul 
part  of  the  highway  and  may  be  removed, 
when  the  council  deem  it  necessary  for  the 
public  convenience  to  make  the  crossing  at 
grade.-  Railroad  Co.  v.  Defiance.  52  Oh.  St. 
262   |  L895). 

Low    bridge    over    highway  —  remedy. 

Where  an  injunction  i-  asked  to  restrain  a 
railroad    from    building  a   bridge  over  a    turn- 
pike which  would  leave  only  a  -pace  bel 
the  surface  of   the   road   and    the    bridgi 
sufficient   for  the  purposes  of  the  public  using 
such    road,   and    it    appears    that    much    work 
has  been  done  in  building  such  bridge  before 
objection    was    made,    and    that    the    cos(    of 
raising  such  bridge  would  involve  a  heavy  ex- 
pense, and   thai    the  difficulty  could   1"-   i 
died    at    much    le-s    expense    and    troubli 
lowering  the  surface  of  the  road  al  the  point 
in    question,    the    court    will    order    that    the 
latter  be  done  al   I  he  expense  of  the  rai 
company.-    Wooster    Turnpike    Co.    v. 
road  Co..  15  0.  I 
269. 


196 


Private  Corporations  in  Ohio. 


Toll  Bridge  Business  —  Bonds,   §§   3285,  3286. 


cities  of  the  first  or  second  class. —  Youngs- 
town  v.  Pittsburg,  etc..  R.  R.  Co.,  3  0.  C.  C. 
214   (1SS8);   s.  c,  2  C.  D.  121. 


■What   cemeteries   not  protected. 

The  cemetery  of  a  private  association  does 
not  come  within  the  terms  of  this  section.  It 
covers  and  protects  only  cemeteries  owned  by 

§  3285.  MAY  DO  TOLL  BRIDGE  BUSINESS.—  It  may  so  construct  its  bridges 
as  to  answer  the  ordinary  purposes  of  travel  and  business,  as  well  as  for  railroad  pur- 
poses, and  may  demand  and  receive  such  rates  of  toll  for  the  passage  of  individuals, 
vehicles  of  all  kinds,  or  animals,  as  it  may  fix,  subject  to  the  approval  of  the  com- 
missioners of  the  county  or  counties  in  which  such  bridge  is  erected;  but  the  rates  of 
toll  must  be  uniform,  shall  be  printed  or  painted,  and  kept  conspicuously  posted  in 
or  near  the  tollhouse  of  the  bridge,  and  may  be  revised  and  changed  in  the  first  week 
in  each  year;  and  the  company  may  compound  and  bargain  with  any  person  or  party 
for  the  use  of  such  bridge,  by  the  month,  quarter,  or  year;  but  no  company,  shall 
receive  toll  upon  any  such  bridge  if  erected  within  one  mile  of  any  toll-bridge  pre- 
viously constructed  over  the  same  stream.      (March  11,  1853,  51  v.  415,  §  1.) 

§  3286.  POWER  TO  ISSUE  BONDS.—  A  company  may  issue  bonds,  convertible 
or  otherwise,  bearing  a  rate  of  interest  not  exceeding  seven  per  centum  per  annum, 
to  an  amount  not  exceeding  two-thirds  of  its  capital  stock,  actually  subscribed,  for 
one  or  more  of  the  following  purposes:  Completing  or  extending  its  road,  construct- 
ing branch  roads,  laying  double  or  additional  track,  increasing  its  machinery  or 
rolling-stock,  building  depots  or  shops,  making  improvements,  paying  its  unfunded 
debts,  or  redeeming  its  bonds;  and  it  may  secure  the  bonds  issued  for  such  purposes 
by  mortgage  on  its  property,  or  otherwise,  if  authorized  by  the  vote,  in  person  or  by 
proxy,  of  holders  of  a  majoi'ity  of  the  stock  upon  which  all  the  installments  called  for 
by  the  board  of  directors  have  been  paid;  but  such  vote  shall  be  taken  at  a  meeting 
of  stockholders,  of  which  thirty  days'  notice  shall  be  given.  (March  14,  1876,  73  v. 
25,  §  5.) 


Vote  of  stockholders. 

This  section  does  not  in  terms  require  a  vote 
of  the  stockholders  to  give  the  directors  au- 
thority to  issue  bonds.  Such  authority  is  only 
required  for  the  execution  of  a  mortgage  over 
the  corporate  property.  -  Shoemaker  v.  Dav- 
ton,  etc.,  R.  R.  Co..  19  W.  L.  B.  322   (1888). 

Future   acquisitions   of  property. 

Where  railroad  mortgage-  contain  apt  lan- 
guage to  that  effect,  they  attach  to  and  cover 
future  acquisitions  of  property  for  the  use  of 
the  road.— Coopers  v.  Wolf,*  15  Oh.  St.  523 
(1864).  See  Feike  v.  Cincinnati,  etc.,  Ry.  Co., 
14  (>.  C.  C.  L86  (1897);  s.  c.  7  C.  D.  652; 
Coe  v.  Columbus,  etc.,  R.  R.  Co.,  10  Oh.  St. 
372  (1859);  Coe  v.  Peacock.  14  Oh.  St.  1ST 
(1863);  Ludlow  v.  Hurd.  1  Dis.  552  (1857); 
Hatry  v.  Painesville,  etc.,  Ry.  Co..  1  0.  C.  C. 
126  (1886);  S.  c.  1  C.  J)1  238:  Louisville 
Trust  Co.  v.  Cincinnati,  etc.,  Ry.  Co.,  01  Fed. 
699  (1897);  s.  c.  10  O.  !•'.  1).  646;  Compton 
v.  Jesup,  68  Fed.  203  (1895);  s.  c,  8  O.  F.  D. 
452. 

What  is   after-acquired  property. 

A  railway  company  gave  a  mortgage  to  se- 
cure it-  coupon  bonds,  conveying  all  the  prop- 
erty which  it  then  possessed  or  should 
thereafter  acquire,  and  subsequently  executed 
a  lease,  to  which  the  mortgagee  was  no1  a 
party,  whereby  the  lessee  agreed  to  pay  the 
coupons    at   maturity,    in    the    event    the    ae1 


earnings  of  the  demised  road  should  not  be 
sufficient  to  protect  the  interest  on  the  bonds. 
In  a  suit  to  foreclose  the  mortgage,  held,  that 
the  lease  was  not  after-acquired  property 
within  the  meaning  of  the  mortgage. —  Moran 
v.  Pittsburg,  etc.,  Ry.  Co.,  32  Fed.  878  (1S87) ; 
s.  c,  5  0.  F.  D.  712. 

Franchise    to    be    a    corporation    cannot 
be  mortgaged. 

A  railroad  company  has  no  power  to  mort- 
gage or  sell  its  corporate  franchise  to  be  a 
corporation,  and  a  judicial  sale  upon  mort- 
gages executed  by  it  would  not  invest  the  pur- 
chaser with  any  corporate  capacity  whatever. 
—  Atkinson  v.  Marietta,  etc.,  R.  R.  Co.,  15 
Oh.  St.  21  (1804);  Coe  v.  Columbus,  etc.,  R. 
R.  Co.,  10  Oh.  St.  372    (1859). 

What  property  mortgage  does  not  cover. 

A  mortgage  executed  by  a  railroad  company 
on  "  the  road  "  of  the  company,  "  whether 
made  or  to  be  made,  acquired  or  to  be  ac- 
quired." and  all  property,  real  or  personal, 
"  of  the  company,  whether  now  owned  or  here- 
after to  be  acquired,  used  or  appropriated  for 
the  operating  or  maintaining  the  said  road."' 
is  not  a  lien  upon  the  real  estate  of  the  com- 
pany then  owned  or  afterward  acquired  which 
has  not  been  used  or  appropriated  for  operat- 
ing or  maintaining  the  road. —  Walsh  v.  Bar- 
ton, 24  Oh.  St.  28  (1873);  Hatry  v.  Paines- 
ville, etc.,  Ry.  Co.,  1  0.  C.  C.  426  (1886)  ;  s.  c. 
1  C.  D.  238. 


Railroad  <  !orp<  >r  mo  rs 


197 


Bonds,  etc.,   5  3286. 


Scrap  —  cast-off  articles. 

-i  The  cast-off  article-,  fragments,  and  old 
I  materials,  once  forming  pari  of  the  road,  or 
J  used  in  its  operation,  -till  continue  undei  the 
[mortgage,  if  a  proper  and  judicious  manage 
fmenl  of  the  road  requires  thai  they  should  l>e 
recasl  or  exchanged  for  new  articles,  for  the 
■  uses  of  t ho  road. —  Coopers  v.  Wolf,  L5  Oh,  St. 
523   i  L864). 

Extra-territorial  force   of  mortgage  on 
rolling   stock. 

A  mortgage  covers  rolling  stock,  though 
temporarily  out  of  the  state,  and  a  receiver 
may,  under  comity  between  states  by  an  action 
brought  in  the  foreign  state  in  his  own  name 
assert  his  right  to  the  possession  thereof 
where  such  right  is  not  in  conflict  with  the 
rights  of  citizens  of  such  foreign  state  nor 
against  the  policy  of  its  laws. —  Bank  v.  Mc- 
Leod,  38  Oh.  St.  174  (1882)  ;  Winslow  v.  Troy 
Iron,  etc.,  Co.,   1  Dis.  229   (1856). 

Fraud   in   issue  —  action  by   trustee. 

A  trustee,  holding  bonds  for  the  benefit  of 
others,  cannot  maintain  an  action  of  deceit  to 
recover  damages  suffered  by  his  cestuis  que 
trustent  by  reason  of  a  deception  practiced 
upon  them  in  connection  with  their  purchase 
of  the  bonds,  nor  can  he  maintain  an  equitable 
action  on  the  ground  of  fraud  in  such  case. — 
Raymond  v.  Spring  Grove,  etc.,  Ry.  Co.,  21  W. 
L. 'B.   103    (1889). 

Lease    subsequent   to    mortgage  —  rights 
of  mortgagee. 

Where  a  lease  is  executed  by  a  mortgagor 
subsequent  to  the  mortgage,  and  there  i-  no 
privity  of  estate  or  contract  thereby  created 
between  the  mortgagee  and  lessee,  and  there 
is  no  attornment  by  lessee  to  mortgagee,  the 
mortgagee  cannot,  either  before  or  after  the 
mortgagor's  default,  demand  the  benefits  of 
the  lease  without  the  consent  of  the  lessee. — 
Moran  v.  Pittsburg,  etc.,  Ry.  Co.,  32  Fed.  878 
(1887);  s.  c,  5  O.  F.  D.  712. 

Notice  to  mortgagees  of  rights   of  ven- 
dors. 

Where  a  party  contracts  to  sell  land  to  a 
railway  company,  but  retains  the  legal  title 
pending  payment,  it  is  sufficient  to  put  subse- 
quent mortgagees  of  the  road  upon  inquiry  as 
to  his  rights. —  Dayton,  etc.,  R.  R.  Co.  v. 
Lewton,  20  Oh.  St.  401   (1870). 

Action  to  compel  the  issuance  of  bonds 
—  mandamus. 

A  writ  of  mandamus  will  not  be  allowed  to 
compel  a  corporation  to  issue  its  bonds  to  one 
of  its  creditors  in  order  to  obtain  the  benefil 
of  a  mortgage  security,  where  the  right  of  the 
j  creditor  to  such  security  is  doubtful,  and  the 
•  property  sought  to  be  affected  has  passed  into 
the  hands  of  third  parties  as  purchasers.  The 
remedy  in  such  case  should  be  by  a  suil 
brought  in  equity  against  the  parties  whose 
Interest  it  is  sought  to  affect.— Ham  v.  To- 
ledo, etc.-   Ry.   Co.,   29  Oh.  St.   174    (1S76). 


Proceed!  of  bond   are   trust   fund. 

^  here  n lb 

directoi  -.  arising  from 

and  the  pui  poses  foi  whii  h  th< 
their  proceeds  are  to  be  used 
tion  are   set    forth  in   the   mo 
such  as  arc  authoi  ized  bj 
fund  to  be  used  in  good  faith  by  1 1 
tion  for  t  he  pui  i  ted  in  the  morl 

umbus,  el 
B.  27    I  1887)  :   I  entral    I  rusl   I  B  irke,   1 

N.  P.   169 

Same  subject  —  injunction  againei   mis- 
use. 
I  "pou  a   proper  showing  t  he  bond 

i mpany  are  entitled   to   an   injuncti 

restrain   a   misuse   of  tne   funds   arising   from 

the  sale  of  bonds.     <  'olumbus, 

Burke.   19  W.  L.  B.  27'  (18 

Clause      exempting     stockholders     from 

individual   liability. 

Where  a   mortgage  bo  secure  certain 
contain-  a    clause   limiting   the  effect    oi 
contract    contained   in   the  bond,   as  to  D 
not    pertinent    to  the   mortgage,   a    holder   of 
&ucn  bonds  will  not  le  presumed  to  bav< 
tice   of    such    clause   m  rely    by    reason 
general    reference   to    the   "terms   and 
i  ions  "  of  t  ne  mortgage  contained  in  the  b 
—  Raymond  v.  Spring  Grove,  etc..  Ry.  <  o.,  2  1 
W.    L.    B.    103    (1889). 

Same   subject  —  does  not   cover   liability 

on  subscriptions. 

Sec  Raymond  v.  Spring  Grove,  etc.,  Ry    I 
21   W.  L.  B.   103  (1889). 

Money     advanced     to     pay    interest     not 
entitled  to  equitable  lien. 

A    claim    against    a    railroad    compai 
money  advanced  to  pay  interest 
entitled  to  no  equitable  claim  upon  the 
erty  of  the  company  as  against 
Coe  v.  (olumbus,  etc.,  R.  R.  <  o..  10  Oh.  St.  372 
(1859). 

Interest    coupons  —  negotiability. 

An    interest    coupon,    not    having    a    pay.e 
designated  therein,  is  not  a  promissory   i 
nor  negotiable  in  law. —  Wright  v.  Ohio 
R.  R.  Co.,  1   Die.  465    I  L8 

Interest  —  semi-annual   payment. 

Where  bonds  are  issued  bearing 
seven  per  cent,   per  annum,  payable   semi-an- 
nually,  and   it    was  claimed  that    tl  • 
tion  had  no  power  to  contract  for  the  payn  >nt 
of    interest    either    semi-annual'y    or    at    any 
other  time  before  the  money  tell  d 
held    that    the    payment    of   the    interest    could 
he  regulated  according  to  the  usual  c  i  rse  of 
dealing   in   borrowing  money  and   : 
price    or   compensation    for    its 
Columbus,  etc..  R.  R.  Co.,  1"  Oh.  St.  372      - 

Is.",' 

Interest. 

See  Tl  llsborough,  etc..   R.  R.  Co.  v.   Cincin- 
nati. 2  A.  L.  R.  724  (1873). 


198 


Private  Corporations  in  Ohio. 


Bonds,  etc.,  §  3286. 


Estoppel  to   deny  validity  of  issue. 

Where  a  company  pays  interest  and  prin- 
cipal mi  bonds  for*  several  years,  it  may  be 
estopped  to  deny  the  validity  of  the  issue  of 
the  bonds. —  Shoemaker  v.  Dayton,  etc.,  R.  R. 
Co.,    19  W.  L.   B.  322    (1888). 

Interpretation   and   construction. 

A  mortgage  given  by  a  railroad  company. 
1,.  secure  the  payment  of  dividends  to  the 
holders  of  certificates  of  preferred  stock,  is 
an  incident  to  the  principal  obligation,  and 
the  terms  and  purport  of  the  certificates  will 
be  held  to  express  the  real  intent  of  the  par- 
ti.-, even  though  some  of  the  stipulations  of 
the  mortgage  may  be  apparently  inconsistent 
with  the  intent  as  expressed  by  the  certifi- 
cates.—Miller  v.  Ratterman,  47  Oh.  St.  141 
(1890). 

Same  subject. 

Wnere  the  words  or  terms  of  a  bond  are 
equivocal  or  not  entirely  clear,  the  court  may 
consider  the  deed  of  trust  in  connection  with 
the  bond  in  order  to  ascertain  the  real  con- 
tract between  the  corporation  and  the  bond- 
holder.— Shoemaker  v.  Dayton,  etc.,  R.  R. 
Co.,  IS  W.  L.  B.  43  (18S7). 

Convertible    bonds,    dividends. 

Where  convertible  bonds  are  issued,  and  the 
holders  thereof  have  regularly  been  paid  in- 
terest, they  are  entitled  to  convert  their  bonds 
into  stock,  but  only  to  receive  an  amount  of 
stock  equal  to  the  amount  of  the  principal 
sum  of  the  bonds,  but  no  extra  allowance  of 
stuck  or  money  for  dividends  on  the  stock, 
not  being  entitled  to  both  interest  and  divi- 
dends.— Sutliffe  v.  Cleveland,  etc.,  R.  R.  Co., 
24  Oh.  St.   147    (1873). 

Convertible  bonds,  action  for  refusal  to 
convert  —  pleading. 

A  petition  is  fatally  defective  in  not  aver- 
ring that  the  plaintiffs  were,  and  at  the  com- 
mencement cif  their  action  .continued  to  be, 
the  holders  of  the  bonds,  for  the  nonconver- 
sion  of  which  they  bring  suit. —  Denney  v. 
Cleveland,  etc.,  R.  R.  Co.,  28  Oh.  St.  108 
(1S75). 

Convertible  bonds  —  right  of  action  for 
refusal  to  convert  cannot  be  assigned. 

The  holder  of  a  convertible  bond  cannot 
assign  to  another  the  right  of  action  for  a 
breach  of  the  stipulation  for  conversion,  and 
yet  retain  the  bond  for  the  benefit  of  himself 
and  his  future  assignees. —  Dennev  v.  Cleve- 
land, etc.,  R.  R.  Co.,  28  Oh.  St.   108    (1875). 

Convertible     bonds,     stipulation     avail- 
able only  to  holder. 

A  stipulation  making  bonds  convertible  into 
-tor),  i-  inseparably  connected  with  the  bond 
on  which  il  is  indorsed,  and  is  only  available 
to  the  holder  of  the  bond,  and  so  long  only  as 
•intinues  to  be  such  holder. —  Denney  v. 
Cleveland,  etc.,  R.  R.  Co.,  28  Oh.  St.  108 
(187.1). 


Convertible  bonds  —  fraud. 

Where  a  company  has  power  to  issue  bonds 
for  the  purpose  of  raising  money,  it  may 
allow  the  holders  of  the  bonds  to  convert  them 
into  stock.  But  if  this  should  be  done,  not  in 
good  faith,  but  for  the  purpose  of  keeping  the 
control  of  the  company  in  the  hands  of  a 
board  of  directors,  a  court  of  equity  would 
interfere  on  the  ground  of  its  being  a  fraud. — 
Baldwin  v.  Hillsborough  R.  R.  Co..  10  W.  L. 
J.  356  (1853). 

Effect   of   state   judgment   prior  to    fed-    ? 
eral      foreclosure  —  -what      such     judg- 
ment lien  includes.  | 

A  judgment  recovered  in  a  state  court 
against  the  railroad  company  prior  to  the 
commencement  of  the  foreclosure  suit  by  a 
creditor  who  was  not  made  a  party,  remains 
unaffected  by  the  decree  and  sale,  such  judg- 
ment becomes  a  lien  on  the  real  property 
owned  by  the  company  at  the  time  of  its  re- 
covery, in  the  county  where  rendered,  includ- 
ing lands  acquired  for  the  roadway,  right  of 
way,  depots  and  other  purposes  of  the  com- 
pany, and  continues  to  be  so  against  the  prop- 
erty in  the  hands  of  tne  purchaser  at  the 
foreclosure  sale. —  Stewart  v.  Railway  Co.,  53 
Oh.  St.   151    (1895). 

Enforcement  of  lien  by  such  judgment 
creditor  —  subrogation  of  purchaser 
to  rights  of  mortgagee  —  application 
of  proceeds. 

See  Stewart  v.  Railway,  53  Oh.  St.  151 
(1895).  I 

Foreclosure  in  federal  court  —  notice. 

A  suit  brought  in  a  federal  court  to  fore- 
close a  mortgage  on  the  property  of  a  railroad 
corporation,  operates  as  constructive  notice 
throughout  the  district,  and  all  persons  ac- 1 
quiring  an  interest  in  or  lien  on  any  part  of 
the  property  during  the  pendency  of  the  suit 
will  be  bound  by  the  decree  and  sale  made 
thereunder ;  the  purchaser  will  take  the  prop- 
erty  discharged  from  all  such  liens  and  inter- 
ests: though  the  persons  obtaining  them  be 
not  parties  to  the  suit,  they  must  seek  satis- 
faction from  the  proceeds  of  the  sale,  to  reach 
which  they  should  become  parties,  and  bring 
their  claims  to  the  attention  of  the  court  by 
appropriate  pleadings. —  Stewart  v.  Railway 
Co.,  53  Oh.  St.  151   (1895). 

Sale  of  part  of  road  to  pay  interest. 

Where  the  mortgage  so  stipulates,  the  trus- 
tees may  cause  to  be  sold  so  much  of  the  road 
as  is  necessary  to  pay  arrearages  of  interest, 
though  no  part  of  the  principal  has  become 
due. —  Goodman  v.  Cincinnati,  etc.,  R.  R.  Co., 
2  Dis.  17G    (1858). 

Action  by  one  bondholder  on  behalf  of 
all. 

An  action  brought  by  one  bondholder  to  en- 
force an  equitable  lien  based  on  railroad 
equipment  bonds,  alleging  that  the  suit  is  filed 
•'  in  his  own  behalf  as  well  as  in  behalf  of  all 
those  in  like  interest  who  may  come  in  and 
contribute  to  the  expenses  of  and  join  in  the 


Railroad  Corporations. 


199 


Narrow  Gauge  Roads,  Powers  of,  $  3286-1. 


prosecution  of  the  suit,  is  binding  onlj  on 
those  who  are  made  or  become  parties  to  the 
suit;  tlic  parties  who  are  qo1  named  are  not 
parties  to  the  suit,  and  arc  not  bound  by  the 
proceedings  therein  unless  they  elect  to  come 
in  and  claim  as  such  and  bear  their  propor 
tion   of  tin-  expenses;   or   unless,  alter   having 

had   notice   and    an  opportunity    to   c< •   in, 

they  refuse  or  neglect  to  do  so. —  Adelberl 
College  v.  Toledo,  etc..  Ry.  Co.,  3  \.  P.  L5 
(1896);  s.  c.,  5  Dec.  14;  Carpenter  v.  (anal 
Co.,  35  Oh.  St.  307   (1880). 

Foreclosure. 

The  holder  of  a  bond  may  enforce  his  lien 
on  behalf  of  his  own  interesi  or  on  behalf  of 

any  person  to  whom  he  has  transferred  certain 
of  his  interest  coupons,  but  the  holder  of  non- 
negotiable  coupons  cannot  maintain  an  action 
in  his  own  name  to  compel  the  trustees  to 
foreclose.—  See  Wright  v.  Ohio,  etc..  R.  R. 
Co.,   1   Dis.   405    (1S57). 

Power  of  mortgagee  to  take  possession. 

A  power  inserted  in  a  mortgage  authoriz- 
ing the  mortgagee,  upon  default  of  payment,  to 
take  possession  of  the  railroad  and  other  prop- 
erty connected  therewith,  and  to  use  or  sell 
the  same,  must  be  exerted  upon  all  the  prop- 
erty mortgaged;  and  does  not  authorize  the 
mortgagee  to  detach  portions  thereof,  either 
from  the  possession  of  the  company  or  an 
officer  succeeding  to  its  rights  by  a  valid  lew. 
—  Coe  v.  Peacock,   14  Oh.  St.   187    (1863). 

"Undelivered   bonds    not    subject  to    exe- 
cution. 

Railroad  mortgage  bonds  held  by  the  com- 
pany or  its  agents,  for  the  use  of  the  company 
before  delivery,  are  not  subject  to  execution 
as  property  of  the  company,  nor  can  they  be 
subjected  to  sale  by  proceedings  in  aid  of  exe 
cution. —  Means  v.  Cincinnati,  etc.,  R.  R.  Co.. 
2  Dis.  405    (1859). 

Exemption  from  execution. 

The  execution  of  a  mortgage  by  a  railroad 
give   no   exemption   to   its   per 


Bona]    property    from    liabilil  debts 

1  ha  I   I  lie t  ion  of  a  like  n 

individual    would    qo\  Immi 

bus,  etc.,  R.  R,  I  o.,  10  Oh 

v.  Knox  County   Bank,  10  I  'I 

Sc  ( !arey   v.   Pittsburg,  etc.,  I:    R.  Co     I   W 

I..  M.  338  I  1859). 

Injunction   against    sale   on   execution. 
An   injunction    may    be  alio  lining 

t  lie   removal   am!   -ale  on   execution   of   pO! 

of  the  mortgaged  property  of  a  railroad  com- 
panj    "ii    the   application   of  the    n 

hen    t  be   n  hole  of  the   properly  i-  adn 
i"  be  inadequate  security  for  t  he  paymenl  of 
the  mortgage  debts.      Lane   \.   Baughman,   17 
Oh.   st.   642    (1867)  ;    Ludlow  v.   Hurd,    I    DU. 
552  (1857). 

Refusal    of   sheriff   to   levy  —  damages. 

Where  the  amount  of  mortgages  ex  eeds  the 
entire  value  of  the  mortgaged  property,  only 
nominal  damages  can  be  recovered  against  the 
sheriff  for  refusing  to  levy  upon  and  sell  the 
property  on  execution-  againsl  the  company. 
—  Coopers   v.    Wolf,    15    Oh.    31  864). 

See  Coe  v.  Peacock,  11  Oh.  St.  187    (186 

Remedy  of  judgment  creditor  in  equity. 
When  the  property  i-  inadequate  security 
for  the  payment  of  mortgage  debts,  a  judg- 
ment creditor's  remedy  is  in  equity,  to  Bubject 
the  interest  of  the  mortgagor  to  the  paymenl 
of  his  judgment,  or  where  the  nature  of  his 
claim  is  such  as  to  entitle  him  to  have  it  paid 
out  of  the  earnings  i  mpany,  l>\    pro 

ceedings  to  appropriate  so  much  thereof  as 
may  be  necessary  to  the  payment  of  the  judg- 
ment. Lane  v.  Baughman,  17  Oh.  St.  ''■*- 
(1807).  Sec  Carev  v.  Pittsburg,  etc.,  1:.  R. 
Co.,  1    W.  L.  M.  338  I  1859  , 

Execution  against  property  in  use. 
See  State  v.  Brinson,  40  W.  L.  B.  .'7:!  (1901   . 

Other  sections. 
See  |  3309a. 


company    c 

§  3286-1.  POWER  OF  NARROW  GAUGE  ROADS.—  Any  railroad  company 
having  a  gauge  not  exceeding  three  feet,  known  as  a  narrow  gauge  road,  heretofore  or 
that  may  be  hereafter  incorporated  under  the  laws  of  this  state,  and  having  at  least 
fifty  miles  of  completed  road,  and  not  exceeding  six  thousand  dollars  per  mile  of 
first  mortgage  bonds  issued  for  each  mile  of  completed  road,  for  the  purpose  of  fund- 
ing its  floating  debt,  or  for  the  completion  of  its  unfinished  proposed  line  of  road,  or 
for  the  purchase  of  rolling  stock,  or  for  the  erection  of  repair-shops,  or  for  the  pur- 
chase of  supplies  necessary  for  the  operation  of  said  road,  or  for  any  or  all  of  said 
purposes,  shall  be  and  the  same  is  hereby  authorized  to  issue  its  second  mortgage 
bonds,  bearing  a  rate  of  interest  not  exceeding  seven  per  cent,  per  annum,  secured  by 
a  second  mortgage  upon  its  entire  property,  real  and  personal,  and  its  franchise,  for 
any  amount  not  exceeding  two-thirds  of  the  amount  of  its  authorized  capital  stock, 
and  sell  the  same  at  such  time  and  places,  within  or  without  the  state,  and  at  such 
rate  as  the  directors  of  said  railway  company  may  deem  for  its  best  interest:  provided, 
said  issue  of  bonds  and  mortgage  shall  be  authorized  by  a  vote,  either  in  person  or  by 
proxy,  of  the  majority  of  the  holders  of  paid  up  stock;  and  provided,  that  previous  to 
taking  said  vote  thirty  days'  notice  shall  be  given  to  the  stockholders  of  said  railway 
company,  by  publication  in  a  newspaper  of  general  circulation  in  each  and  every 
county  through  which  the  line  of  road  is  operated.     (April  10.  1880.  77  v.  164.) 


200 


Private  Corporations  in  Ohio. 


Power  to  Borrow  Money  —  Mortgage  for,  etc.,   SS   3287-3289. 


§  3287.  INTEREST,  SECURITY,  EXTENT  OF  POWER.—  A  company  may 
borrow  money  at  a  rate  not  exceeding  seven  per  centum  per  annum,  for  any  purpose 
that  the  same  may  be  needed  in  its  business,  and  execute  bonds  or  promissory  notes 
therefor  in  sums  of  not  less  than  one  hundred  dollars ;  and  it  may  secure  the  payment 
of  such  bonds  and  notes  by  a  pledge  of  its  property  and  income;  but  the  aggregate 
indebtedness  authorized  by  this  and  the  preceding  section  shall  not  exceed  the  amount 
of  the  capital  stock  of  the  company.     (May  1,  1852,  50  v.  274,  §  14.) 


What  income  can  be  pledged. 

The  income  which  railway  corporations  arc 
authorized  to  pledge  is  their  net  income,  not 
their  moss  earnings.  It  is  therefore  the  right 
and  duty  of  these  companies  to  apply  their 
earnings,  first,  to  pay  for  all  services  rendered 
by  laborers,  agents  and  officers;  for  taxes. 
machinery,  fuel,  expenses  of  maintaining  and 
operating  their  roads,  and  for  liabilities  grow- 
ing thereout.  Second,  to  pay  interest  on  mort- 
gages. Third,  to  pay  liens  in  the  order  of 
priority.  —  Carey  v.  Pittsburg,  etc.,  R.  R.  Co., 
1  W.  L.  M.  338  (1859).  See  McCormack  v. 
( lentral  Ohio  R.R.  Co..  3  W.  L.  G.  218  ( 1859  )  ; 
Darsl  \.  Pittsburg,  etc.,  R.  R.  Co.,  4  W.  L.  G. 
377    (1859). 

Injunction     to      restrain     diversion     of 
funds   for  payment   of  interest. 

A  court  of  equity,  upon  application  of  an 
income  bondholder  for  himself  and  others, 
should  take  cognizance  of  the  trust,  and  re- 
strain the  corporation  from  diverting  the 
funds,  to  which  alone  he  and  his  associates 
may  look  for  the  payment  of  their  interest.  — 
Shoemaker  v.  Dayton,  etc..  R.  R.  Co.,  IS  W.  L. 
B.  43  (1S87)  :  s.  c,  3  0.  C.  C.  473:  Carey  v. 
Pittsburg,  etc...  R.  R.  Co,,  1  W.  L.  M.  338 
(1859).  See  Darst  v.  Pittsburg,  etc.,  R.  R. 
Co.,  1  W.  L.  G.  377   (1859). 

■When  is  interest  cumulative. 

See  Shoemaker  v.  Dayton,  etc.,  R.  R.  Co.,  18 
W.  L.  B.  43  (1887);  s.  c.,  3  0.  C.  C.  473 
(1888)  ;  s.  c,  2  C.  D.  270. 


Amount  of  loans  authorized. 

One  lien  may  be  put  on  the  property  after 
another  until  bonds  are  executed  to  the 
amount  authorized  ami  the  power  exhausted. 
—  See  Coe  v.  Columbus,  etc.,  R.  R.  Co.,  10  Oh. 
St.  372,  400   (18.1!)). 

Amount  of  issue  —  recovery  from  stock- 
holders. 

Railway  companies  have  general  power  to 
issue  bonds  secured  by  mortgage,  and  where 
such  bonds  arc  issued  in  excess  of  the  amount 
allowed  by  law,  there  can  be  no  recovery  on 
the  bonds  against  the  individual  stockholders 
and  directors  who  caused  the  issue.  —  Ray- 
mond v.  Spring  Grove,  etc.,  Ry.  Co.,  21  W.  L. 
B.  103  (1889). 

Estoppel  to  deny  validity  of  issue. 

Where  the  stock  of  a  railway  company  is 
irregularly  increased,  and  bonds  are  issued 
based  upon  such  increase  in  stock,  both  the 
corporation  and  the  stockholders  are  estopped 
to  deny  the  validity  of  the  issue  after  they 
have  acquiesced  in  the  same  for  three  years. — 
Farmers  Trust  Co.  v.  Toledo,  etc..  Ry.  Co.,  67 
Fed.  49  (1895)  ;  s.  c,  9  O.  F.  D.  230. 

Street  railroads. 

This  section,  together  with  §§  3288,  3289, 
are  applicable  to  street  railroad  companies. — 
See  §  3309a. 


§  3288.  NATURE  OF  MORTGAGE.  —  Such  mortgage  or  pledge  may  be  made  by 
the  company  executing  a  deed  of  mortgage,  or  other  instrument  in  writing,'  for  the 
purpose  of  securing  the  payment  of  the  loan  of  money  made,  or  the  notes,  bonds,  or 
other  evidences  of  indebtedness  issued  by  the  company,  which  mortgage  may  include 
the  personal  as  well  as  the  real  property  of  the  company.  (February  9,  1853,  51  v. 
332,  §  1.) 

§  3289.  RECORD  OF  MORTGAGE.  —  It  shall  be  held  to  be  a  sufficient  record  of 
any  such  mortgage,  heretofore  or  hereafter  made,  if  the  same  is  recorded  in  the  office 
of  the  recorder  of  deeds  in  each  of  the  counties  in  which  the  real  or  personal  property 
is  situate  or  employed,  and  the  mortgage  so  recorded  shall  be  held  to  be  a  good  and 
substantial  lien,  from  the  date  of  the  record  of  the  same  in  each  county  where  it  is 
recorded,  as  well  upon  the  personal  as  the  real  property  of  the  company.  (February 
9,  1853,  51  v.  332,  §  2.) 


Priority  of  mortgagee. 

A  recorded  mortgage  given  by  a  railroad 
company  on  its  road  lied  and  other  property, 
creates  a  lien  whose  priority  cannot  be  dis- 
placed thereafter  either  directly  by  a  mort- 
gage  given   by   the  company,  or  indirectly  by 


a  contract  between  the  company  and  a  third 
party  for  the  erection  of  buildings  or  other 
works  of  original  construction.  —  Toledo,  etc., 
R.  R.  Co.  v.  Hamilton,  134  U.  S.  29G  (1890); 
s.  c.  G  O.  F.  D.  537. 


I\.\l  LKOAI)    (  "OKI-OK  \ 


201 


Bonds,   Power  to  Sell,  §  3290. 


Defective  mortgages  —  rights  of  general 
creditors. 

A  creditor  having  been  permitted  to  levy  an 
execul  ion  upon  a  pari  of  I  lie  personal  prop- 
erty, including  a  po]  i  ion  acquired  sub  e 
quently  to  the  dale  of  both  second  and  third 
mortgages,   bu1    this   levy   having   been    mad 


i"  a  preference  over  the  equitable  second  morl 

gag(        C'oe  v.  (  olumbu 

Oh.  St.  372    |  I 

Defective    mortgage  —  rigln  ,  inst 

subsequent    mortgages. 

\\  here  a  moi  I  feci  ive  in 

t  inn.  .-i  nd   i  hei  efore  \  oid  under  oui   la  •■•  -.it   is 


after  the  action  to  foreclose  was  brought,  and    good  as  againsl  a  subsequent   mortg 
while  the  property  was  in  the  hands  of  a   re      is  made  subjeel   to  it.  —  Ci 
ceiver  appointed  in  the  case,  he  is  no1   entitled     I:.  R.  Co.,  in  Oh.  St,  372  (IE 


§  3290.  POWER  OF  DIRECTORS  TO  SELL  BONDS.  —  The  directors  of  the  com- 
pany may  sell,  negotiate,  mortgage,  or  pledge  such  bonds  or  notes,  as  well  as  any 
notes,  bonds,  scrip,  or  certificates  for  the  payment  of  money  or  property  which  the 
company  may  have  theretofore  received,  or  shall  hereafter  receive,  as  donations,  or  in 
payment  of  subscriptions  to  the  capital  stock,  or  for  other  dues  of  the  company,  at 
such  times  and  in  such  places,  either  within  or  without  the  state,  and  at  such  rates 
and  for  such  prices  at  not  less  than  seventy-five  cents  on  the  dollar,  as  in  the  opinion 
of  the  directors  will  best  advance  the  interests  of  the  company;  and  if  such  notes  or 
bonds  are  thus  sold  at  a  discount,  without  fraud,  the  sale  shall  be  as  valid  in  every 
respect,  and  the  securities  as  binding  for  the  respective  amounts  thereof,  as  if  they 
were  sold  at  their  par  value.  (December  15,  1852,  51  v.  286,  §  1;  March  14,  1876. 
73  v.  25,  §  5.) 


Character  of  issue  —  sale  or  loan. 

The  giving  of  a  guaranty  of  bonds  is  to  be 
looked  to  in  determining  whether  the  real 
transaction  is  a  bona  fide  sale  or  a  disguised 
loan.  If  a  sale,  the  guaranty  passes  as  an  in- 
cident, and  is,  in  equity,  assignable  to  subse- 
quent purchasers  of  the  bonds.  —  Bank  of 
Ashland  v.  Jones,  16  Oh.  St.  145  (1865).  See 
Junction  R.  R.  Co.  v.  Bank,  12  Wallace  (U. 
8.)   226    (1870). 

Sale  of  bonds  not  made  a  loan  by  a  per- 
sonal guaranty. 

When  a  transaction  would  otherwise  be  a 
sale  by  a  railroad  corporation  of  its  own 
bonds/ the  fact  that  their  payment  is  guar- 
anteed by  the  directors  in  their  individual 
capacities  does  not  necessarily  make  the 
transaction  a  loan.  —  Bank  of  Ashland  v. 
Jones,  16  Oh.  St.  145   (1865). 

Sale  of  bonds  —  usury. 

Before  a  sale  of  bonds  can  be  declared  in- 
valid, as  in  contravention  of  the  settled  policy 
of  the  state  where  made,  the  repugnancy  must 
be  plain  and  substantial.  The  fact  that  bonds 
sold  here  bear  a  higher  rate  of  interest  than 
may  be  prescribed  for  similar  bonds  issued 
under  the  authority  of  this  state,  but  which 
are  authorized  to  be  sold  at  any  price,  create- 
no  repugnancy.  —  Bank  of  Ashland  v.  Jones, 
16  Oh.   St.   145    (1865). 

Power  to  sell  bonds  at  less  than  par. 

A  company  having  power  to  sell  its  bonds 
at  less  than  par  may  exchange  them  for  iron 
rails.  —  C'oe  v.  Columbus,  etc.,  R.  R.  Co.,  10 
Oh.  St.  372  (1859). 

Sale  of  bonds  in  foreign  state. 

A  corporation  of  a  state,  authorized  to  raise 
money  by  the  sale  of  its  bonds,  may  itself 
sell  the  bonds  directly,  either  within  or  with- 


out the  state,  and  such  transaction  will  not 
be  regarded  as  a  loan.  Bank  oi  Ashland  v. 
Jones,  L6  Oh.  St.  1  15  I  1865). 

Application   to    foreign   corporations. 

This   section   applies   only   to  domestic  cor- 
porations, and  a   sale  of  bonds   by  a    i 
corporation   a1    less    than    par   i-    usuri 
McGregor    \ .    I  !o\  ington,    etc.,    R.    II.    Co.,    I 
Dis.  50!)   i  1857). 

Applies   to    foreign   corporations. 

The  law  of  Ohio  authorizing  railroad  com- 
panies to  sell  their  own  bonds  and  noti 
such  juices  as  thej  may  deem  expedient,  is 
extended  by  comity  to  the  companies  ol 
states  authorized  to  transact  business  in 
Ohio.  —Junction  R.  R.  Co.  v.  Bank,  12  Wal- 
lace  (U.  S.i   -220   (1870). 

Repeal  of  usury  laws. 

In  so  far  as  sections  3290  and  3287  permit 
railroad  companies  to  borrow  money  at 
of  interesl  exceeding  8  per  cent.,  their  effect 
is  to  repeal  the  usury  laws  as  to  such  com- 
panies, and  that  note-  or  lease  warrant-  exe- 
cuted by  a  railroad  company  for  deferred  pay- 
ments on  equipmenl  purchased  conditionally, 
and  which  were  payable  monthly  as  rental, 
the  title  to  the  equipment  to  vest  in  the  com- 
pany on  their  full  payment  are  m.t  usurious, 
though  their  amount  i-  greater  than  the 
stated  value  of  the  equipment  with  8  per  cent. 
interesl  until  maturity,  hut  not  greater  than 
would  have  been  required  if  they  had  borne  7 
per  cent,  interest,  and  had  been  discounted 
at  7">  per  cent  of  par.  Metropolitan  Trust 
Co:   v.  Columbus,  etc.,   K.   R.  I  o.,  93   F<  d.  702 

When  sale  is  for  seventy-five  per  cent. 

Where  one  K.  contracted  to  perform  certain 
services    in    the    reorganization    of    a    railway 


202 


Private  Corporations  in  Ohio. 


Officers,  Classification  of  Directors,  etc.,  §§  3291-3296. 


company,  for  which  he  was  to  receive  certain 
amounts  of  bonds  and  stock  in  the  reorganized 

company,  it  being  claimed  that  the  bonds  were 
issued  tor  less  than  7.")  per  cent,  of  their  par 
value,  and  were  therefore  void  under  this  sec- 
tion, held,  that   the  stock  should  be  taken  at 


its  actual,  and  not  at  its  par,  value,  in  com- 
puting the  amount  received  by  the  company 
tor  the  bonds.  —  Continental  Trust  Co.  v.  To- 
ledo, etc.,  R.  R.  Co.,  80  Fed.  929  (1898);  s.  c, 
95  Fed.  497  (1899);  s.  c.  S2  Fed.  642 
(1S97). 


§  3291.  TRANSFER  BOOKS  IN  FOREIGN  STATES.  —  The  directors  of  any 
company,  when  they  deem  it  expedient  for  the  interest  or  convenience  of  the  com- 
pany, may  open  transfer  books  in  any  of  the  states  of  the  United  States,  for  the  pur- 
pose of  transferring  stock  which  may  be  purchased  or  held  by  persons  out  of  this 
state;  and  they  may  employ  suitable  agents  to  keep  such  transfer  books,  whose  acts, 
done  under  the  authority  of  this  section,  shall  be  binding  on  the  company.  (March 
21,  1850,  48  v.  51,  §  1.) 

§  3292.  VICE-PRESIDENT.  —  The  directors  may  elect  from  their  number  a  vice- 
president,  whenever,  in  their  opinion,  the  interests  or  convenience  of  the  company 
requires  it;  and  in  case  of  the  absence,  death,  resignation,  or  other  disability  of  the 
president,  the  vice-president  so  elected  shall  exercise  the  same  powers  and  discharge 
the  same  duties  as  properly  and  legally  belong  to  the  office  of  president,  until  such 
vacancy  is  filled  by  a  new  election,  or  such  disability  removed.  (March  29,  1856,  53 
v.  36,  §  1.) 


Duties. 

The  office  of  vice-resident  may  be  made  ac- 
tive and  independent.  —  Colman  v.  ^Yest  Vir- 
ginia, etc.,  Co.,  25  W.  Va.  148  (1884)  ;  Chicago, 


etc.,  Co.  v.  James.  22  Wis.  194  (1S67)  ;  s.  c,  24 
Wis.  388  (1869);  Richards'  v.  Osceola,  79  la. 
707    (1890).     See  §  3247  and  notes. 


§  3293.  TREASURER.  —  The  directors  may,  whenever,  in  their  opinion,  the 
interests  or  convenience  of  the  company  will  be  promoted  thereby,  elect  any  suitable 
person  as  treasurer  of  the  company,  to  be  subject  to  such  rules  and  regulations  as 
they  or  the  company  may  prescribe.     (April  7,  1857,  54  v.  103,  §  1.) 


§  3294.  CHANGE  OF  NUMBER  OF  DIRECTORS.  —  A  company  may,  by  a  vote 
of  a  majority  of  its  stock  at  any  regular  annual  meeting  of  the  company,  increase  the 
number  of  directors  to  any  number  not  greater  than  fifteen,  or  decrease  the  number 
before  or  after  such  increase  to  any  number  not  below  seven.  (January  14,  1875,  72 
v.  17,  §  3.) 


May  be  done  by  majority. 

A  decrease  or  increase  in  the  number  of  di- 
rectors is  not  such  a  fundamental  change  but 


that    it    may    be    done    by    the    majority.  — 

Mower  v.  Staples,  32  Minii.  284   (1884). 


§  3295.  CLASSIFICATION  OF  DIRECTORS.  —  The  stockholders  of  a  company, 
whether  organized  under  general  or  special  laws,  whose  railroad  is  wholly  or  partly 
within  this  state,  may,  at  any  regular  meeting  of  its  stockholders,  or  a  special  meet- 
ing of  which  at  least  thirty  days  notice  has  been  given  by  publication,  by  an  affirma- 
tive vote  of  the  stockholders  owning  a  majority  of  the  stock  of  the  company,  direct 
its  board  of  directors  to  so  classify  the  members  thereof,  by  lot  or  otherwise,  that  one- 
third  thereof  shall  terminate  their  official  term  at  the  first  annual  election  thereafter, 
one-third  at  the  next  annual  election  thereafter,  and  the  remainder  at  the  next  suc- 
ceeding annual  election  thereafter;  at  the  first  regular  election  succeeding  such 
classification,  when  the  term  of  the  directors  of  the  first  class  expires,  and  at  each 
succeeding  annual  election  thereafter,  the  stockholders  shall  elect  directors  for  three 
years,  to  take  the  place  of  those  retiring,  and  no  more;  and  all  vacancies  which  other- 
wise occur  in  the  board  shall  be  filled  in  the  manner  prescribed  by  law.  (April  30, 
1869,  66  v.  77,  §  1.) 

§  3296.  CLASSIFICATION  OF  DIRECTORS  —  VOTING.  —  The  stockholders  of 
a  company  whose  road  is  wholly  or  partly  within  this  state,  may,  at  any  regular 


Railroad  Corpob  \  n 


203 


Conditional  Subscriptions  —  Exemption   from   Execution,   ft  :i299. 


annual  election  of  directors  thereof,  so  classify  and  elect    such  direct  one-third 

thereof  shall  serve  for  one  year,  one-third  for  two  years,  and  the  r«  'hree 

years;  at  each  succeeding  annual  election  thereafter  the  stockholders  shall  elect 
directors  to  take  the  place  of  those  whose  terms  so  expire;  no  person  shall  be  allowed 
to  vote  for  directors  as  aforesaid  unless  he  has  been  a  registered  stockholder  of  such 
company  at  least  thirty  days  prior  to  such  election;  and  the  registry  of  such 
shall  be  made  in  the  books  kept  at  the  principal  office  of  the  company.  (April  30, 
1869,  66  v.  77,  §  2.) 

§  3297.  CLASSIFICATION  OF  DIRECTORS  —  RIGHTS  OF  CREDITORS.  —  The 
provisions  of  the  two  preceding  sections  shall  also  apply  to  companies  whose  bond- 
holders or  other  creditors  share  with  the  stockholders  in  the  election  of  directors;  and 
in  such  case  the  vote  necessary  to  direct  the  classification  provided  for  in  said  sec- 
tions shall  be  the  same  as  is  required  to  elect  directors  of  such  company.  (April  30, 
1869,  66  v.  77,  §  3.) 


§  3298.  SUBSCRIPTIONS  CONDITIONED  ON  COMPLETION  OF  ROAD.  —  The 
directors  of  a  company  which  has  expended  in  the  construction  of  its  road  ten  per 
centum  of  its  authorized  capital,  and  has  obtained  actual  bona  fide  subscriptions  to 
its  capital  stock  to  the  amount  of  at  least  twenty  per  centum  thereof,  may  receive 
subscriptions  to  its  capital  stock,  payable  in  such  installments,  dependent  upon  the 
completion  of  the  whole  or  any  part  of  its  road  so  that  cars  may  pass  over  the  same, 
as  its  directors  may  deem  expedient,  and  upon  full  payment  thereof  may  issue  cer- 
tificates of  stock  therefor;  but  no  subscriber  to  the  stock  hereby  authorized  shall  be 
entitled  to  any  of  the  privileges  of  a  stockholder  until  his  subscription  is  fully  paid, 
nor  shall  he,  for  any  purpose,  be  deemed  a  stockholder  until  the  happening  of  the 
contingency  upon  which  the  installments  on  his  subscription  are  made  dependent. 
(April  15,  1857,  54  v.  133,  §  3.) 


Conditional   subscriptions   taken  before 
twenty  per  cent,  is  subscribed. 

If  at  the  time  a  subscription  is  made  it  i- 
unauthorized  by  this  section,  it  may  be  a 
continuing  offer  to  subscribe  and  become  ab- 
solute when  its  conditions  have  been  com- 
plied with,  though  it  may  be  withdrawn  at 
any  time  before  such  performance.  —  Arm- 
strong v.  Karshner,  47  Oh.  St.  276   (1890). 

Condition   of  partial  completion. 

Where  a  subscription  is  conditioned  upon 
the  completion  and  operation  of  the  road  be- 
tween specified  points,  it  is  not  necessary  that 
the  whole  road  should  be  completed  before 
the  subscription  can  be  enforced.  —  Lesher  v. 
Karshner,  47  Oh.  St.  302  (1890). 


Effect  of  words  "  paid  as  donation." 

The  addition  of  the  words  "  paid  as  dona- 
tion" do  not  convert  a  conditional  subscrip- 
tion to  an  agreement  for  a  gift.  —  Lesher  v. 
Karshner,  47  I  »h.  St.  302     L890  , 

Right  of  conditional  subscriber  to  vote. 
A  subscriber  to  stock  is  entitled  to  no  priv- 
ileges until  his  subscription  is  fully  paid,  for 
instance,  he  cannot  vote  if  action  is  I 
taken  under  §  3300.  Railroad  <  o.  v.  Bins- 
dale,  4.->  Oh.  St.  556   I  1888 

Conditional  subscriptions  generally. 
See   S   3242L   no 


§  3299.  WHEN  PROPERTY  EXEMPT  FROM  EXECUTION.  —  A  company  which 
has  begu»n  and  partly  built  its  road,  but  is  unable  to  finish  and  operate  the  same  for 
want  of  means,  may  take  subscriptions  conditioned  that  the  proceeds  thereof  shall 
not  be  used  or  applied  upon  the  debts  of  the  company;  and  all  money  or  material  col- 
lected upon  such  subscriptions,  and  all  material  or  implements  purchased  with  such 
money  for  the  construction  of  the  track,  houses,  depots,  and  rolling  stock  of  the  com- 
pany, shall  be  exempt  from  execution,  or  other  process  or  proceedings  for  the  pay- 
ment of  the  debts  of  the  company  so  long  as  such  money,  material,  or  implements  are 
used  or  designed  for  the  construction  of  such  track,  houses,  depots,  and  rolling  stock. 
(April  16,  1867,  64  v.  192,  §  1.) 

Executions  against  railroad  property. 

Sec  §  328(5,  notes. 


204 


Private  Corporations  in  Ohio. 


Purchase,  Lease,  «tc,   of  Other  Roads,   §  3300. 

§  3300.  AID,  LEASE  OR  PURCHASE  OF  OTHER  ROADS.—  Any  company  may 
aid  another  in  the  construction  of  its  road,  by  means  of  subscription  to  the  capital 
stock  of  such  company,  or  otherwise,  for  the  purpose  of  forming  a  connection  of  the 
roads  of  the  companies,  when  the  road  of  the  company  so  aided  does  not  and  will  not, 
when  constructed,  form  a  competing  line;  any  company  may  lease  or  purchase  any 
part  or  all  of  a  railroad  constructed,  or  in  course  of  construction  by  another  company, 
if  the  lines  of  read  of  such  companies  are  continuous  or  connected,  and  not  competing, 
upon  such  terms  as  may  be  agreed  upon  between  th3  companies;  and  after  such  pur- 
chase the  purchasing  company  shall  be  vested  of  all  the  rights  and  powers  in  respect 
to  the  location,  construction,  completion  and  operation  of  such  railroad,  and  of 
branches  thereto  of  the  company  from  which  it  purchased  said  railroad,  including  the 
power  to  acquire  and  appropriate  property  therefor,  and  shall  be  subject  to  all  the 
duties,  obligations  and  restrictions  of  said  company;  and  any  two  or  more  companies 
whose  lines  are  connected  and  not  competing,  may  enter  into  any  arrangement  for 
their  common  benefit  consistent  with,  and  calculated  to  promote  the  objects  for  which 
they  were  created.  (March  14,  1882,  79  v.  35;  R.  S.  1880,  §  3300;  April  15,  1873, 
70  v.   129,  §  24.) 

Power  of  foreign  corporations  to  lease. 

A  foreign  corporation  having  no  charter 
from  the  state  of  Ohio,  authorizing  it  to  con- 
struct and  operate  a  railroad  in  this  state, 
cannot,  by  a  transfer  of  a  portion  of  a  rail- 
road already  constructed  in  the  state  by  legal 
authority,  acquire  a  right  to  use  and  operate 
such  railroad  within  this  state.  —  Ohio,  etc., 
R.  R.  Co.  v.  Indianapolis,  etc.,  R.  R.  Co.,  5  A. 
L.  Reg.   (X.  S.)   733  )1866). 

What  roads  are  competing. 

The  lines  of  two  railroad  companies  which 
are  in  their  general  features  parallel  and  com- 
peting', cannot  be  connected  under  this  sec- 
tion.—State  v.  Vanderbilt,  37  Oh.  St.  590 
(1882).  See  Chapman  v.  Mad  River,  etc.,  R. 
R.  Co.,  6  Oh.  St.  119   (1856). 

"What  roads  not  competing. 

Roads  running  at  right  angles  from  point  of 
connection  cannot  he  said  to  be  competing 
'"  in  their  general  features  or  from  a  geo- 
graphical standpoint:  "  although  there  may  lie 
incidental  competition  on  through  or  sea- 
hoard  business.  —  See  Burke  v.  Cleveland,  etc.. 
l!y.  Co.,  22  W.  L.  B.  11    (1889). 

Roads  may  be  competing  though  they 
reach  competing  points  by  trackage 
arrangements  with  other  lines. 

Hafer  v.  Cincinnati,  etc.,  R.  R.  Co..  29  W.  L. 
11.  68    I  L893). 

Roads    may    be    competing    though    not 

actually  cutting  rates. 

Eafer  v.  Cincinnati,  etc.,  R.  R.  Co.,  29  W.  L. 
B.  us    (1893). 

What  roads  are  connected. 

Two  railroad  companies  owning  lines  of  rail- 
road connected  only  by  other  railroads,  which 
such  railroads  hold  by  lease,  are  not  connected. 
See    State    v.    Vanderbilt,    37    Oh.    St.    590 

1 882  i . 

Roads   joined   by   tracks    of   union    com- 
pany  are  connected. 
Where  roads  air  connected  by  the  tracks  of 

a  union  depot  and  terminal  company,  in  which 


each  has  a  proprietary  interest,  they  are  con- 
necting lines  within  the  statute.  —  See  Burke 
v.   Cleveland,    etc.,   Rv.   Co.,   22   W.   L.   B.    11 

(1889). 

Aid  by  traffic  guaranty  and  purchase  of 
bonds. 

Aid  may  be  extended  by  a  traffic  guaranty 
and  purchase  of  bonds.  —  O.  &  M.  R.  R.  Co.  v. 
Short.  3  W.  L.  B.  1143  (1879). 

Purchase  of  stock  from  stockholders  of 
another  company. 

A  purchase  of  stock  in  a  completed  railroad 
company  by  another  company  from  the  stock- 
holders of  such  company  is  not  authorized  by 
this  section.  —  Columbus,  etc.,  Ry.  Co.  v. 
Burke,  19  W.  L.  B.  27   (18S7). 

Purchase  of  stock  in  other  companies. 

A  purchase  of  all  the  stock  of  a  mining  com- 
pany by  a  railroad  company  can  by  no  con- 
struction  be  brought  within  this  section;  for 
this  section  covers  only  subscriptions  to  stock 
of  railroads  in  aid  of  construction.  —  Colum- 
bus,, etc..  Rv.  Co.  v.  Burke,  19  W.  L.  B.  27 
(1887). 

Statute  of  frauds. 

A  lease  extending  over  three  years  must  be 
acknowledged  according  to  the  statute  of 
frauds.  —  Ohio.  etc..  R.  R.  Co.  v.  Indianapolis, 
etc.,  R.  R.  Co..  o  A.  L.  Reg.  (X.  S.)  733  (1SG0). 

Covenant  to  pay  interest. 

Where  the  lessee  agreed  to  advance  the 
money  necessary  to  pay  the  coupons  on  the 
bonds  of  the  lessor,  such  advance  to  be  paid 
out  of  subsequent  earnings  and  not  otherwise. 
the  agreement  will  not  he  held  to  be  harsh. 
opressive  or  inequitable,  and  not  to  be  an 
agreement  to  loan  money  to  an  insolvent  cor- 
poration, which  the  court  will  not  enforce. — 
Benry  v.  Pittsburg,  etc.,  Ry.  Co.,  2  N.  P.  US 
I  1895)  :   s.  e..  5  Dec.  41. 

Rescission  of  lease. 

A  lease  can  only  he  rescinded  by  the  same 
consent  of  stockholders  required  to  authorize 
a  lease.  —  Eenry  v.  Pittsburg,  etc.,  Rv.  Co.,  2 
X.  P.  US  (1895);  s.  c,  5  Dec.  41. 


Railroad  (  N  irp<  (RATIONS. 


205 


Leases,  etc.,  of  Other  Roads, 


Right   of   receiver   to   abrogate   lease   or 

contract. 

See  New  York,  etc.,  It.  It.  Co.  v.  Railwaj 
Co.,  58  Fed.  268  (1893);  [nvestmeni  Co.  v. 
Kail  way  Co.,  11   Fed.  :;;s  |  L889). 

Specific   performance. 

The  specific  performance  of  a  lease  xn  ill  not 


panj    with    defendant's    road,   the   connecting 
track    passing   over   a    bridge    previous!)    con 
Jtructetl  bj  d(  fendant  foi  n  -  track    and  « Inch 
foot  passi  agei  -  had  been  permit  ted  to  u 
<  he  pui  pose  ol  transit.     I  he  plainl  iff,  in 
ing  on    fool .   fell   i  h rough   I  he   same,   bi  I 
i  he  rails  <>i  i  he  connect  ing  i  rack,  and  wan  in 
jured    bj     reason    ol    the    defectiv< 


be  compelled   by   a  court.       Henry    \.    Pitts     held,  the  defendant    having   no  interest    in  ->i 
burg,  etc.,  Ry.  Co.,  2  X.  P.  lis   (1895);   s.  c,    control  over  the  track,  cannot   he  held  li 

■     i  „  a  i         in  _       t*       a     /  ii  •     i  .  i  >      • .      ,  ,  /  ■        .  *  i r  'nt         \  i  •  ■      .  .        t . 


5  Dec   41.    See  Port  Clinton,  etc.,  K.  R.  Co.  \ 
Cleveland,  etc.,  R.  R.  Co.,  13  Oh.  St.  544  I  L862). 

Effect  of  lease  or  purchase  on  rights  of 
original  companies. 

Where  the  railroad  ni  one  companj  is  pur 
chased  by  another  railroad  company  in  pur- 
suance of  this  section,  in  the  absence  of  anj 
provision  of  law  to  the  contrary,  the  road 
passes  to  the  purchasing  company  subject  to 
the  same  restrictions  and  limitations  a-  to 
rates  chargeable  for  transportation  as  at- 
tached to  it  in  the  hands  of  the  vendor. 
Campbell  v.  Marietta,  etc..  R.  R.  ('<>..  S.',  Oh. 
St.  ins  (1872);  Railway  Co.  v.  Moore,  ::::  Oh. 
St.  384  i 1878). 

Damages  to  landowners. 

Where  a  railroad  company  has  received  from 
private  parties,  donations  of  lands,  subscrip- 
tions of  stock,  and  payments  in  money,  in 
consideration  that  it  should  locate  its  road  at 
a  particular  place,  and  allow  private  side 
track  and  warehouse  privileges  in  connection 
therewith,  the  company  will  not  lie  permitted 
to  effectuate  a  change  in  fact  (though  not  in 
name)  of  the  line  of  its  road  away  from  such 
place,  by  getting  up  a  new  corporation  and 
constructing  a  new  road  parallel  with  its  old 
one,  under  a  different  charter,  and  permitting 
its  old  line  to  go  to  decay,  without  compen- 
sating the  parties  with  whom  it  lias  con- 
tracted as  aforesaid.  —  Chapman  v.  Mad 
River,  etc.,  R.  R.  Co.,  0  Oh.  St.  119  (1856). 

Sale  of  stock  subscriptions. 

This  section  does  not  confer  authority  to 
sell  stock  subscriptions.  —  See  Railroad  Co.  v. 
Hinsdale,  45  Oh.  St.  550  (1888). 

Release  of  stock  subscriptions. 

When  this  section  is  in  force  at  the  lime  a 
subscription  is  made  to  the  capital  stuck  of  a 
company,  it  becomes  a  part  of  the  contract, 
and  a  sale  thereafter  made  by  the  company  of 
a  part  of  its  road  under  this  section,  does  not 
release  the  subscriber,  except  when  and  as 
provided  for  by  statute,  unless  by  the  sale  the 
company  has  made  the  performance  of  the 
conditions  of  the  subscription  impossible. 
Armstrong  v.  Karshner.  47  Oh.  St.  276   (1890). 

Liability  for  personal  injury. 

Where  the  defendant  made  an  arrangement 

with  the  D.  company  whereby  it  nave  to  the 
hitter  company  the  right  to  construct  a  track 
on  the  side  of  defendant^  roadbed  for  the 
purpose  of  connecting  the  road  of  the  1).  com- 


G    athnej    \.    Little    Minn    l:     I 
Oh.  St.  92  i  1861 1. 

Liability  of  lessor  to   rebuild. 

At   common  la  *\ .  in  t  he  absi  express 

covenant    in  a   lease,  the  lessoi    i-   not    bound 
to    make   repairs,   addil  ions,   oi    impro*  ement  - 
to   the  leased   property,  or   to   rebuild 
tures  thereon  which  have  become  unlit  foi 
imi    i-    there   any    implied   covenant    that    the 
propei  t  \    i-  lit   foi   i  he  purpose  for  \\  hich  it   i- 
leased.    The  fact  thai   the  demised  propertj   i- 
a  railroad  does  not   affect    the  applicatii 
t  hose    principle-.       Pelton    \ .   <  'it  y   oi    <  incin- 
nati.  95  Fed.  336  (189 

Voting  pool  of  stockholders  to  effect 
arrangement  under  this  section. 
An  agreement  of  31  ickholders  for  putting 
their  stock  into  the  hand-  of  a  depository  to 
vote  it  as  directed  by  a  committee  appointed 
by  themselves,  the  purpose  being  to  pa 
control  oi  the  mad  in  another  company,  i- 
not  illegal  under  this  act.  State  v.  Ohio, 
etc.   R.   R,  Co.,  6  O.  C.  C.  415     -  CD. 

518;  -.  c   19  Oh.  St.  668 

Void  conditions  subsequent. 

Where  1  he  lease  contains  a  condition  pro- 
hibiting the  lessee  from  receiving  for  trans- 
portation   property    from    certain    com ting 

mads,   it    ia   a   condit  ion   subsi  ich    i- 

void  as  againsl   public  policy.     -Metropolitan 
Trust  Co.   \ .  <  olumbus,  etc.,   Rv.  » 
is    (1899). 

Corporations  created  prior  to    1851. 
Railroad    companies    incorporated    prii 
the  adoption  of  the  constitution  of   1851 
which   avail   themselves  <>f  this  section   either 
by  taking  or  making  leases,  are  to  b    i    . 
as  thereby  relinquishing  all  rights  incons 
with    title    2    according    to    the    provisions   of 
jj  3233.     Cincinnati,  etc.,  R.  R.  I  •>.  v.  i  Iole.29 
Oh.  St.  126     18/6). 

What  roads   could    be   leased   under   old 

act. 

Prior   in   the   act    of    March    1  i.    188 
constructed  mad-  could  he  leased  or  pun 

under    t  his    ad  .        See    Railro 
dale  45  Oh.   St.  556    (1888 

Traffic  agreement  not  an  "  appurte- 
nance" of  the  road  so  as  to  be  included 
in  sale  by  receiver. 

Cincinnati,  etc..  R.  i:.  Co.  v.  Cincinnati, 

etc..  Ry.  Co.,  6  X.  P.  427       •  '  Dec, 

493. 


206 


Private  Corporations  in  Ohio. 


Leases,  etc.,  of  Other  Roads,   §§  3301-3303. 


When    injunction    granted    to    enforce 

traffic  agreement. 

Set'  Railroad  Co.  v.  Railroad  Co.,  1  O.  C.  C. 
100  (1885). 


Traffic  arrangement  charges. 

A  company  can  only  charge  a  reasonable 
price  for  use  of  tracks.  —  (See  Toledo,  etc.,  R. 
R.  Co.  v.  Railway  Co.,  7  N.  P.  376  (1894). 


§  3301.  ASSENT  OF  STOCKHOLDERS  —  RENT.  —  No  such  aid  shall  be  fur- 
nished, nor  any  purchase  or  lease  perfected,  until  a  meeting  of  the  stockholders  of  each 
of  the  companies  has  been  called  for  that  purpose  by  the  directors  thereof,  on  thirty 
days'  notice  to  each  stockholder,  at  such  place  and  in  such  manner  as  is  provided  for 
the  annual  meetings  of  the  companies,  and  the  holders  of  at  least  two-thirds  of  the 
stock  of  each  company,  in  person  or  by  proxy,  at  such  meeting,  assent  thereto;  and 
in  case  of  the  lease  of  any  railroad  situate  in  whole  or  in  part  within  this  state,  the 
rental  reserved  and  secured  for  the  leased  road  shall  be  equal,  at  least,  to  the  net 
earnings  of  the  same  for  the  fiscal  year  next  preceding  the  one  in  which  the  lease  is 
made.  (April  17,  1892,  79  v.  Ill;  Rev.  Stat.  1880;  April  15,  1873,  70  v.  129, 
§  24  [§  1].) 


Waiver  of  assent. 

Where  a  lease  is  made  without  the  stock- 
holders' assent,  their  acquiescence  in  the  lease 
for  a  long  period  will  be  held  to  be  a  waiver, 
of  the  requirement  of  the  statute.  —  See  St. 
Louis,  etc.,  R.  R.  Co.  v.  Terre  Haute,  etc.,  R. 
R.  Co.,  33  Fed.  440  (1888)  ;  s.  c,  145  U.  S. 
393:  Zabriskie  v.  Cleveland,  etc.,  R.  R.  Co., 
64  U.  S.  381   (1859). 

Validity   of   assent   obtained   outside   of 
meeting. 

In  construing  a  Nebraska  statiite  similar  to 
this  section  the  court  said :    "  The  stockhold- 


ers' meeting,  and  the  vote  in  such  meeting  on 
the  question  of  assenting  to  the  proposed  lease, 
are  matters  of  essence,  of  substance,  and  not 
of  mere  form,  and  their  assent  individually 
obtained  outside  of  such  meeting,  and  in  the 
absence  of  deliberation,  would  bind  no  one.  — - 
Peters  v.  Lincoln,  ate,  R.  R.  Co.,  12  Fed.  513 
(1881). 

Form  of  assent. 

The  statute  does  not  require  the  assent  to 
be  in  any  particular  form,  and  the  circum- 
stances will  be  looked  to  for  light  on  that 
question.  —  See  Humphreys  v.  St.  Louis,  etc., 
Ry.  Co.,  37  Fed.  307   (1889). 


§  3302.  RIGHTS  OF  NON-ASSENTING  STOCKHOLDERS.  —  A  stockholder  who 
refuses  his  assent  to  such  sale,  lease,  or  aid  by  subscription,  and  signifies  the  same 
by  notice,  in  writing,  to  the  purchaser  or  lessee,  within  sixty  days  thereafter,  shall 
be  entitled  to  demand  and  receive  from  such  purchaser  or  lessee,  previous  to  the  con- 
summation of  such  sale  or  lease,  the  average  market  value  of  his  stock  for  six  months 
next  preceding  the  day  of  the  meeting  of  the  companies  at  which  the  sale  or  lease  is 
approved,  on  the  surrender  of  his  stock;  and  if  the  stockholder  and  the  purchaser  or 
lessee  cannot  agree  as  to  the  value  of  the  stock,  the  parties  may  submit  the  question 
to  arbitration,  which  shall  be  conducted  in  accordance  with  the  provisions  of  law  regu- 
lating arbitrations,  so  far  as  the  same  may  be  applicable,  by  three  disinterested  per- 
sons, to  be  appointed  upon  the  motion  of  either  of  the  parties,  by  the  judge  of  the 
court  of  common  pleas  of  the  county  in  which  the  owner  of  the  stock  resides,  or,  in 
case  he  is  a  non-resident  of  the  state,  or  of  any  county  through  or  into  which  the 
road  passes,  then  in  the  county  in  which  the  principal  office  of  the  company  is  kept. 
(April  15,  1873,  70  v.  129,  §  24  [§  2].) 


Arbitration. 

See  as  to  arbitration  under  a  similar  sec- 
tion. Railway  Co.  v.  Garrett,  50  Oh.  St.  405 
(1893). 


Application     to     street     railroad     com- 
panies. 

See  §§  2505a  and  2505z. 


§  3303.  ARBITRATION.  —  If  any  such  stockholder  refuse  to  submit  the  ques- 
tion to  arbitration,  the  proper  judge  shall,  upon  the  application  of  a  director  of  either 
of  the  companies  parties  to  the  contract,  appoint  the  arbitrators,  who  shall  proceed  to 
ascertain  the  value  of  the  stock  in  the  same  manner  as  if  the  question  had  been  sub- 
mitted by  consent  of  both  parties;  and  if  the  party  owning  the  stock  refuse  to  receive 
the  amount  awarded  in  any  case,  the  company  may  deposit  the  same  with  the  clerk 
of  the  court  of  common  pleas  of  the  county  in  which  the  arbitration  is  held,  which 


RAILRO  \l>    (  lORPOB  VTIO  ■ 


207 


Leases,  etc.,  of  Other  Roads,  §8  3304   3305 


deposit  shall  operate  the  same  as  if  payment  were  made  to  the  owner  of  the  k' 
(April  15,  1873,  70  v.  129,  §  24  [§  2].) 

Railway  Co.  v.  Garrett,  50  Oh.  St.  405  (1893).    Application     to     street     railroad     ooat- 

paniea. 

Bee  I  -  2505  i  and    ! 

§  3304.  NOTICE  OF  ARBITRATION.  —  In  all  cases  of  arbitration  under  the  two 
preceding  sections,  the  party  desiring  such  arbitration  shall  give  the  opposite  .;■ 
at  least  ten  days'  notice  of  his  intention  to  apply  to  the  judge  for  the  appointment 
of  arbitrators,  which  notice  shall  be  served  in  the  same  manner  as  is  provided  for  the 
service  of  a  summons,  and  shall  specify  the  time  and  place  of  the  hearing  of  the  appli- 
cation; but  in  cases  of  non-residents  the  notice  shall  be  by  publication  for  four  con- 
secutive weeks,  in  some  newspaper  printed  in  the  county.  (April  15,  1873,  70  v.  129, 
§24  [§3].) 

Application     to     street     railroad     companies. 
See  §§  2505a  and  2505c. 

§  3305.  SECURITY  FOR  RENT  —  LIABILITIES.  —  No  company  shall  lease  its 
road,  or  any  part  thereof,  to  any  other  company,  whether  of  this  or  any  other  state, 
as  hereinbefore  provided,  unless  the  lessor  receive  full  and  adequate  security  for  the 
payment  of  the  rental  and  for  the  preservation  of  the  property  of  the  lessor,  in  as 
good  condition  as  on  entering  into  possession,  and  if  the  lessee  fail  to  pay  such  rental 
promptly  when  due,  such  lease  shall  be  void,  at  the  option  of  the  lessor;  and  the  com- 
pany to  whom  any  railroad  is  leased,  if  a  corporation  of  any  other  state,  shall  be  sub- 
ject to  all  the  restrictions,  disabilities,  and  duties  of  a  railroad  company  incorporated 
within  this  state;  and  notwithstanding  such  lease  the  corporation  of  this  state  lessor 
therein,  shall  remain  liable  as  if  it  operated  the  road  itself,  and  both  the  lessor  and 
lessee  shall  be  jointly  liable  upon  all  rights  of  action  accruing  to  any  person  for  any 
negligence  or  default  growing  out  of  the  operation  and  maintenance  of  such  railroad, 
or  in  any  wise  connected  therewith,  and  may  be  jointly  sued  in  any  of  the  courts  of 
this  state  of  proper  jurisdiction,  and  prosecuted  to  final  judgment  therein  as  in  other 
cases  of  joint  liability;  and  provided  that  service  may  be  had  upon  said  companies, 
or  either  of  them,  by  the  service  of  process  upon  any  officer  or  agent  of  either  of  said 
companies.  (April  13,  1883,  80  v.  116;  Rev.  Stat.  1880;  April  15,  1873,  70  v.  129, 
§24[§4]. 


Order       cancelling       lease  —  appeal       by 
stockholder. 

A  judgment  ordering  the  cancellation  of  a 
railroad  lease  may  be  appealed  from  by  a 
stockholder  of  the  lessor  under  §  5226  as  ;i 
person  directly  affected  thereby  when  there 
is  reason  to  believe  that  the  officers  of  the 
lessor  are  acting  in  the  interest  of  the  plain- 
tiff.—Henry  v.  Jeanes,  47  oh.  St.  116  (1890)  ; 
s.  c,  4S  Oh.  St.  443. 
Liability  of  lessor  for  acts  of  employees 

of  receiver  of  lessee. 

This  section  does  not  operate  to  give  a  right 
of  action  against  a   lessor  company  for  negli- 
gent acts  of  the  employees  of  a  receiver  who  i< 
operating  the  road  as  receiver  of  the  lessee. 
Chamberlain  v.  New  York,  etc..  R.  R.  Co.,  36 
W.   I..  B.  SI    (1890),  71    Fed.  636.     See  Cald 
well  v.  Pittsburg,  etc..  R.  R.  Co..  33  W.  L.   B. 
134   (1894). 
Liability  of  lessor  under  old  law. 

See   Cincinnati,  etc..  Ry.   Co.   v.   Sleeper.   :: 
A.  L.  R.  464    I 1*74  I. 
Liability  of  lessor  at  common  law. 

See   Fisher  v.   Baltimore,  etc.,  R.  R.  Co.,   3 
X.  I'.  283   (  1896)  :  s.  c,  6  Dec.  (37. 


Gwathney    v.    Little 
Oh.  St.  92  (1861). 


Miami    II.    R.    Co..    12 


Lessor  liable  for  fires. 

Where  damage  i-  caused  by  a  fire  originat- 
ing from  the  negligence  of  tlie  lessee,  both 
lessor  and  l(  ssee  are  liable. —  Fisher  v.  Balti- 
more, etc..  R.  R.  Co.,  3  \.  I'.  283     L89I 

!i    Dee.   117. 

Service  of  process. 

See  I  iollins  \ .  Baltimore,  etc..  i;.  i:.  I 

X.  P.  270   |  1898)  :  -.  c,  7   Dee.  44.".. 

Liability    is    joint    and    severable. 

This    section    does    not    require    both 
panies    t"   be    sued,   a-    they    are    jointly   and 

illy    liable.  —  Stoltz    v.    Baltimon  , 
l;.  R.  Co.,  7  \.   I'.   129     1-  " 
moval    to    court.    Spangler   v.    R.    K.    < 
Fed.  305  I  18 

Statute  of  limitations. 

Commencing  suil  against  one  company  will 
nol    save  the  running  of  the  statu 
the    other.  —  Stoltz    v.    P.altin  II.    V,. 

Co.,  7   N.   P.   129      1-    7 


208 


Private  Corporations  in  Ohio. 


Extension  of  Line,  Increase  of  Stock,    §§  3306-3308. 


§  3306.  EXTENSION  OF  LINE.  —  When  a  company  desires  to  extend  the  line 
of  its  road  beyond  either  of  its  previously  designated  termini,  the  president  and 
directors  of  the  company  may  submit  the  question  of  such  extension  and  change  of 
termini  to  a  meeting  of  its  stockholders,  to  be  called  for  that  purpose,  by  notice  pub- 
lished for  four  consecutive  weeks  in  some  newspaper  in  general  circulation  in  each 
county  through  or  into  which  it  passes;  and  if  the  holders  of  the  majority  of  the 
stock,  in  person  or  by  proxy,  so  determine,  the  president  and  directors,  or  a  majority 
of  them,  shall  make  a  certificate  of  the  fact,  naming  the  places  of  the  new  terminus 
or  termini  of  the  road,  and  the  county  or  counties  through  or  into  which  the  extended 
line  will  pass,  and  file  it  in  the  office  of  the  secretary  of  state,  and  such  certificate 
and  extension  shall  be  considered  and  held  to  be  a  part  of  the  original  line  of  the 
road.     (March  20,  1875,  72  v.  70,  §  2.) 


Extension  —  effect  of  mortgage. 

There  is  nothing  in  the  statute  of  Ohio  re- 
lating to  the  extension  of  lines  of  railroad 
which  has  the  effect  of  extending  a  railroad 
mortgage,  by  operation  of  law,  to  cover  after- 


acquired  property  which  would  not  be  included 
by  the  terms  of  the  mortgage,  construed  by 
the  rules  of  the  common  law.  —  Louisville 
Trust  Co.  v.  Cincinnati,  etc.,  Rv.  Co.,  91  Fed. 
699   (1897)  ;  s.  c,  10  O.  F.  D.  646. 


§   3307.     INCREASE  OF  STOCK. —  A  company  may  increase  its  capital  stock,  as 
hereinafter  provided,  whenever  in  the  opinion  of  the  directors  the  same  is  insufficient 
for  the  construction  of  its  road,  or  it  becomes  necessary  for  the  speedy  and  convenient 
transaction  of  its  business  to  construct  a  second  additional  track,  extend  its  line  or 
construct  branches  thereof,  increase  its  machinery,  rolling  stock,  depots,  or  other  fix- 
tures,  or  for  the  purpose  of  paying  any  bonds  issued  or  guaranteed  by  it,  or  for  the  j 
purchase  of  any  railroad  within  this  state  which  has  been  or  may  hereafter  be  sold  by  j 
a  judicial  order  or  decree,  or  for  completing  its  line  of  road,  or  liquidating  or  paying  j 
off  any  unfunded  or  floating  debt,  or  other  liabilities  incurred  in  the  construction  or 
equipment    of   its   road,    or   for   the   purpose   of   extending   the   same   or  constructing 
branches  as  authorized,  or  for  either  or  all  the  purposes  aforesaid.     (May  5,  1873,  70 
v.   289,  §   1;  March  29,    1875,   72  v.  91,  §    1.) 


Stock   dividends. 

Where  a  railroad,  having  power  to  increase 
its  stock,  paid  a  stock  dividend,  a  holder  of 
bonds  convertible  into  stock,  who  has  been 
paid  interest  on  the  bonds,  cannot  on  convert- 
ing his  bonds  into  stock  claim  the  stock  divi- 
dend.—Sutliff  v.  Cleveland,  etc.,  R.  R.  Co., 
24   Oh.   St.   147    (1873). 

What  is  not  an  increase. 

Where  the  authorized  stock  of  a  company 
has  not  been  subscribed,  though  the  company 
has  been  in  existence  for  some  time,  an  issue 
of  such  stock  by  the  directors  is  not  an  in- 
crease of  the  stock  so  as  to  require  the  direct- 
ors   to    oiler    the    stock    to    the    stockholders. 


—  Sims  v.   Street   R.   R.   Co..   37   Oh.   St.   556 

(1882). 

Irregularities  in   increase. 

Irregularities  in  the  proceedings  to  increase 
the  stock,  e.  g.,  that  no  notice  of  the  meet- 
ing of  stockholders  was  given,  will  not  defeat 
an  action  to  recover  on  a  subscription  for  such 
increased  stock  for  the  purpose  of  paying 
debts,  where  such  subscriber  having  knowl- 
edge of  the  facts,  acquiesced  until  the  company 
became  insolvent. —  Clarke  v.  Thomas.  34  Oh. 
St.  4(1  (1877):  Turnbull  v.  Pomerov  Salt  Co.. 
24  W.  L.  B.  133  (1890).  See  Fanners-  Loan, 
etc.,  Co.  v.  Toledo,  etc.,  Ry.  Co.,  67  Fed.  49 
(1895)  ;  s.  c,  9  O.  F.  D.  242.' 

See  generallv  §  3262  and  notes. 


§  3308.  STOCKHOLDERS'  MEETING,  NOTICE,  VOTE.—  Before  any  stock  shall 
be  issued  under  the  last  section  a  majority  of  the  directors  shall  call  a  meeting  of  the 
stockholders,  designating  distinctly  the  time,  place,  and  purpose  of  the  meeting,  and 
the  amount  of  stock  required,  which  meeting  shall  be  held  at  the  principal  busi- 
ness office  of  the  company  in  this  state,  and  notice  of  which  shall  be  given  for  at 
least  thirty  days  previous,  by  continued  publication  in  at  least  two  newspapers  pub- 
lished and  of  general  circulation  in  the  state,  and  by  a  like  notice,  mailed  thirty 
days  previous  to  the  time  named  for  the  meeting,  to  each  stockholder  whose  residence 
is  known;  and  if  at  such  meeting  the  consent  of  the  holders  of  a  majority  of  the  stock 
upon  which  they  would  be  entitled  to  vote  at  an  election  of  directors  of  the  company 


RAILRO  \I«   '  lORPOR  \  l  [(  -  209 


Common  or  Preferred  Stock  —  Bond  Issues,  gj    330 


"be  given,  the  stock  of  the  company  may  be  increased  to  such   amount    ai   may  be 
decided   necessary   or   requisite    for    the   purposes    named    In    the 
(March  14,  1876,  73  v.  25,  §  2.) 

Who  may  vote. 
Sec  §  3296. 

§   3309.     COMMON   OR   PREFERRED   STOCK;     CONDITIONS.  —  The    increased 
stock  may  be  "  common  "  or  "  preferred,"  as  shall  be  designated  in  the  call   f< 
meeting  of  the  stockholders;   if  preferred  stock  be  issued,  the  company  may  . 
to  the  holders  thereof  semi-annual  or  quarterly  dividends,  to  an  amount   aol   <  xceed- 
ing  six  per  centum  per  annum,  payable  at  its  office,  or  at  such  other  place  as  the 
directors  may  designate;    the  stock  may  be  sold  at  such  time  and  place,  eithi 
or  without  the  state,  as  may  be  deemed  advisable  and  the  proceeds  thereof  appll 
the  purposes  for  which  it  is  issued;    the  unpref erred  stock  of  the  company  shall   be 
entitled  to  dividends  only  out  of  the  surplus  of  the  profits,  after  setting  apart  a  sum 
sufficient  to  pay  the  dividends  upon  the  preferred  stock,  and  the  company  which  issues 
such  preferred  stock  shall  reserve  the  privilege  of  redeeming  and  cancelling  the  same 
at  par,  at  any  time  after  three  years  from  the  date  of  its  issue;    and  the  preferred 
stock  herein  provided  for  may  be  convertible  into  bonds  of  the  company  at  the  option 
of  the  parties.     (May  5,  1873,  70  v.  289,  §  3.) 

See  generally  §§  3235,  3263,  and  notes. 

§  3309a.  BOND  ISSUES  BY  CONSOLIDATED  AND  OTHER  COMPANIES.  — 
Any  railroad  company  now  or  hereafter  organized  under  the  laws  of  this  state. 
and  any  such  company  which  now  is  or  shall  hereafter  be  consolidated  with  other 
companies,  as  provided  in  sections  thirty-three  hundred  and  seventy-nine,  thirty-three 
hundred  and  eighty,  thirty-three  hundred  and  eighty-one  and  thirty-three  hundred 
and  eighty-two  of  the  Revised  Statutes,  may,  at  a  meeting  of  its  stockholders,  called 
as  provided  in  section  thirty-three  hundred  and  eight,  in  lieu  of  issuing  preferred 
stock  as  provided  in  section  thirty-three  hundred  and  nine,  provide  for  borrowing 
money  to  locate,  construct  and  equip  its  proposed  line  of  railway,  or  for  the  purpose  of 
leasing  or  purchasing  and  equipping  branch  or  connecting  roads  constructed  or  in  pro- 
cess of  construction,  not  exceeding  ten  miles  in  length,  or  for  redeeming  or  exchanging 
any  part  or  all  of  its  previously  issued  bonds,  or  for  funding  its  floating  debt,  or  for 
any  or  all  of  said  purposes,  in  such  an  amount  as  it  may  deem  necessary,  not  exceeding 
its  authorized  capital  stock,  but  companies  formed  by  consolidation  of  one  or  more 
companies  of  this  state  or  of  this  state  with  one  or  more  companies  of  other  states  as 
provided  in  sections  3379  and  3380,  may  issue  bonds  in  excess  of  such  capital  stock 
and  at  such  rates  of  interest  as  may  be  agreed  upon  between  the  respective  parties, 
not  exceeding  seven  per  cent,  per  annum,  payable  semi-annually  or  quarterly,  as  they 
may  direct,  and  may  execute  and  issue  securities  therefor,  and  to  secure  the  payment 
thereof  may  pledge  the  entire  property  and  net  income  of  such  company  by  mortgage 
or  otherwise,  and  any  railroad  company  formed  by  the  consolidation  of  two  or  more 
railroad  companies  existing  under  the  laws  of  this  state  or  any  railroad  company 
formed  by  the  consolidation  of  one  or  more  companies  created  by  or  existing  under  the 
laws  of  this  state  and  any  other  state  or  states,  with  a  railroad  company  or  companies 
of  this  state  or  any  other  state,  may,  from  time  to  time,  if  authorized  by  the  vote  in 
person  or  proxy  of  holders  of  two-thirds  (2-3)  of  the  full  paid-up  stock  of  such  con- 
solidated railroad  company  present  and  voting  at  meetings  of  stockholders,  called  as 
aforesaid,  issue  its  bonds,  convertible  or  otherwise,  into  stock,  bearing  a  rate  of  inter- 
est not  exceeding  six  per  centum  per  annum,  for  one  or  more  of  the  following  pur- 
poses: Paying,  redeeming  or  funding  debts  or  obligations  assumed,  incurred  or 
created  by  it  or  either  of  its  predecessors  or  constituent  companies,  compromising 
claims  made  against  it  or  either  of  its  predecessors  or  constituent  companies,  purchas- 
ing the  whole  or  any  part  of  any  railroad  held  by  it  under  lease  to.  or  operating  con- 

LAW    GOV.    PRTV.    COR.  — 14. 


210 


Private  Corporations  in  Ohio. 


Classification  of  Stock  —  Electricity,  SS  3309b-3310-l. 


tract  with  it  or  either  of  its  predecessors  or  constituent  companies  acquiring  the  whole 
or  any  part  of  the  stock  or  bonds  of  any  railroad  company  owning  a  railroad  held  by 
such  consolidated  railroad  company  under  lease  or  operating  contract,  acquiring  the 
whole  or  any  part  of  the  bonds,  notes  or  other  obligations  of  any  other  railroad  com- 
pany of  this  or  any  other  state,  the  whole  or  a  majority  of  whose  capital  stock  shall  be 
held  by  such  consolidated  railroad  company,  completing,  extending,  improving,  main- 
taining or  operating  its  road,  branches  or  lines,  held  under  lease  or  contract,  laying 
double  or  additional  track,  purchasing  rolling  stock,  building  depots,  elevators  or  shops, 
and  generally  for  any  purpose  needed  in  its  business,  and  may,  if  the  directors  shall  so 
determine,  secure  such  issue  or  issues  of  bonds  by  mortgage  or  pledge  of  any  or  all  of 
its  real  or  personal  estate  or  franchise  or  income.  Said  securities  may  be  expressed  in 
dollars  or  in  the  currency  of  the  country  where  disposed  of  and  may  be  disposed  of 
upon  such  terms  and  at  such  prices  as  may  be  agreed  upon  between  the  respective  par- 
ties not  inconsistent  with  the  laws  of  this  state.  The  proceeds  of  sale  of  such  securities 
shall  be  applied  only  as  now  required  by  law;  provided,  that  nothing  in  this  section 
or  in  the  sections  of  the  Revised  Statutes  relating  to  railroad  companies,  prior  to  sec- 
tion thirty-four  hundred  and  thirty-seven,  other  than  in  sections  thirty-two  hundred 
and  eighty-seven,  thirty-two  hundred  and  eighty-eight,  and  thirty-two  hundred  and 
eighty-nine  shall  be  construed  as  affecting  street  railroads.  (April  14,  1880,  77  v. 
206;  April  19,  1881,  78  v.  230;  March  13.  1883,  80  v.  55;  March  20,  1884,  81  v.  57: 
April  11,  1890,  87  v.  181;    March  10,  1892,  89  v.  82;   April  27,  1896,  92  v.  415.) 


Street    railroads  —  application    of    stat- 
utes. 

By    this    section    §§    3207    and    3211    and 
§   3231-1   have   no   application   to   street   rail- 


roads, but  see  §§  2505a,  2505b,  2505z.  —  Mas- 
silon  Bridge  Co.  v.  Cambria  Iron  Co.,  59  Oh. 
St.  179   (1898). 


§  3309b.  CLASSIFICATION  OF  STOCK. —  Any  railroad  company  hereafter 
formed  may,  in  its  article  of  incorporation,  provide  for  the  division  of  its  capital 
stock  into  common  stock  and  classes  of  preferred  stock  by  stating  therein  the  amount 
of  each  kind  and  class  of  stock,  the  par  value  of  the  respective  shares  thereof,  and  the 
vote  which  shares  of  each  class  shall  have.  And  it  may  further  provide  in  such 
articles,  terms  and  conditions  of  such  preferred  stock  in  addition  to  and  not  incon- 
sistent with  the  provisions  of  section  3309.     (April  2,  1891,  88  v.  267.) 

See  generally   §  3235  and  notes. 

§  3310.  FACTS  TO  BE  CERTIFIED  TO  SECRETARY  OF  STATE.— Within  ten 
days  after  such  meeting  the  president  and  secretary  of  the  company  shall  make  an 
abstract,  stating  the  whole  amount  of  pre-existing  capital  stock,  the  amount  author- 
ized, the  number  of  shares  of  stock  upon  which  all  the  installments  called  for  by  the 
board  of  directors  have  been  paid,  and  the  vote  at  the  meeting,  and  add  a  certificate 
that  the  provisions  of  the  two  preceding  sections  have  been  fully  complied  with;  and 
they  shall  make  affidavit  to  such  abstract  and  statement,  and  file  the  same  in  the 
office  of  the  secretary  of  state,  who  shall  cause  the  same  to  be  recorded.  (March  14, 
1876,  73  v.  25,  §  4.) 


§  3310-1.  ELECTRICITY  AS  MOTIVE  POWER.— Upon  any  railroad  heretofore 
or  hereafter  constructed  in  this  state,  electricity  may  be  used  as  a  motive  power  in  the 
propulsion  of  cars;  provided,  however,  that  before  any  line  of  poles  and  wires  shall 
be  constructed  through  or  along  the  streets,  alleys  or  public  grounds  of  any  municipal 
corporation,  plans  of  such  construction  shall  be  submitted  to  and  approved  by  the 
council  of  such  municipal  corporation.     (May  21,   1894,   91  v.  397.) 


Hamlet    trustees    included. 

Trustees  of  a  hamlet  are  included  in  the  word  "  council. "- 
78  (1897);  s.  c,  8  C.  D.  24. 


In    re    Newburgh,    15    0.    C.    C- 


Railroad  (  !orporai  u  i 


211 


Principal  Office  —  Liability  of  Directors,  etc.,    SS  3311   3314. 


§3311.     PRINCIPAL  OFFICE,  WHERE  ESTABLISHED.      Each  company 

as  soon  as  convenient  after  its  organization,  establish  a  principal  ral)  office 

at  some  point  on  the  line  of  its  road  (or  on  the  line  of  any  road  within  I 
which  it  connects  or  has  running  arrangements),  and  may  change  the  same  at  pleas- 
ure, and  shall  give  public  notice  of  such  establishment  or  change  in  some  newspaper 
published  on  its  line  within  this  state;  and  the  office  of  the  president,  secretary 
treasurer  of  the  company  shall  be  kept  at  such  principal  or  general  office,  or  at  some 
other  point  on  the  line  of  the  road  of  the  company  within  this  state,  and  a  record  kept 
there  of  all  the  proceedings  of  the  company,  to  be  open  at  reasonable  hours  to  the 
inspection  of  any  stockholders  of  the  company.  (April  9,  1880,  77  v.  153;  R.  S. 
1880;  May  1,   1852,  50  v.  274,   §    17.) 


Forfeiture    of    franchise    for    failure    to 
maintain  office. 

See  Simmons  v.  Norfolk,  etc.,  <  o.,  113  N.  C. 
147  (1893);  State  v.  .Milwaukee,  etc.,  R.  R. 
Co..  4.">  Wis.  579  (1878);  People  v.  Kingston 
Co..  2:}  Wend.  iX.  Y.i  193  (1840);  Stat.'  v. 
South  Pac.  Co.,  24  Tex.  80  (1859). 

Inspection  of  books. 

See    §   :',2">4  and   note-.. 


Application   of   section    to   mining    com- 
panies. 

Where  a   mining  company  has  buill   a 
road   under    §    3866,   i(    can   only   changi 
principal  office  of  it-  railroad  under  thi 
tion,   and   it-   principal    place   of  business 
only    be   changed    under 

(  oal  Co.,  1  X.  P.  115  1897)  ;  -.  c,  6  Dec.  17-: 
Snow  Fork,  etc.,  Co.  v.  Booking,  etc.,  !.'.  I;. 
Co.,  7  X.  P.  191   i  L897)  :  -.  ■-.  6  Dec.  17-. 


§  3313.  SECURITIES  SOLD  TO  DIRECTORS  UNDER  PAR,  VOID.— All  capital 
stock,  bonds,  notes,  or  other  securities  of  a  company,  purchased  of  a  company  by  a 
director  thereof,  either  directly  or  indirectly,  for  less  than  the  par  value  thereof,  shall 
be  null  and  void.     (April  27,   1872,  69  v.  173,   §  2.) 


Purchase  from  third  persons. 

The  purchase  by  a  director  of  a  corporation 
of  bonds  already  sold  in  good  faith  to  a  third 
party,  although  such  purchase  be  at  less  than 
par,  does  not  fall  within  this  section. —  Con- 
tinental Trust  Co.  v.  Toledo,  etc..  R.  R.  Co.. 
SO  Fed.  929  (1898)  ;  Toledo,  etc..  R.  R.  Co.  v. 
Continental  Trust  Co..  95  Fed.  497   (1899). 

Return  of  amount  paid. 

Where  bonds  have  been  purchased  by  a  di- 
rector for  less  than  par,  and  the  company  has 
paid  interest  regularly  for  a  long  time,  it  can- 
not repudiate  the  transaction  without  return- 
ing to  the  director  the  consideration  paid. 
—  Shoemaker  v.  Dayton,  etc.,  R.  R.  Co.,  19 
W.   L.  B.  322   (18S8). 

Mortgage  is  void. 

The  issue  and  delivery  by  a  railroad  cor- 
poration of  fifty  millions  of  dollars  of  paid-up 
stock  and  fifteen  millions  of  dollars  of  bonds 
secured  by  a'mortgage  on  the  railroad,  in  con- 
sideration of  eighteen  millions  of  dollar- 


paid    tn   the   corporation    by    a    syndicate 
which  the  directors  arc  members,  is  unlawful, 
contrary  to  public  policy  and  to  this  -• 
and  such  stocks  and  bonds  are  void,  alt] 
the  bonds   may    be  enforceable   by   bona    fide 
holders  of  t  he  same,  yel  the  morl  l- 
negotiable,  and  it  i-  void,  although  owned  by 
a  bona  fide  holder. —  Union  Trusl  < 
York,  etc.,  R.  R.  Co.,  17  W.   L.  B.  17l 

Duty     of     directors     with     reference     to 
stock. 

It   is  the  duty  of  directors  to  use  theii 
efforts    to   advance    the    value    of   tic     s1 
their  company,  to   restore,   if  lost, 
therein,  and  to  advise  holders  of  the  -' 
its  real  value:   and  no!   by  combinations 
arrangements   place   themselves   in   a    position 
of  using  their  superior  knowledge  of  its  value 
to    depress    such     value    and    purchase    large 
quantities  of  stock  at  pri 
value.      See    I  incinnati,    etc.,    I!.     K.    I 
Duckworth,   2  O.  C.   C.    518        387        -.    c,    1 
C.  D.  618. 


§  3314.  LIABILITY  OF  DIRECTORS  EOR  MISMANAGEMENT.— The  directors 
shall  be  liable  in  their  individual  capacity  to  the  stockholders  for  any  damage  sus- 
tained by  the  stockholders  by  reason  of  the  negligence,  mismanagement,  or  unfaith- 
fulness in  the  discharge  of  their  duties;  but  a  director  may  exonerate  himself  by 
entering  his  protest  upon  the  record  against  any  act  done  without  his  concurrence 
from  which  injury  is  feared,  and  forthwith  publishing  the  same  for  three  weeks  in 
some  newspaper  printed  and  of  general  circulation  in  the  county  in  which  is  the  prin- 
cipal office  of  the  company.     (May  1.  1854,  52  v.  91,  §  3.) 

See  §  3248  and  notes,  and  notice  the  liability  imposed  by  this  section  is  not  to  the  cor- 
poration, but   to   the  stockholders. 


212 


Private  Corporations  in  Ohio. 


Eligibility  to  Office  —  Bridging  Navigable  Waters,  etc.,   §§   3315-3317. 


§  3315.  CERTAIN  PERSONS  INELIGIBLE  TO  OFFICE.— No  person  who  is  a 
stockholder,  owner,  or  part  owner  of  any  express,  despatch,  fast  freight,  or  trans- 
portation company,  whether  incorporated  or  not,  which  has  for  its  object,  or  one  of  its 
objects,  the  shipment  of  freight  or  the  transportation  of  persons  over  any  railroad  in 
the  United  States,  or  who  is  in  any  way  pecuniarily  interested  in  any  company  or  part- 
nership formed  for  any  such  or  like  purpose,  shall  perform  the  duties  of,  or  be  elected 
or  appointed  to,  any  office  of  profit  or  trust  in  any  railroad  company,  or  employed  as 
freight  or  ticket  agent  thereof;  and  all  such  persons  shall  be  ineligible  to  any  such 
office  or  appointment.     (April  6,   1866,  63  v.  156,  §  1.) 

Similar  acts  in  other  states. 

See  laws  of  Pennsylvania,  Wisconsin,  and    Missouri. 

§  3316.  ACTS  OF  SUCH  DIRECTORS  VOID,  PENALTIES.—  If  any  person  be 
elected  to  an  office,  or  appointed  to  a  position,  or  perform  duties,  in  violation  of  the 
preceding  section,  all  his  official  acts  shall  be  null  and  void;  and  for  every  day  that 
he  exercises  or  attempts  to  exercise  the  functions  of  such  office  or  appointment,  he 
shall  forfeit  and  pay  the  sum  of  fifty  dollars,  to  be  recovered  at  the  suit  of  any  stock- 
holder of  the  company,  in  the  name  of  the  company,  one-half  of  which  shall  go  into 
the  treasury  of  the  company,  and  the  other  to  the  stockholder  prosecuting.  (April  6, 
1866,  63  v.   156,   §  2.) 


§  3317.  HOW  AUTHORITY  OBTAINED  TO  BRIDGE  CANALS  OR  NAVIGABLE 
WATERS.  —  When  the  line  of  the  road  of  a  company  crosses  a  canal  or  any  navigable 
water,  the  company  shall  file  with  the  board  of  public  works,  or  with  the  acting  com- 
missioner thereof  having  charge  of  the  public  works  where  such  crossing  is  proposed, 
the  plan  of  the  bridge,  and  other  fixtures  for  crossing  such  canal  or  navigable  water, 
which  shall  designate  the  place  of  crossing;  if  the  board  or  acting  commissioner 
approve  such  plan,  he  shall  notify  the  company,  in  writing,  of  such  approval;  but  if 
the  board  or  acting  commissioner  disapprove  such  plan,  or  fail  to  approve  the  same 
within  twenty  days  from  the  filing  thereof,  the  company  may  apply  to  the  court  of 
common  pleas,  or  a  judge  thereof  in  vacation,  and  upon  reasonable  notice  being  given 
to  the  members  of  the  board  of  public  works,  or  said  acting  commissioner,  the  court 
or  judge  shall,  upon  good  cause  shown,  appoint  a  competent,  disinterested  engineer, 
not  a  resident  of  any  county  through  which  the  road  passes,  to  examine  such  crossing, 
and  prescribe  the  plan  and  condition  thereof,  so  as  not  to  impede  navigation;  such 
engineer  shall,  within  twenty  days  from  his  appointment,  make  his  return  to  the 
court  of  common  pleas  of  the  county  wherein  such  crossing  is  to  be  made,  subject  to 
exception  by  either  party;  thereupon  the  court  shall,  at  the  next  term  after  the  filing 
of  the  return,  proceed  to  examine  the  return,  and  approve  and  confirm  the  same, 
unless  good  cause  be  shown  against  such  approval;  and  such  order  of  confirmation 
shall  be  sufficient  authority  for  the  erection,  use,  and  occupancy  of  such  bridge,  in 
accordance  with  such  plan;  but  no  company  shall  construct  over  any  canal  any  per- 
manent bridge  less  than  ten  feet  in  the  clear  above  the  top  water-line  of  the  canal; 
and  the  piers  and  abutments  of  such  bridge  shall  be  placed  so  as  not  in  any  manner 
to  contract  the  width  of  the  canal,  or  interfere  with  free  passage  on  the  tow-path; 
but  this  section  shall  not  be  construed  to  prevent  the  construction  or  continuance  of 
draw-bridges  which  do  not  interrupt  navigation.  (May  1,  1852,  50  v.  274,  §  20; 
50  v.  205,  §§  4,  5.) 


What  plans  cannot  be  approved. 

The  courl  has  no  power  to  approve  the  plan 
for  the  construction  of  a  bridge  when'  the 
bridge  is  to  be  Less  than  ten  feel  above  the  top 
water-line  of  the  canal,  or  where  the  piers  or 
abutments  interfere  with  navigation. — -State 
ex  rel.  v.  Railway  Co.,   37   Oh.   St.   157,   173 

'SSI  ). 


Powers  of  acting  commissioner. 

This  section  gives  the  same  power  to  the 
acting  commissioner  as  to  the  whole  board, 
consequently  they  act  independently  of  each 
other.  The  board  cannot  control,  modify  or 
reverse  a  decision  of  the  acting  commissions;. 
—  Works  v.  Junction  R.  R.  Co.,,  5  MeLain 
(U.  S.)  425  (1853)  ;  s.  c,  3  0.  F.  D.  101. 


Railroad  (  !orp< 


213 


Bridges,  etc.— When  Passenger  Trains  Must  Stop,  gg  3 


Charter   must   give   right  to   cross. 

The  right  to  cross  a  navigable  water  l>y  a 
railroad  bridge  must  be  given  bj  the  sovereign 
power,  by  special  or  genera]  act.  Where  this 
is  not  done,  neither  the  board  of  public  works 
nor  an  acting  commissioner  can  approve  the 
plan  of  a  proposed  bridge.  The  board  has  no 
power  to  granl  leave  to  cross  the  navigable 
water.  —  Works  v.  Junction  !!.  R.  Co.,  5  Mc 
Lain    (U.  S.)   425    I  1853)  ;  s.  c  3  0.  F.  I).   101. 

Jurisdiction  of  commissioner. 

"  Having  charge  of  the  public  works,  where 
such  crossing  is  proposed,"  means  that  such 
place  shall  bo  within  the  territorial  jurisdic 
tion  of  the  commissioner.  —  Works  v.  Junc- 
tion R.  K.  Co..  .->  McLain  l  U.  S.)  425  I  1853)  ; 
s.  c,  3  0.  F.  D.  101. 

What  are  navigable  waters. 

The  words  "navigable  waters"  are  used  in 
no  restricted  sense:  they  embrace  all  waters 
within  the  state,  which  are  navigable  by   the 


woi  I  -  oi  art  oi   nature.       H  oi  k«  v,  Jui 
I:,  i:.  Co.,  5  McLain  I  i  .  8.)   12 

3  o.   ]•.    I).    I  Ml. 
Power  of  congress. 

Under  i  he  pov  ei  to  i  egulate  con  i 

i  UCl  i"ii   .  I 

any  u;i\  igable  i  \\ er,  «  hich  ia  a 

e  hei  ".  een  a  nj    i  «  o  oi    mo  'I  he 

exercise  of  this  great    public  ii'_'ht    i-  not    in- 
compatible  with  the  enjoyment  of  local  ri 
The  public  right   consist  -   in  a  n   unobsl  > 
u  ie  of  a    na  \  igable  water  connect  ing   i 
inoi  e  sta  tes.    Th<    loca  I  i  ight   is  to  cross  Buch 
water.    The  genei  1 1  commei  cia  I  right   i- 
mount     to    all     Btate    aut  hoi  il 

Shore,    etc.,    Rj  .    I  0.    V.    <  >hio.    165    U.    £ 

i  1897  i  :   Works  v.  Junction  R.  R.  Co.,  5  Mc- 
Lain i  U.  S.i    125     185  ;    :  s.  e..  3  0.  i'.  D.  101. 

Remedy. 

See  as  to  quo  warranto  in  circuit  court. — 
Lake  Shore,  etc.,  Rv.  <  !o.  \ .  State,   I  Sup 
33  W.  L.  B.  169   I  1894). 


§  3318.  ESTABLISHED  BRIDGES.  —  All  railroad  bridges  erected  prior  to  May 
1,  1852,  over  any  navigable  canal,  feeder,  slack-water  improvement,  river,  stream, 
lake,  or  reservoir,  not  less  than  ten  feet  in  the  clear  above  the  top  water  line,  shall 
remain  undisturbed  by  the  board  of  public  works.     (May  1,  1852,  50  v.  205,  §  4.) 

§  3319.  ENFORCEMENT  BY  ATTORNEY-GENERAL.— If  a  company  refuse  to 
comply  with  any  of  the  provisions  of  section  thirty-three  hundred  and  seventeen  the 
attorney-general,  on  being  notified  thereof,  shall  immediately  institute  proper  legal 
proceedings,  in  the  name  of  the  state,  against  such  company,  for  the  purpose  of 
enforcing  the  provisions  thereof.     (May  1,  1852,  50  v.  205,  g  5.) 


§  3320.  PASSENGER  TRAINS  MUST  STOP  AT  CERTAIN  STATIONS.— Each 
company  shall  cause  three,  each  way,  of  its  regular  trains  carrying  passengers,  if  so 
many  are  run  daily,  Sundays  excepted,  to  stop  at  a  station,  city,  or  village,  containing 
over  three  thousand  inhabitants,  for  a  time  sufficient  to  receive  and  let  off  passengers; 
if  a  company,  or  any  agent  or  employe  thereof,  violate,  or  cause  or  permit  to  be  vio- 
lated, this  provision,  such  company,  agent,  or  employe  shall  be  liable  to  a  forfeiture 
of  not  more  than  one  hundred  nor  less  than  twenty-five  dollars,  to  be  recovered  in  an 
action  in  the  name  of  the  state,  upon  the  complaint  of  any  person,  before  a  justice  of 
the  peace  of  the  county  in  which  the  violation  occurs,  for  the  benefit  of  the  general 
fund  of  the  county;  and  in  all  cases  in  which  a  forfeiture  occurs  under  the  provisions 
of  this  section,  the  company  whose  agent  or  employe  caused  or  permitted  such  viola- 
tion shall  be  liable  for  the  amount  of  the  forfeiture,  and  the  conductor  in  charge  of 
such  train  shall  be  held,  prima  faeie,  to  have  caused  the  violation.  (April  13,  1889. 
86  v.  291;  April  13,   1867,  64  v.   142,   §  26.) 


Power  of  company  to  maise  regulations. 

In  the  absence  of  statutory  provision  to  the 
contrary,  a  railroad  company  may  adopt  a 
regulation  that  a  certain  train  or  trains  of 
passenger  cars  running  regularly  on  it-  road 
shall  not  stop  at  designated  stations  or  places; 
and  one  traveling  as  a  passenger  on  such  road 
is  bound  to  inquire  whether  the  train  upon 
which  he  takes  passage  stops  at  the  -tat  ion  or 
place  to  which  he  is  going.  A  passenger  who 
is  on  a  train  not  stopping  at  the  station  he 
desires  may  be  put  oil'  if  he  is  unwilling  to 
pay  the  regular  fare  to  a  station  at  which  the 


train  docs  3top.— Pennsylvania  Co.  v.  Went/ 
37  Oh.  St.  333  l  1881  I. 

Regulations   subject  to  statutes. 

The  power  of  a   railway  company   to 
and    enforce    regulations    that     certain    trains 
shall   not   stop  at   all   place-  i-  subji 
lative   control,   and    by   this   section    i-    taken 
away  as  to  cities  of  three  thousand   in 
ants.      Pennsylvania  Co.  v.  Wentz,  :;:  <  >h.  St. 
333   (1881). 

Where    the    laws    make    provision    for    the 
stopping  of  trains  at  certain  places,  all  t 


214 


Private  Corporations  in  Ohio. 


Taxes,  Time   of  Trains,  Waiting  Rooms, 


3321-3321-3. 


and  contracts  must  be  construed  with  refer- 
ence to  such  laws,  and  a  contract  recognizing 
the  validity  of  a  regulation  disregarding  such 
laws  is  invalid.  —  Pennsylvania  Co.  v.  Wentz, 
37  Oh.  St.  333  (1881). 

Constitutionality. 

This  section  is  a  valid  exercise  of  the  police 
power  of  the  state,  and  does  not  violate  the 
interstate  commerce  clause  of  the  constitution 
of  the  United  States,  and  is  valid  until  con- 
gress  passes   an   act   inconsistent   with    it.  — 


Lake  Shore,  etc.,  Ry.  Co.  v.  State  ex  rel.  Law- 
rence, 8  0.  C.  C.  Rep.  220  (1894)  ;  s.  c,  4  C. 
D.  406;  s.  c,  37  W.  L.  B.  196;  Lake  Shore, 
etc.,  Ry.  Co.  v.  State  ex  rel.  Lawrence,  173  U. 

S.  285  "(1899). 

Not  conflicting  with   federal  statutes. 

This  section  is  not  inconsistent  with  §  5258, 
Rev.  Stat.  U.  S.  —  Lake  Shore,  etc.,  Ry.  Co.  v. 
State  ex  rel.  Lawrence,  8  O.  C.  C.  220  (1894)  ; 
s.  c,  4  C.  D.  406. 


§  3321.  TAXES  ON  LAND  OCCUPIED  AS  RIGHT  OF  WAY.  —  Each  company 
owning  and  occupying  any  right  of  way  or  easement  in  lands,  either  by  agreement 
with  the  owners,  or  by  virtue  of  any  appropriation  proceeding,  shall  present  to  the 
auditor  of  the  county  in  which  such  land  is  situate  a  statement  of  the  quantity  of 
land  embraced  within  such  right  of  way  or  easement,  and  such  quantity  shall  be 
deducted  by  the  auditor  from  the  land  on  the  tax  duplicate,  so  that  the  owners  thereof 
shall  not  be  required  to  pay  taxes  thereon;  a  company  hereafter  becoming  the  owner 
and  occupant  of  any  such  right  of  way  or  easement  shall,  within  six  months  there- 
after, present  such  statement  to  the  auditor;  and  upon  the  failure  of  the  company  to 
make  such  statement,  the  owner  of  the  land  may  make  the  same.  (March  23,  1875, 
72  v.  71,  §  8.) 

§3321-1.  §  1.  POSTING  TIME  OF  ARRIVAL  OF  TRAINS.  —  Every  company 
or  person  operating  a  railroad  within  this  state,  shall  immediately  after  the  taking 
effect  of  this  act,  cause  to  be  placed  in  a  conspicuous  place  in  each  passenger  depot 
of  such  company,  located  at  any  station  in  this  state  at  which  there  is  a  telegraph 
office,  a  blackboard,  at  least  four  feet  in  length  and  two  feet  in  width,  upon  which 
board  such  company  or  person  shall  cause  to  be  written,  at  least  ten  minutes  before 
the  schedule  time  for  the  arrival  of  each  passenger  train  stopping  regularly  upon 
such  road  at  such  station,  the  fact  whether  such  train  is  on  schedule  time  or  not,  and 
if  late,  how  much.     (May  8,  1886,  83  v.  118.) 


Constitutionality. 

The  discrimination  in  this  section  between 
stations    having    telegraph    offices    and    those 


without  such  offices  does  not  render  the  section 
unconstitutional.  —  Pennsylvania  Co.  v.  State, 
142  Ind.  428   (1895). 


§  3321-2.  §  2.  PENALTIES  FOR  VIOLATION.  —  That  for  each  violation  of  the 
provisions  of  this  act,  such  company  or  person  so  neglecting  or  refusing  to  comply 
with  the  provisions  of  this  act,  shall  forfeit  and  pay  the  sum  of  ten  dollars  ($10,00) 
to  be  recovered  in  a  civil  action  in  the  name  of  the  state  of  Ohio,  one-half  of  which 
shall  go  to  the  party  commencing  proceedings,  and  the  remainder  shall  be  paid  over 
to  the  treasurer  of  the  township,  village  or  city  in  which  such  proceedings  are  had. 
(May  8,  1886,  83  v.  118.) 


No  penalty  for  each  failure  to  post. 

This  section  does  not  provide  a  penalty  for 
the  refusal  or  neglect  to  comply  with  any  of 
its  provisions,  as,  for  instance,  the  refusal  to 
schedule  the  train,  etc.,  but  for  the  refusal  or 
neglect  to  comply  with  the  entire  provisions 
of  the  act.  or  each  violation  of  the  entire  pro- 
visions of  the  section.  A  failure  to  erect  a 
blackboard  at  a  proper  station  is  a  violation 
of  the  section.  A  penalty  of  ten  dollars  only 
can  be  recovered  for  failure  to  provide  a  black- 
board, or  to  register  the  arrival  of  trains  at  a 


station,  within  the  terms  of  the  section,  with- 
out any  reference  to  the  violation  of  each  or 
any  of  the  separate  provisions  of  the  section. 
—  State  ex  rel.  McClurg  v.  Railroad  Co.,  8  O. 
C.  C.  604  (1894)  ;  s.  c,  4  C.  D.  372. 

Jurisdiction. 

The  action  to  recover  a  penalty  under  this 
section  can  only  be  brought  before  a  justice  of 
the  peace  or  a  mavor.  —  State  ex  rel.  McClurg 
v.  Railroad  Co.,  8  O.  C.  C.  604  (1894)  ;  s.  c, 
4  C.  D.  372. 


§  3321-3.  §  1.  WAITING  ROOMS  AT  RAILROAD  STATIONS,  —  That  every 
person,  firm  or  corporation  operating  a  steam  railroad  wholly,  or  in  part,  within  the 
state  of  Ohio,  be  required  to  provide  a  suitable  waiting  room  at  each  station  where 


Railroad  Corporations.  215 

Waiting  Rooms;   Right  of  Way;  Road  Crossings,  SS  3321-4  3323. 


passenger  trains  or  any  of  them,  of  such  road,  are  regularly  scheduled  to  stop,  for 
the  use  of  the  traveling  public.  Said  waiting  rooms  to  be  maintained  and  kept  as  to 
be  conducive  to  the  health  and  comfort  of  the  patrons  of  such  railroad.  (April  16, 
1900,  94  v.  231.) 

§  3321-4.  §  2.  DUTY  OF  COMMISSIONER  OF  RAILROADS  —  Upon  the  writ- 
ten complaint  of  ten  or  more  citizens  of  the  state  of  Ohio  being  filed  with  the  said 
commissioner  that  any  of  the  provisions  of  this  act  are  being  violated,  at  such  sta- 
tion, the  said  commissioner  shall  forthwith  make  investigation  of  the  same;  and  if 
upon  such  investigation  it  be  found  that  such  violation  exists,  he  shall  issue  an  order 
to  the  person,  firm  or  corporation  guilty  of  such  violation,  setting  forth  the  nature  of 
the  improvement  required  and  directing  that  the  same  be  completed  within  a  time 
to  be  specified  therein.     (April  16,  1900,  94  v.  231.) 

§  3321-5.  §  3.  PENALTY  AND  ENFORCEMENT.—  Any  person,  firm  or  cor- 
poration failing  to  comply  with  an  order  of  said  commissioner,  or  any  of  the  provi- 
sions of  this  act,  shall,  upon  conviction  therefor  before  a  court  of  common  pleas  of  the 
county  in  which  such  violation  shall  occur,  forfeit  and  pay  any  sum  not  less  than 
one  hundred  dollars.  Such  forfeiture  or  penalty  to  be  recovered  in  a  civil  action  in 
the  name  of  the  state  of  Ohio,  for  the  benefit  of  the  county  in  which  such  failure  or 
violation  shall  occur;  such  action  to  be  brought  by  the  prosecuting  attorney  of  the 
county  in  which  the  violation  of  this  act  occurs,  at  the  instance  of  the  commissioner 
of  railroads  and  telegraphs,  as  provided  in  other  cases  for  the  recovery  of  penalties 
and  forfeitures  against  railroad  companies.  Said  prosecuting  attorney  shall  receive, 
for  his  services  ten  per  cent,  of  all  fines  and  costs  recovered  under  the  provisions  of 
this  act.     (April   16,   1900,  94  v.  231.) 

§  3322.  RIGHT  OF  WAY  PAPERS  TO  BE  RECORDED.—  When  the  grant  of 
such  right  of  way  or  easement  is  not  in  the  form  of  a  lawfully  executed  deed  or  lease, 
the  recorder  of  the  county  where  the  land  is  situate  shall,  upon  the  request  of  the 
company  owning  such  right  of  way  or  easement,  record  such  grant  in  the  record  book 
of  leases,  and  index  the  same;  and  such  record,  or  a  copy  thereof  duly  certified  by 
the  recorder,  shall  be  received  in  evidence  in  all  courts  and  places,  in  the  same  manner 
and  to  the  same  effect  as  the  original;  but  the  correctness  of  such  record  or  copy  may 
be  impeached  by  any  interested  party,  by  competent  proof;  and  the  recorder  shall  be 
entitled  to  the  usual  fee  for  recording  such  grants,  and  certifying  copies  thereof. 
(March  23,  1875,  72  v.  71,  §  8.) 

§  3322a.  TAXATION  OF  RIGHT  OF  WAY.—  Any  company  using  or  occupying 
any  land  as  a  right  of  way,  without  paper  title  or  contract  of  record  therefor,  shall 
within  six  months  after  the  passage  of  this  act  present  a  correct  survey  and  plat  of 
such  land,  exhibiting  the  quantity  in  such  right  of  way  taken  from  the  lands  of 
an  owner  abutting  on  such  right  of  way,  as  it  then  stands  on  the  tax  duplicate  of  such 
county,  to  the  auditor  of  the  county  in  which  such  land  is  situate,  who  shall  charge 
such  land  on  his  duplicate  to  such  company,  so  used  or  occupied  by  any  such  com- 
pany and  such  relative  quantity  shall  be  deducted  by  the  auditor  from  the  land  on 
the  tax  duplicate,  so  that  the  abutting  owners  thereof  shall  not  be  required  to  pay 
the  taxes  thereon;  and  all  costs  of  such  survey,  plat  and  transfer  shall  be  paid  by 
the  company.  Upon  the  failure  of  any  company  to  have  made  such  survey  plat  and 
transfer  the  owner  or  owners  of  such  abutting  land  may  have  the  same  made 
recover  the  costs  thereof  in  an  action  against  such  company  before  any  court  having 
jurisdiction  thereof.     (April  1,  1902,  95  v.  73.) 

§  3323      MUST    ERECT    SIGN-BOARDS    AT    ROAD    CROSSINGS-  Each    com- 
pany shall  erect,  at  all  points  where  its  road  crosses  a  public  road,  at  a  sufficient  eleva- 


216 


Private  Corporations  in  Ohio. 


Fences,  Crossings,  Cattle-guards,   etc,   §  3324. 


tion  from  such  public  road  to  admit  of  the  free  passage  of  vehicles  of  every  kind,  a 
sign,  with  large  and  distinct  letters  placed  thereon,  to  give  notice  of  the  proximity 
of  the  railroad,  and  warn  persons  to  be  on  the  look-out  for  the  locomotive;  and  a  com- 
pany which  neglects  or  refuses  to  comply  with  this  provision  shall  be  liable  in  dam- 
ages for  all  injuries  which  occur  to  persons  or  property  from  such  neglect  or  refusal. 
(May  1.   1852.   50  v.  274,  §  18.) 


■When  evidence  as  to  sign-board  admis- 
sible. 

In  an  action  by  a  traveler  on  a  public  high- 
way against  a  railroad  company,  to  recover 
for  injuries  by  collision  with  a  passing  train 
at  a  public  crossing,  alleged  to  have  been 
caused  by  negligence  in  the  management  of 
the  train,  where  the  evidence  tends  to  show 
that  he  did  not  exercise  proper  care  and  cau- 
tion to  avoid  the  injury,  it  is  competent  for 
him  to  show  that  there  was  no  sign-board  up, 
as  required  by  law.  as  reflecting  upon  the 
question  of  his  want  of  care,  although  the 
want  of  such  sign-board  is  not  alleged  as  a 
ground  of  recovery. —  Baltimore,  etc.,  R.  R. 
Co.  v.  Whitacre,  35  Oh.  St,  627   (1880). 

Sanie  subject. 

Unless  it  is  averred  as  a  ground  of  negli- 
gence that  a  sign  was  omitted,  he  cannot  in- 
sist upon  it  as  a  substantive  cause  of  action. 


If  a  party  is  acquainted  with  the  crossing  the 
absence  of  the  warning  post  is  not  available 
as  a  proof  of  negligence. — New  York,  etc.,  R. 
R.  Co.  v.  Kistler,  16  0.  C.  C.  316  (1894); 
s.  c.  9  C.  D.  277;  C.  C.  &  I.  Rv.  Co.  v.  Reiss, 
13  0.  C.  C.  405  (1889)  ;  s.  c,  7  C.  D.  450.  See 
Baltimore,  etc..  R.  R.  Co.  v.  Whitacre,  35  Oh. 
St.  627  (1880);  Lang  v.  Holiday,  etc.,  Mining 
Co.,  49  la.  469   (1878). 

Liability  imposed. 

A  violation  of  this  section  does  not  render 
the  company  absolute.lv  liable  for  injuries  to 
persons  or  property  while  attempting  to  cross 
the  track.  Evidence  of  such  omission  mere'y 
establishes  the  negligence  of  the  company, 
and  if  it  appear  that  the  plaintiff's  negligence 
contributed  to  the  injury,  he  cannot  recover. 
Dodge  v.  Burlington,'  etc.,  R.  R.  Co.,  34  la. 
276  (1872). 


§  3324.  FENCES  ALONG  TRACKS,  CROSSINGS,  CATTLE-GUARDS,  CON- 
STRUCTION BY  LANDOWNERS  AT  EXPENSE  OF  COMPANY.—  A  company  or 
person  having  control  or  management  of  a  railroad  shall  construct,  or  cause  to  be 
constructed,  and  maintain  in  good  repair  on  each  side  of  such  road,  along  the  line 
of  the  lands  of  the  company  owning  or  operating  the  same,  a  fence  sufficient  to  turn 
stock;  and  when  such  fence  is  constructed  out  of  barbed  wire,  or  separate  lateral 
strands  not  connected  by  interwoven  wire,  or  cross  perpendicular  wire  not  more 
than  fifteen  inches  apart,  there  shall  be  securely  fastened  to  the  posts,  at  the  top  of 
the  same,  at  right  angles  thereto,  at  least  one  board,  not  less  than  one  and  one-eighth 
inches  thick  and  five  inches  wide,  and  extending  the  entire  length  thereof;  and 
before  operating  such  road  shall  cause  to  be  maintained  at  every  point  where  any 
public  road,  street,  lane  or  highway  used  by  the  public,  crosses  such  railroad,  safe 
and  sufficient  crossings,  and  on  each  side  of  such  crossings  cattle-guards  sufficient  to 
prevent  domestic  animals  from  going  upon  such  railroad;  and  such  company  or  per- 
son shall  be  liable  for  all  damages  sustained  in  person  or  property  in  any  manner  by 
reason  of  the  want  or  insufficiency  of  any  such  fence,  crossing  or  cattle-guard,  or  any 
neglect  or  carelessness  in  the  construction  thereof,  or  in  keeping  the  same  in  repair. 
That  provided,  where  any  road  now  in  process  of  construction,  or  any  proposed  road, 
passes  through  any  inclosed  land,  that  the  company  or  person  having  control  of  any 
such  road  shall,  during  the  construction  of  the  same,  provide  suitable  crossings  for 
the  owner  or  occupant  of  each  farm,  and  make  and  keep  in  repair  fences  along  the  line 
of  such  road  through  such  inclosed  fields,  and  protect  any  crops  growing  thereon; 
and  further  provided,  that  where  the  company  or  person  agrees,  with  the  owner  of 
the  lands  through  which  any  railroad  passes,  that  said  owner  shall  build  and  keep 
in  repair  any  portion  of  the  fencing,  and  should  said  fencing  be  destroyed  or  damaged 
by  fire  from  passing  trains,  said  company  or  person  owning  or  operating  such  road 
shall  rebuild  or  repair  said  fence,  provided  the  property-holder  should  demand  it; 
and  provided,  that  if  any  railroad  company  shall  fail  or  refuse  to  construct  any  fence 
in  the  manner  hereinbefore  provided,  within  six  months  after  the  passage  of  this 
act,  and  after  having  received  written  notice  so  to  do  from  the  owner  or  occupant  of 
any  lands  through  which  the  road  may  pass,  (that)  then  said  owner  or  occupant  may, 


I\.\l  LROAD    (   ORPOR  Ml" 


217 


Fences,  Crossings,   Cattle-guards,    et< 


after  thirty  days  from  the  time  of  serving  such  notice  upon  the  agent  of  :-w  h  com] 
nearest  said  lands,  proceed  to  construct  the  same,  and  the  company 
such  person  for  the  cost  thereof.     This  act  shall  apply  to  all  fences  now  built,  us  well 
as  those  hereafter  constructed.     (April  18,  1874,  71  v.  85,   g   1 ;  R.  S.   1880;  AprU 
1887,  78  v.  199;  April  8,  1891,  88  v.  295;  May  18,  1894,  01   v.  2 


Construction  of  section. 

This  section  is  to  Vie  reasonably  construed, 
and  where  damage  results  from  defects  (oc 
curring  without  the  faull  or  neglecl  of  such 
companies)  in  an  otherwise  sufficient  fence, 
there  is  no  liability.— Railroad  Co.  \.  Schultz, 
43  Oli.   St.  270   (1885). 

Constitutionality. 

This  section  is  constitutional,  founded  in  a 
sound  public  .policy,  and  equally  obligatory  on 
railroad  companies  whether  organized  under 
charters  granted  prior  or  laws  enacted  since 
the  constitution  of  1851  went  into  effect. 
Railroad  Co.  v.  Infirmary,  32  Oh.  St.  566,  570 
(1877). 

No  duty  to  fence  at   common  law. 

See  Seymour  v.  Railway  Co..  44  Oh.  St.  12, 
19  (1880):  Kerwhacker  v.  Cleveland,  etc..  R. 
R.  Co.,  3  Oh.  St.  172   (1854). 

Duty  to  public. 

The  obligation  to  construct  and  maintain 
fences  upon  both  sides  of  railroads,  imposed 
by  this  act,  is  not  limited  to  owner-  and  occu- 
piers of  adjoining  lands,  but  extends  to  the 
public  generally. —  Marietta,  etc..  R.  II.  Co.  v. 
Stephenson,  24  Oh.  St.  4s  (1873);  Railway 
Co.  v.  Allen,  40  Oh.  St.  206  (1883);  Gill  v. 
Atlantic,  etc.  Ry.  Co..  27  Oh.  St.  240  (1875;  : 
Railroad  Co.  v.  Scudder,  40  Oh.  St.  173,  17-") 
(1883). 

Company    cannot    relieve    itself    of    its 
duty  and  shift  duty  to  contractor. 

The  duty  of  a  railroad  company  is  not  dis- 
charged by  contracting  with  another  party  to 
perform  it,  when  the  performance  itself  is  in- 
sufficient.—Gill  v.  Atlantic,  etc.,  Ry.  Co..  27 
Oh.  St.  240  (1875);  Railway  Co.  v.  Allen.  4<i 
Oh.  St.  200  (1883). 

Duty  to  fence  as  to  persons. 

If  a  track  is  not  inclosed  by  a  fence  and 
proper  guard,  a  higher  degree  of  care  is  im- 
posed upon  the  company  for  the  protection  of 
children  than  otherwise  would  he  required. 
Devereaux  v.  Thornton,  4  W.  L.  I'-.  355 
(1879)  :  s.  c,  2  Cleve.  L.  Rep.  177;  10  W.  L.  B. 
266. 

Fence  across  private  roads. 

Where  a  private  road  extends  across  the 
track  and  right  of  way  of  a  railroad  company 
and  connects  with  a  public  highway,  the  com- 
pany is  required  to  maintain  across  such  pri- 
vate load  suitable  fences,  or  provide  other 
protection  against  injuries  which  may  result 
from  animals  passing  from  such  highway 
through   the    private    road    on    or    along    the 


railroad    I  racl        Ra  ill  oad  I  o.        '  unnington, 

:;'.i  nh.  St.  327   I  i 

Effect    of    repairs    by    company    ulnn    it 
is  landowner's  duty  to  repair. 
I  )■  i  asiona  I   repairs   bj   a  company  to  f< 
w  hich  by  cont  ia  t  it  was  the  dutj  ot  I 
ow  imt   to   repair,   does   not    release   the   land- 
owner from   his  duty  to  maintain  and  n 
-  Railway   '  o.    v.    Beisl  >h.    St.   066 

L883). 

Railroads    must    have     separate    inclos- 

urcs. 

Enclosures  of   railroad-  under  this  act    must 
be  separate  and   distinct    from   the   inclosures 
of  adjoining   proprietors.      Marietta,   eti 
R.  I  o.  v.  Stephenson,  2t  Oh.  : 

Fences  in  towns. 

This   section    requires   the  construction   and 
maintena  nee    oi    fen  'es    w  it  bin    i  be    limit 
cities  and  villages  where  thej   do  not  obstruct 
streets,   highways   or   other   public  grounds. 
Cleveland,   etc.,    R.    R.    Co,    \.    McConnell,    26 
Oh.  St.  57  (1875). 

Joint    liability    of    roads    running    over 

same  track. 

See  Berchold  v.  Lake  shore,  etc.,  R.  l: 
1  Cleve.  L.   Hep.  31  1    I  L878). 

Statute  of  limitations. 

\n  action  against  a  railroad  company  to  re- 
cover damages  for  killing  or  injuring  a 
UK-tic  animal  which  had  strayed  upon  its 
tracks,  and  was  killed  or  injured  without 
fault  or  negligence  of  the  railroad  company 
in  operating  its  train,  but  solely  by  the 
neglect  to  fence  the  road  as  required  by  law, 
is  founded  upon  "a  liability  created  by  stat- 
ute, other  than  a  forfeiture  or  penalty."  and 
is  haried  in  -i\  years.  Seymour  \.  Railway 
Co.,  44  Oh.  St.   12   (18S 

Pleading. 

The  facts  upon   which    the  company's  liabil- 
ity  depends   must    be   stated   in   the   petition, 
and.  if  not  admitted,  must  be  established  by 
proof.     An  allegation  that  the  defendant  was, 
by    law,   hound    t . >   fence  and  inclose  its 
road,  lender-   an  immaterial    issue,  and 
in   be    taken    :i-   true   because    not 
Baltimore,  etc.,  R.  R.  I  'o.  v.  Wilson,  31  I  i 
555   (1877). 

Negligence   must  be  proved. 

In  an  action  against  a  railroad  company  to 
recover  damages  for  killing  live  stock,  the 
plaintiff  must  prove  affirmatively  that  want 
of  ordinary  care  on  the  part  of  the  company 


218 


Private  Corporations  in  Ohio. 


Fences,  Crossings,   Cattle-guards,   etc,   §  3324. 


or  its  employees  caused  the  injury.  Such  ref- 
erence does  not  arise  from  the  mere  fact  that 
the  animal  was  killed.— Railroad  Co.  v.  Mc- 
Millan, '57  Oh.  St.  554  (1882);  Railway  Co.  v. 
EeiskeU  38  Oh.  St.  606  (1883);  Bellefon- 
taine.  etc.,  R.  R.  Co.  v.  Bailey,  11  Oh.  St.  333 
(1860). 

Tacts  justifying  verdict. 

The  fact  that  an  insufficient  fence  has  for 
several  weeks  been  maintained  by  a  railroad 
company  along  its  right  of  way  is  sufficient  to 
justify  a  jury  in  finding  it  guilty  of  negli- 
gence": and  the  fact  that  the  plaintiff's  stock 
had.  during  all  such  time,  been  kept  in  a  field 
adjoining  the  right  of  way,  without  escaping 
through  such  fence  and  passing  upon  the  rail- 
road track,  is  not  sufficient  to  excuse  the  com- 
pany from  such  neglect.  Where  the  immedi- 
ate "means  or  cause  of  such  stock  passing  over 
such  fence  and  upon  the  railroad  track  is  that, 
recently  prior  thereto,  a  board  or  rail  had 
become*  detached  and  fallen  from  the  fence, 
without  the  knowledge  of  the  company,  such 
company  is  not  excused  from  liability  where 
there  is* evidence  to  justify  the  jury  in  finding 
that  such  special  defect  was  attributable  to 
the  generallv  defective  condition  of  the  fence. 
—  Railroad  '  Co.  v.  Schultz,  43  Oh.  St.  270 
(1885). 

Expert  testimony. 

Where  one  of  the  issues  in  an  action  is 
whether  a  fence  is  sufficient  to  turn  stock,  it 
is  error  to  permit  witnesses,  who  show  no 
other  qualifications  than  that  they  had  seen 
the  fence,  to  give  to  the  jury  their  opinions  as 
to  the  sufficiency  of  the  fence  to  turn  stock. — 
Railroad  Co.  v.  Schultz,  43  Oh.  St.  270  (1885). 

Expert  testimony. 

An  expert  may  testify  whether,  in  view  of 
the  distance  between  the  cattle  and  the  en- 
gine, it  was  possible  to  avoid  injury. —  Belle- 
fontaine,  etc.,  R.  R.  Co.  v.  Bailey,  11  Oh.  St. 

333   (1860). 

Cattle     running     at     large     on     track  — 
duty  of  company. 

'If  the  owners  of  cattle  permit  them  to  run 
at  large  in  the  vicinity  of  an  uninclosed  rail- 
road track,  and  do  not  choose  to  avoid  danger 
to  their  cattle  by  keeping  them  within  their 
own  inclosures,  they  can  ask  no  more  than 
that  the  agents  of  the  railroad  company,  in 
the  legitimate  conduct  of  its  business,  running 
it>  trains  with  a  speed  regulated  by  the  grade 
of  it-  road,  the  capacity  of  its  locomotive 
power,  and  the  safety  of  persons  and  property 
carried,  -hall,  with  due  regard  to  the  safety  of 
persons  and  property  in  their  charge,  being 
the  paramount  consideration,  exercise,  what, 
"•  in  thai  peculiar  business."  would  be  ordinary 
and  reasonable  care  to  avoid  unnecessary  in- 
jury to  animals  casually  coming  upon  their 
uninclosed  railroad.  The  company  is  not 
bound  to  lake  into  consideration  the  possibil- 
ity   of    cattle   being    on   the    track. —  Central 


Ohio  R.  R.  Co.  v.  Lawrence,  13  Oh.  St.  66 
(1861);  Cleveland,  etc.,  R.  R.  Co.  v.  Elliott, 
4  Oh.  St.  474  (1855);  Kerwhacker  v.  Cleve- 
land, etc.,  R.  R.  Co.,  3  Oh.  St.  172  (1854); 
Bellefontaine.  etc..  R.  R.  Co.  v.  Schruvhart,  10 
Oh.  St.  116  (1859);  Bellefontaine,  etc.,  Co.  v. 
Bailey,  11  Oh.  St.  333  (1860);  Didman  v. 
Michigan,  etc.,  R.  R.  Co.,  31  W.  L.  B.  240 
(1894);  Cranston  v.  Cincinnati,  etc.,  R.  R. 
Co.,   1   Handy,    193    (1854). 

Cattle   running   at   large  —  contributory 
negligence. 

Suffering  domestic  animals  to  run  at  large, 
by  means  whereof  they  stray  upon  an  unin- 
closed railway  track,  where  they  are  killed  by 
a  train,  is  not,  in  general,  a  proximate  cause 
of  the  loss,  and  hence,  although  there  may 
have  been  some  negligence  in  the  owner's  per- 
mitting the  animals  to  go  at  large,  such  negli- 
gence being  only  a  remote  cause  of  the  loss,  it 
will  not  prevent  his  recovering  from  the  com- 
pany, if  the  immediate  cause  of  their  death 
was  negligence  of  the  company's  servants  in 
conducting  the  train. —  Cleveland,  etc.,  R.  R. 
Co.  v.  Elliott,  4  Oh.  St.  474  (1855). 

Cattle  at  large  on  track  —  presumption. 

The  mere  fact  that  cattle  have  strayed,  with- 
out right,  on  the  track  of  a  railroad,  neither 
establishes  that  character  of  negligence  which 
precludes  a  claim  for  injury  done  by  running 
the  locomotive  against  them,  nor  justifies  a 
want  of  proper  care  to  save  and  preserve  them 
from  destruction. —  Cranston  v.  Cincinnati, 
etc.,  R.  R.  Co.,  1  Handy,  193   (1854). 

Cattle  running  at  large. 

In  an  action  under  this  section,  it  is  a  suffi- 
cient answer  to  allege  that  the  plaintiff  did 
not  live  along  the  line  of  the  railway,  nor 
were  his  cattle  grazing  in  any  inclosed  field 
adjacent  thereto.  That  said  plaintiff  know- 
ingly, willfully  and  unlawfully  permitted  his 
cattle  to  run  at  large  on  the  highways  and 
uninclosed  lands  adjacent  to  defendant's  said 
railroad,  whereby  said  cattle  went  upon  said 
road  and  were  accidentally  killed. —  Pittsburg, 
etc.,  Ry.  Co.  v.  Methaven,  21  Oh.  St.  586 
(1871)."  See  Railway  Co.  v.  Wood,  47  Oh. 
St.  431,  436   (1890). 

Cattle  running  at  large. 

Where  cattle  are  running  at  large  without 
the  fault  of  the  owner,  he  is  not  guilty  of 
contributory  negligence  in  case  they  are  in- 
jured.—  Marietta,  etc.,  R.  R.  Co.  v.  Stephen- 
son, 24  Oh.  St. '48   (1873). 

Duty  of  company  —  animals  on  track. 

Where  domestic  animals  are  injured  by  a 
railroad  train  while  trespassing  upon  the 
track  of  the  company,  and  the  owner  of  the 
animals  is  free  from  negligence  contributing 
to  their  injury,  the  company  will  be  liable  for 
a  failure  on  the  part  of  those  operating  the 
train  to  exercise  ordinary  care  to  avoid  in- 
jury.— Lake  Erie,  etc.,  R.  R.  Co.  v.  Weisel,  55 


Railroad  Corpora  i  [on  -. 


219 


Fences,  Crossings,   Cattle-guards,  etc.,    8   3324. 


Oh.  St.  155  (1890);  Cincinnati,  etc.,  R.  R.  I  o 
v.  Smith,  22  Oh.  St.  227  (1871);  Lake  Shore, 
etc.,  Ry.  Co.  v.  Slater,  24  \V.  L.  B.  2   i  L890). 

Same  subject  —  road  unfenced. 

If  the  road  is  properly  fenced  the  company 
is  held  to  the  exercise  of  ordinary  care  only 
in  the  running  of  trains  to  prevent  the  killing 
of  animals.  Where  the  road  is  not  properly 
fenced,  a  higher  degree  of  care  is  required. 
Gill  v.  Atlantic,  etc.,  Hv.  Co.,  27  Oh.  St.  240 
(1875). 

Same     subject  —  plaintiff     negligent     in 
failing  to  build  fences. 

Where  the  owner  of  land  through  which  a 
railroad  runs  agrees*with  the  railroad  com 
pany,  for  a  valuable  consideration,  to  build 
and  keep  up  good  and  sufficient  fences,  and 
fails  to  do  so,  and  on  account  of  the  insuffi- 
ciency of  such  fences  his  animals  stray  upon 
the  track  and  are  injured,  he  is  not  entitled 
to  recover  for  such  injury,  although  the  in- 
sufficiency of  the  fences  was  caused  by  casu- 
alty and  without  negligence  on  his  part,  un- 
less such  injury  is  shown  to  have  been  inten- 
tional, or  the  result  of  gross  carelessness  on 
the  part  of  the  agents  and  servants  of  the 
company. —  Lake  Erie,  etc.,  R.  R.  Co.  v.  Wei- 
sel,  55  Oh.  St.  155  (1896)  ;  Pittsburg,  etc.,  Ry. 
Co.  v.  Smith,  26  Oh.  St.  124  (1875);  Cincin- 
nati, etc.,  R.  R.  Co.  v.  Waterson,  4  Oh.  St. 
424  (1854);  Railway  Co.  v.  Heiskell,  38  Oh. 
St.  666  (1883).  See  Easter  v.  Little  Miami 
R.  R.  Co.,  14  Oh.  St.  48  (1862). 

Contributory   negligence   of   landowner. 

It  is  not  contributory  negligence  for  a  land 
owner  to  turn  his  stock  into  a  field  insutli- 
ciently  fenced  where  it  is  the  duty  of  the 
company  to  fence. —  Railway  Co.  v.  Smith,  38 
Oh.  bt.  410  (1882);  Railroad  Co.  v.  Scudder. 
40  Oh.  St.  173  (1883).  See  Pittsburg,  etc, 
Ry.  Co.  v.  Methven,  21  Oh.  St.  586  (1871). 

See  under  old  partition  fence  act,  Railroad 
Co.  v.  Infirmary,  32  Oh.  St.  566  (1877);  San- 
dusky, etc.,  R.  R.  Co.  v.  Sloan,  27  Oh.  St.  341 
(1875). 

Want  of  notice  of  condition  of  fence. 

It  has  never  been  decided  that  it  was  no 
defense  for  a  company  to  show  that  it  had  no 
notice  of  the  condition  of  a  fence. —  See  Kail- 
way  Co.  v.  Smith,  38  Oh.  St.  410  (1882); 
Railroad  Co.  v.  Shultz,  43  Oh.  St.  270,  273 
(1885);  Baltimore,  etc.,  R.  R.  Co.  v.  Reamer, 
24  W.  L.  B.  222   (1890). 

Breachy  and  unruly  animals. 

An  owner  of  breachy  and  unruly  animals 
may  recover  for  their  injury  or  1<»-  provided 
the  animals  were  at  large  without  his  fault, 
and  he  has  used  that  reasonable  care  and  pre- 
caution in  restraining  them  which  a  prudent 
and  caut-ous  man  would  use  under  like  cir- 
cumstances.—Railwav  Co.  v.  Howard,  40  Oh. 
St.  6   (1883). 


Covenant   to  build   or   repair,    when    runs 
with  land. 

\\  lien-   ;i    railroad   company    ma 
poll  "I   land   in   fee  along  which  n-  right  ol 
way  i-  located,  "  Bubjed  to  the  condition  that 
said  grantee,  In-  beii  -  and  ..t  I  make 

and    maintain    good    and    luffii  lent    fi  a 
each  side  of  t  he  i  ighl  of  way  of  t  hi 
a-  now  located  and  built,     .     .    .    which  con« 
dition    and    obligation    -hall     1,.-    perpetually 
binding    on    the    owners    "i    the    land,"    the 
grantee,  bj  accepting  the  deed,  will  he  deemed 
to  have  entered   into  an  express  undei  I 
t<>    perform    the    condition    contained    in    the 
deed,  and  such  undertaking  will  run  with  the 
land  and  become  obligatory  upon  ■>  subst 
owner   by   purchase   from   the  grantee   of   the 
company.      Sickey  v.  Railway  <  .. ,  51  Oh    St 
40   (1894). 

Same   subject  —  purchaser    without     no- 
tice. 

A  written  agreement  by  the  grantoi  <>f  the 
right  of  way  Id  a  railway  company  to  fence  ic 
(in  each  side  through  hi-  land-  will  not  affect 
the  right  df  a  subsequent  purchaser  t>.  require 
the  company  to  fence  its  road,  when-  the  ]  ar- 

chase    was   made    without    actual    or   Const 

ive  notice  of  the  existence  of  such  ag uu-nt. 

Such  agreement   not   being  recorded,  the  mere 
use  and  occupation  of  the  right  of  way  by  the 
.company  and  it-  BUCCGE  ors  for  the  purp 
a    railroad    will    not    constitute    constructive 
notice  of  the  existence  of  such   agreem 
Railway   v.  Bosworth,  46  Oh.  St.   M    ,]---   , 

Same  subject  —  when  does  not  run  with 

land. 

Where  it  is  stipulated  in  a  deed  poll  that 
the  grantee,  his  heirs  and  assigns,  -hall  build 
and  perpetually  maintain  a  fence  mi  the  line 
between     the     land    granted     and    other    lands 

cwned  by  the  grantor,  and  the  parties  ' 

deed,  at  the  time  of  it-  execution,  contemplate 
the  subdivision  of  the  granted  premises  into 
building  or  town  lots,  and  their  subsequent 
-ale.  the  burden  of  mainl  billing  such  fence 
will  not  attach  to  or  run  with  lots  which  do 
not  abut  on  the  line  of  the  proposed  fence. — 
Walsh  v.  Barton.  24  Oh.  St.  28 

Same  subject. 

Where  the  covenant  runs  with  the  land  the 
grantee  of  the  original  owner,  whose  duty  it 
was  to  fence,  cannot   recover  the  cosl  of  fenc- 
ing.—  Warner  v.    Baltimore,  etc.,   R.   R 
31  Oh.  st.  265  (1877). 

Same  subject. 

Where  in  proc lings  to  condemn  laad  the 

parties    enter    into    an    agreement    of 
whereby    the  company   bound   itself   to   build 
rnd   maintain    fence-,   the   agreement    is 
and  binding,  and  run-  with  the  la- 
he   binding   on    the   assignees    or   grantet 
both   parties.— Huston   v.  Cincinnati,  etc.,  R. 
II.  Co.,  21  Oh.  St.  2:'.--'   [1871   , 


220 


Private  Corporations  in  Ohio. 


Fences,  Crossings,   Cattle-guards,   etc,  §  3324. 


a,,  ii.      subject. 

Where  a  landowner  by  duly  recorded  deed 
conveyed  a  right  of  way  and  covenanted  for 
himself,  his  heirs  and  assigns,  to  erect  and 
maintain  a  fence  on  each  side  of  such  way.  a 
lessee  of  his  grantee  would  he  so  far  bound  by 
the  covenant  that  he  could  not  claim  from  the 
railroad  company  a  higher  degree  of  care  to 
avoid  injury  to  a  horse  than  if  the  covenant 
had  been  kept. —  Easter  v.  Little  Miami  R.  R. 
Co.,   14  Oh.  St.  48    (1862). 

Same    subject  —  grantee    not    liable. 

When  the  deed  is  drawn  as  stated  m  the 
preceding  note,  the  company  will  not  have  a 
right  of  action  against  the  grantee  for  failure 
to  repair,  after  he  has  ceased  to  be  the  owner 
of  the  land  by  conveying  it  to  another.— 
Hickey  v.  Railway  Co.,  51  Oh.  St.  40   (1894). 

Failure  to   construct  fence  —  remedy. 

If  a  railway  company  fails  to  construct  a 
fence  as  required  by  this  section,  an  abutting 
landowner  may  construct  such  fence  and  re- 
cover of  the  company  the  reasonable  cost  and 
expense  thereof,  together  with  the  value  of 
the  use  and  occupation  of  his  premises  during 
the  time  such  fence  is  being  constructed  or  re- 
paired, but  he  must  do  all  he  can  to  confine 
his  loss  to  the  minimum,  and  he  cannot  re- 
cover for  damages  he  might  have  avoided. — 
Millhouse  v.  Railway  Co.,  7  0.  C.  C.  466 
(1893);  s.  c,  4  C.  D.  682;  s.  c,  36  W.  L.  B. 
358. 

Remedy  for  failure  of  company  to 
fence  or  build  crossings  according  to 
contract. 

Where  the  owner  of  land,  by  his  written 
contract,  agreed  to  give  to  a  railroad  com- 
pany the  perpetual  right  of  way  through  the 
same,  at  a  stipulated  price,  which  was  paid 
to  him,  with  a  provision  in  the  contract  that 
when  the  road  should  be  completed  the  com- 
pany should  fence  the  same,  held,  that  after 
the  road  is  completed,  the  owner  of  the  land 
cannot,  upon  failure  to  put  up  the  fence, 
eject  the  company  from  the  land. — ■  Hornback 
v.  Cincinnati,  etc.,  R.  R.  Co.,  20  Oh.  St.  81 
(1S70). 

Same  subject. 

Where  a  landowner  agreed  to  release  a  right 
of  way  in  consideration  of  a  certain  sum  of 
money  ami  the  construction  of  road  crossings 
and  cattle-guards,  and  the  company  took  pos- 
session before  receiving  a  deed  or  constructing 
the  crossings  or  guard-,  the  landowner  has  an 
equitable  lien  upon  the  property  sold,  as  well 
for  damages  for  not  constructing  the  crossings 
and  guards  as  for  the  unpaid  purchase  money, 
and  the  landowner  may  have  a  remedy  by 
compelling  specific  performance  or  by  enforc- 
ing his  lien. — Dayton,  etc..  R  R.  Co.  v.  Lew- 
ton,  20  Oh.   St.   401    (1870). 


Breach  of  covenant  to  build  and  repair 
—  damages. 

In  an  action  by  the  vendee  of  the  original 
owner  against  the  vendee  of  the  company,  for 
failure  to  build  fences  and  crossings,  the  rule 
of  damages  is  the  amount  of  injury  to  the  use 
and  enjoyment  of  the  adjoining  land,  occa- 
sioned by  the  want  of  such  fences  and  cross- 
ings during  the  time  the  railroad  or  right  of 
way  .vas  owned  by  the  defendant. —  Huston 
v.  Cincinnati,  etc.,  R.  R.  Co.,  21  Oh.  St.  235 
(1871). 

Gates  left  open. 

Where  gates  to  permit  passage  to  and  from 
fields  across  the  track  are  constructed  at  the 
request  of  the  landowner,  and  where  he  uses 
them  exclusively,  the  company  owes  him  no 
duty  to  see  that  they  are  kept  closed. —  Did- 
ltiiin  v.  Michigan,  etc.,  R.  R.  Co.,  31  W.  L.  B. 
240    (1894). 

Gates  —  duty  to  close. 

Where  a  company  puts  in  a  private  crossing 
with  gates,  and  stock  wanders  through  the 
gate  upon  the  company's  track  and  is  killed, 
the  duty  of  keeping  the  same  closed  devolves 
primarily  upon  the  landowner,  and  not  upon 
the  company,  and  evidence  showing  a  gate 
was  carelessly  left  open  is  not  admissible  on 
the  issue  as  to  the  condition  of  the  fence. — • 
Megrue  v.  Lennox,  59  Oh.  St.  479   (1878). 

Same  subject. 

The  same  rule  applies  to  a  third  person 
whose  cattle  break  into  a  field  which  has 
gates  which  nave  been  left  open. — ■  See  Balti- 
more, etc..  R.  R.  Co.  v.  Reamer,  24  W.  L.  B. 
222    (1890). 

Partition  fences  under  old  act. 

See  Railroad  Co.  v.  Miami  County  Infirmary, 
32  Oh.  St.  566  (1877);  Sandusky,  etc.,  R.  R. 
Co.  v.  Sloan,  27  Oh.  St.  341  (1875)  ;  Haxton  v. 
Pittsburg  Ry.  Co.,  26  Oh.  St.  214    (1875). 

When   fences   must  be   built   after   pas- 
sage of  act. 

See  Baltimore,  etc.,  R.  R.  Co.  v.  McElroy, 
35  Oh.  St.   147   (1S78). 

Barbed  wire  fence  law. 

See  §  4239a   (95  v.  470). 

Same  subject. 

The  allowance  of  six  months  to  comply  with 
the  statute  is  not  a  vested  right  which  cannot 
be  divested  by  repeal.  The  effect  of  a  repeal 
of  the  six  months'  limitation  is  to  require 
compliance  within  a  reasonable  time. —  Rail- 
road Co.  v.  Shultz,  43  Oh.  St.  270,  274  (1SS5). 

Crossings  —  inclines. 

Where  the  grade  of  the  track  is  higher  than 
that  of  the  roau  the  approaches  need  not  be 
built  by  the  railroad  company  so  far  on  both 

sides  of  the  crossing  that  there  would  be  prac- 


I\.\l  l.K<  IAD    I   ORP(  >K  \  ; 


221 


Fences,   Construction   and  Repaii, 


tically  no  incline  on  th<'  approaches,  bo  thai 
the  approaches  are   broughl    practically   to  a 

level  with  the  railway  crossing.  They  had  a 
right  to  make  inclines,  and  where  the  inclines 
are  made  -ale  and   sufficient    fur   ordinary   and 

regular  purposes  of  travel,  thai  is  a  Bufficienl 
compliance  with  the  statutes.  -Lake  Shore, 
etc.  R.  R.  Co.  v.  Bra //.ill,  13  0.  C.  C.  G22 
(1895)  ;  s.  c,  6  C.  D.  363. 

Crossing   defined. 

Under  this  section  the  company  is  Liable  for 
all  damages   sustained   in  person  or   property 

in  any  manner  by  reason  of  the  want  or  in- 
sufficiency of  a  crossing  over  its  tracks.  The 
word  "crossing"  is  used  in  a  limited  or  re- 
stricted sense,  and  includes  only  that  pari  of 
the  structure  immediately  over  and  across  the 
tracks,  and  sufficient  space  on  cither  side  to 
make  a  sufficient  and  sate  way  over  such 
tracks. — -See  Lynch  v.  Railway  Lo.,  20  0.  C. 
C.  248    (1»99). 

Crossings  over  roads  and  streets. 

See  §   3284  and  notes. 

Cattle-guards  at   private   crossings. 

The  company   should   provide   cattle-guards 

at  private  as  well  as  public  crossings. —  See 
Railroad   Co.   v.   Cunnington,   39   Oh.   St.   327 

(1883). 


Cattle-Guards       in       tnuus      .in. I       -t.itii.n 
>  aids. 

i    a-    il    j.  ittle 

guards,  may   he  consti  ued 
t  ion-,    required    by    publii    i 
venience,  and  i  he  propi  i  I 

by    i  la-  companj  .   bu1    rt  Inn   1 1 
thus  relieved,   ii    ih  it-  dutj    to  construct    the 
guards  at    the  tii-t    poinl   where  they  will  not 
interfere  with  the  needs  ol  the  public  and  the 
i  ompa  ii       ;>  nd   in  a  ii  acl  i  I    i  he  emu 

panj    for  damages,   the  question   whethei    the 
guards  are  properly  located  and  ph 
i he    jury.     Railroad    (  o.  New  b 

<  lh.   St.    15    I  1883)      Railroad   Co.   v.  I  unning 
ton,  39  Oh.  St.  327  I  L883)  ;   Pierce  v.    Vi 
L3  0.  I     I     51  I     L896)  ;  -.  c,  7  C.  D.   in:,. 

Company   not    entitled    to    compeniintion 
for  putting  in  cattle-guards. 
A    railroad    company    exercising    it-    pi 
subject    to  the  provisions  of  the   present   con- 
stitution, and  required  bythisacl  passed  since 
it-   incorporation    to   construcl    and    maintain 
cattle-guards  at   places  on  it-  road  when-  pub- 
lic highways  are  or  may  in-  constructed  a 
its  track,  i-  not   entitled  to  compensation  for 
making   or    maintaining   cattle-guards. 
way  Co.   v.   Sharpe,  38  Oh.   St.   150     L8S 


§  3325.  WHEN  LANDOWNERS  MAY  CONSTRUCT  FENCE  AT  COMPANY'S 
EXPENSE. —  If  such  company  or  person  neglect  or  refuse  to  construct  such  fence,  as 
provided  in  the  preceding  section,  the  owner  of  any  land  abutting  on  the  line  of  the 
land  of  the  railroad  may  construct  the  fence  therein  provided  for,  so  far  as  his  land 
abuts  on  the  railroad  lands;  and  when  he  has  completed  the  same,  he  may  present 
for  payment,  to  the  agent  of  the  company  for  receiving  and  shipping  freight  at  the 
station  nearest  to  the  tract  of  land  so  fenced,  an  itemized  account  of  the  expense 
thereof,  including  materials  and  labor;  and  if  such  company  or  person  neglect  or 
refuse,  for  thirty  days,  to  pay  such  account,  such  landowner  may  recover  the  reason- 
able cost  of  such  fence  from  the  owner  of  the  road,  in  any  court  having  jurisdiction 
of  the  same.     (April   18,  1874,  71  v.  85,  §   1.) 

See  notes  to  precedine;  section. 

§  3326.  COMPANY  TO  KEEP  FENCE  IN  REPAIR.—  When  the  fence  is  com- 
pleted the  company  shall  keep  it  in  good  repair;  and  if  any  such  company  or  person 
permit  any  part  of  the  fence  on  the  line  of  its  road  to  get  out  of  repair  so  that  it  will 
not  turn  stock,  the  owner  of  the  land  abutting  on  the  railroad  lands  where  the  fence 
is  out  of  repair,  may  notify  the  agent  of  the  company  for  receiving  and  shipping 
freight  at  the  station  on  the  road  nearest  to  the  place  where  the  fence  is  out  of  repair, 
that  a  portion  of  the  fence  on  the  line  of  the  road  is  out  of  repair,  stating  where,  how. 
and  the  probable  cost  of  repairing  the  same;  and  if  such  company  or  person  fail,  for 
twenty-four  hours  thereafter,  to  repair  the  fence  so  that  it  will  turn  stock,  the  owner 
of  the  land  may  furnish  materials  and  repair  the  same,  and  present  to  such  agent,  for 
payment,  an  itemized  account  of  the  expense  thereof,  including  materials  and  labor, 
and  if  the  same  be  not  paid  within  thirty  days  thereafter,  such  landowner  may  recover 
from  the  owner  of  the  road  the  reasonable  expense  of  such  repairs,  before  any  court 
having  jurisdiction  thereof.     (April  18.  1874,  71  v.  85.  §  1.) 


See  notes  to  section  3324. 


222 


Private  Corporatioxs  in  Ohio. 


Private   Crossings,    §S    3327,   3328. 


§  3327.  WHEN  PRIVATE  CROSSINGS  MUST  BE  BUILT.—  A  person  owning 
fifteen  or  more  acres  of  land  in  one  body  through  which  any  such  railroad  passes,  and 
which  is  so  situate  that  he  can  not  use  a  crossing  in  a  public  street,  road,  lane,  or 
highway,  in  passing  from  his  land  on  one  side  of  the  railroad  to  that  on  the  other 
side  without  great  inconvenience,  the  company  or  person  operating  the  road  shall, 
at  the  request  of  the  landowner,  within  four  months  after  such  request,  at  the  expense 
of  such  company  or  person,  construct  a  good  and  sufficient  private  crossing  across  the 
railroad  and  the  lands  occupied  by  the  company,  between  the  two  pieces  of  land  of  the 
landowner,  to  enable  him  to  pass  with  a  loaded  team,  and  over  which  he  shall  have 
the  privilege  of  passing  at  all  times  when  such  company  or  person  is  not  using  the 
railroad  at  the  crossing,  or  so  near  thereto  as  to  render  crossing  thereat  dangerous. 
(April  18,  1874,  71  v.  85,  §   1.) 


Rights   when  railroad   was   constructed 
before   enactment  of   this    section. 

The  owner  of  land  through  which  a  railroad 
passes  has  a  right  to  a  private  crossing,  al- 
though the  right  of  way  was  appropriated, 
and  the  railroad  constructed  before  the  pas- 
sage of  this  section. —  Mitchell  v.  Wabash  R. 
R.  Co.,  3  N.  P.  231   (1896);   s.  c,  6  Dec.   135. 

"Who  entitled  to  crossing. 

The  omission  of  the  word  "  farmer,"  implies 
an  intent  to  provide  generally  for  private 
crossings.— Mitchell  v.  Wabash  R.  R.  Co.,  3 
X.  F.  231   (1896);   s.  c,  6  Dec.  135. 

Records    as  to    compensation   for   cross- 
ings. 

Where  the  record  in  proceedings  in  which 
the  land  was  appropriated  is  not  in  evidence, 
even  thcugli  the  land  was  condemned  before 
the  passage  of  this  section,  it  will  not  be  held 
that  compensation  for  crossings  was  given. — 
Mitchell  v.  Wabash  R.  R.  Co.,  3  N.  P.  231 
(1896)  ;    s.   c,  6  Dec.   135. 

Constitutionality. 

The  section  is  constitutional  as  a  valid  ex- 
ercise of  the  police  power. —  Mitchell  v.  Wa- 
bash R.  R.  Co.,  3  N.  P.  231  (1896) ;  s.  c,  6  Dec. 
135. 

"What  determines  right  to  crossing. 

The  right  to  a  private  crossing  depends 
upon  the  fact  that  the  public  crossing  cannot 
be  used   "  without  great   inconvenience,"   and 


that  such  private  crossing  shall  be  used  only 
when  not  dangerous;  a  crossing,  therefore, 
should  be  constructed  at  the  point  most  con- 
venient and  least  dangerous. —  Mitchell  v. 
Wabash  R.  R.  Co.,  3  N.  P.  231  (1896);  s.  c,  6 
Dec.   135. 

■When   court   will   fix   location. 

Where  the  matter  is  before  a  court  of 
equity,  if  the  parties  cannot  agree  as  to  the 
location,  the  court  will  fix  it  by  means  of  en- 
gineers and  referees. —  Mitchell  v.  Wabash 
R.  R.  Co.,  3  N.  P.  231  (1896);  s.  c,  6  Dec. 
135. 

Injunction     against     interference    with, 
crossing. 

Where  a  landowner  has  complied  with  these 
sections,  and  the  railroad  company  has  de- 
clared its  intention  of  preventing  the  con- 
struction of  the  crossing,  an  injunction  may 
be  allowed  to  prevent  such  interference. — 
Mitchell  v.  Wabash  R.  R.  Co.,  3  N.  P.  231 
(1896)  ;    s.   c,   6   Dec.    135. 

See  generally  Jones,  etc.,  Co.  v.  C.  C.  C.  T. 
&  S.  Ry.  Co.,  7   N.  P.  245   (1894). 

Gates   at   private  crossings. 

See    notes   to    §    3324. 

Contract  for  private  crossing,  remedies 
for  breach. 

See  Bell  v.  Dayton,  etc.,  R.  R.  Co.,  3  0.  C. 
C.  31  (18S7);  s.  c,  2  C.  D.  19;  Dayton,  etc., 
R.  R.  Co.  v.  Lewion,  20  Oh.  St.  401   (1870). 


§  3328.  WHEN  LANDOWNER  MAY  BUILD  AT  COMPANY'S  EXPENSE.— 
If  such  company  or  person  neglect,  for  four  months  after  request  by  any  such  land- 
owner for  that  purpose,  to  construct  a  good  and  sufficient  private  crossing  as  pro- 
vided in  the  preceding  section,  such  landowner  may,  after  having  given  reasonable 
notice  to  the  agent  of  the  company  for  receiving  and  shipping  freight  at  the  station 
on  the  railroad  nearest  to  the  land  where  it  is  proposed  to  construct  such  private 
crossing,  of  the  time  when  such  landowner  will  proceed  to  construct  such  crossing, 
enter  upon  the  lands  of  the  company,  at  any  point  he  may  desire  between  the  two 
pieces  of  his  land,  and  construct  a  good  and  sufficient  private  crossing;  and  such 
company  or  person  shall  be  liable  to  him  for  all  the  reasonable  expense  thereof,  not 
exceeding  the  sum  of  fifty  dollars,  and  he  may  recover  the  same  in  an  action  against 
such  company  or  person,  before  any  court  having  jurisdiction  thereof.  (April  18, 
1874,  71  v.  85,  §  1.) 


Referred  to  in  30  W.  L.  B.  206. 


Railroad  <  Iorpor  \\  ions.  223 


Fences,  Crossings,  etc.,   § g  3329  3331. 


§    3329.     WHEN  FIVE  PRECEDING  SECTIONS  DO   NOT   APPLY.— The    | 
sions  of  the  five  preceding  sections  relating  to  fences  nnd  private  ci  -hall  not 

apply  to  any  case  in  which  compensation  for  building  a  fence  or  B  crossing 

has  been  or  may  hereafter  be  taken  into  consideration,  and  estimated  as  a  pari  -  I 
consideration  to  be  paid  for  the  right  of  way,  so  far  as  the  fence,  01  vate 

crossing,  has  been  or  may  be  settled  or  paid  for;  nor  shall  said  sections  be  h<- 
affect,  in  any  manner,  any  contract  or  agreement  between  any  railroad  company,  or 
person  having  the  control  and  management  of  a  railroad,  and  the  proprietors  or  occu- 
pants  of   lands    adjoining,    for   the    construction   and   maintenance    of    fenc<- 
guards,  and  railroad  crossings.     (March  2C,  1859,   56  v.  62,  §  4;  April   18,   1874,  71 
v.   85,    §    1.) 


Where  compensation  has  been  made. 

Where  compensation  for  building  a  fence  or 
private  crossing  was  taken  into  consideration 
when  the  right  of  way  wps  acquired,  the  com- 
pany is  not  liable  either  to  the  landowner  or 
the  public  for  failure  to  fence  or  for  insuffici- 
ent fences. —  Railway  Co.  v.  Wood,  47  Oh.  St. 
431    (1890). 

Parties  affected. 

The  effect  of  this  provision  is  limited  by  its 
terms  to  the  parties  maKing  the  agreement, 
though  the  agreement  may  be  made  to  run 
with  the  land. —  Railway  Co.  v.  Bosworth,  46 


Records  of  compensation  must  be  made. 

Where  the  defense  of  the  company  i 
ii    has    made  compensation   for  fencing  under 
this  section,  and  the  records  of  th.-  condemna- 

tion   | :eedings  are  silent   upon  tin-  bu! 

no    presumption    arises    that    the    i 

fence-  was  considered,  even  if  the  proceedings 

were  had  prior  to  the  passage  of  this 

Railroad    Co,    v.    ffoffhines,    16    Oh.    St 

i  L888)  :    Mitchell,  etc.,   <  'o.   v.   Wabash    R     EL 

Co.,  3   N.   P.  231    (1896);   8.  c.  »)  Dec    . 

Effect  of  agreements  of  record. 
See  Euston   >'.  Cincinnati,  etc.,   R.  1!.  I 

<ih.  St.  235  I  L877). 


Oh.  St.  81    (1888),  See  generally  a-  to  effeel   "f 

to  feme-.  §  .'i;;-Jt.  notes. 

§  3330.  WHEN  COMPANY  MAY  BUILD  FENCE  AT  LANDOWNERS  EX- 
PENSE.—  If  an  owner  of  lands  abutting  on  the  line  of  the  lands  of  a  company,  who 
is  legally  bound  in  any  manner  to  build  or  repair  the  fence  dividing  his  lands  from 
the  lands  of  the  company,  neglect  or  refuse  to  build  or  repair  such  fence  within  the 
time  in  which  he  is  bound  to  build  or  repair  the  same,  the  company  may  build  or 
repair  such  fence,  and  present  an  itemized  account  of  the  cost  of  labor  and  materials 
expended  in  such  construction  or  repair,  to  the  person  bound  to  build  or  repair  the 
fence,  for  payment;  and  if  the  same  be  not  settled  or  paid  within  thirty  days  there- 
after, the  company  may  recover  from  such  person  the  reasonable  cost  of  such  labor 
and  materials,  before  any  court  having  jurisdiction  thereof.  (April  18,  1874.  71  v. 
85,  §   1.) 

§  3331.  PENALTY  FOR  NOT  CONSTRUCTING  FENCES.—  A  company  or  per- 
son having  the  control  and  management  of  a  railroad  neglecting  or  refusing  to  con- 
struct fences,  cattle-guards,  or  public  crossings,  or  to  keep  the  same  in  repair,  as 
prescribed  in  section  thirty-three  hundred  and  twenty-four  after  thirty  previous  days 
notice  or  request  to  do  the  same,  made  in  writing  by  any  person,  shall  forfeit  and 
pay  for  each  and  every  day  such  company  or  person  so  refuses  or  neglects,  any  sum 
not  exceeding  fifty  dollars  per  day,  to  be  recovered  in  a  civil  action,  in  the  name 
of  the  state,  for  the  use  of  the  county  in  which  the  suit  is  brought.  (March  25, 
1859,  56  v.   62,  §   5.) 

An    Act     to    Provide    for    One    Strain    Railroad   Crossing   Anothei     - 

Railroad. 
Be  it  enacted  by  the  General  Assembly  of  the  State  of  Ohio: 

§  1  COMMON  PLEAS  COURT  GIVEN  JURISDICTION  TO  ASCERTAIN  AND 
DEFINE  MANNER  IN  WHICH  ONE  RAILROAD  SHALL  CROSS  ANOTHER.- 
That  where  it  becomes  necessary  for  the  track  of  one  railroad  company  to  cross  the 


224  Private  Corporations  in  Ohio. 


Cattle  Ways,   Crossings  over  Railroads,   S§  3332,  3333. 


track  of  another  railroad  company,  unless  the  manner  of  making  such  crossings 
shall  be  agreed  to  between  such  companies,  it  shall  be  the  duty  of  the  court  of  com- 
mon pleas  of  the  county  wherein  such  crossing  is  located,  or  a  judge  thereof  in 
vacation,  on  application  of  either  party  to  ascertain  and  define  by  its  decree  the  mode 
of  such  crossing  which  will  inflict  the  least  practical  injury  upon  the  rights  of  the 
company  owning  the  road  which  is  intended  to  be  crossed;  and  if  in  the  judgment 
of  such  court  or  such  judge  thereof  it  is  reasonable  and  practicable  to  avoid  a  grade 
crossing,  it  shall  by  its  process  prevent  a  crossing  at  grade.     (May  10,   1902,  95  v. 

530.) 

t 
§   2.     This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage.     (May 

10,  1902,  95  v.  530.) 

§  3332.  USE  OF  CULVERT  FOR  CATTLE  WAY.—  Any  owner  of  land  through 
which  a  railroad  is  constructed,  and  upon  which  there  is  a  culvert,  waterway,  or  open- 
ing through  the  embankment  of  the  railroad,  of  sufficient  height  for  such  purpose, 
may  use  such  culvert,  waterway,  or  opening,  for  the  purpose  of  a  stock  or  cattle  way, 
under  the  track  of  the  road,  so  as  to  permit  stock  to  pass  and  re-pass;  but  the  land- 
owner shall  build  and  maintain  all  necessary  fences  on  both  sides  of  said  opening, 
and  shall  not,  by  use,  or  otherwise,  permit  the  foundations  of  any  structures  about 
such  opening  to  be  injured  or  interfered  with.      (R.  S.  1880.) 

Contract  for  cattle  pass.  I  Contract     for     waterway,     specific    per- 

See  Lowe  v.  W.  &  L.  E.  R.  R.  Co.,  12  O.  C.        formance. 

('    743   (1894)-  s    c     4  C    D    8^.  ^ee  Bell  v.  Dayton,  etc.,  R.  R.  Co.,  3  0.  C. 

I  C.  31    (18S7)  ;  s.  c.,  2  C.  D.  19. 

§  3333.    RAILROAD  CROSSINGS,  HOW  MADE;  CROSSING  OF  TRAINS,  REGU- 
LATIONS.— When  the  tracks  of  two  railroads  cross  each  other,  or  in  any  way  connect 
at  a  common  grade,  the  crossings  shall  be  made  and  kept  in  repair,  and  watchmen 
maintained   thereat,   at  the  joint  expense    of   the   companies   owning  the   tracks;   all 
trains  or  engines  passing  over  such  tracks  shall  come  to  a  full  stop  not  nearer  than 
two  hundred  feet,  nor  further  than  eight  hundred  feet  from  the  crossing,  and  shall 
not  cross  until  signaled  so  to  do  by  the  watchman,  nor  until  the  way  is  clear,  and 
when  two  passenger  or  freight   trains  approach  the  crossing  at  the  same  time,   the 
train  on  the  road  first  built  shall  have  precedence  if  the  tracks  are  both  main  tracks 
over  which  all  passengers  and  freights  on  the  road  are  transported;  but  if  only  one 
track  is  such  main  track,  and  the  other  is  a  side  or  depot  track,  the  train  on  the  main 
track  shall   take  precedence;  and  if  one  of  the  trains  is  a  passenger  train   and  the 
other  a  freight  train,  the  former  shall  take  precedence,   and  regular  trains  on  time 
shall  take  precedence  over  trains  of  the  same  grade  not  on  time,  and  engines  with 
cars  attached,  not  on  time,  shall  take  precedence  of  engines  without  cars  attached  not 
on  time;  provided,  however,  and  in  case  such  two  railroads  crossing  each  other,  or  in 
any  way  connecting  at  a  common  grade,  shall  by  any  works  or  fixtures  to  be  erected 
by  them  render  it  safe  to  pass  over  said  crossing  without  stopping,  and  such  works 
and  fixtures  shall  first  be  approved  by  the  commissioner  of  railroads  and  telegraphs, 
and  the  plan  of  said  works  and  fixtures  for  such  crossing,  designating  the  plan  of 
crossing  shall  have  been  filed  with   such  commissioner  of  railroads  and  telegraphs, 
then,  and  in  that  case,  the  provisions  of  said  section  thirty-three  hundred  and  thirty- 
three,   and  the  provisions   of  sections   thirty-three  hundred   and  thirty-four,   thirty- 
three  hundred  and  thirty-five,  shall  not  apply;  but  if  such  commissioner  of  railroads 
and  telegraphs  shall  disapprove  such  plan,  or  fail  to  approve  the  same  within  twenty 
days  from  the  filing   thereof,  such   companies  may   apply  in  the  county  where  said 
crossing  is  situated,  to  the  court  of  common  pleas,  or  to  a  judge  thereof  in  vacation, 
in  the  manner  provided  in  section  thirty-three  hundred  and  seventeen,  and  the  same 


Railroad  (  !orpora  i  u  >n  . 


225 


Crossings  over  Railroads,      3333 


proceedings  shall  be  had,  and  with  the  same  effect  as  provided  In  Bald  I 
tion.     (April   14,  1882,  79  v.  95;  R.  S.  1880;  March  24,  1860,  57  v.   106 


See  also  as  to  appliances,  §  247d. 

Lessee  is  owner. 
A   railroad   company   which   haa   possession 

find  control  of  a  railroad  in  this  state  as  lessei 
thereof  is  one  "owning  the  (rack-"  of  such 
railroad  within  the  meaning  of  l  his  section. 
—  Baltimore,  etc.,  R.  R.  Co.  v.  Walker,  45  Oh. 
St.  577    (1888). 

Duty  of  lessee. 

The    necessity   for    keeping    the   crossing   in 
repair,    and    maintaining    watchmen    thereat, 
grows  out  of  the  use  and  operation  of  the  rail 
roads  crossing  each  other  at  a  common  grade, 
and  the   benefits  thereof  accrue   to   the    com 
panies  using  and  operating  the  roads;   and  as 
a    lessee   company,   while   operating    its   road, 
receives    the    benefit    and    security    resulting 
from  a  safe   crossing  and   the   services   of   the 
watchmen,  it  takes  them  subject  to  the  burden 
of  their  expense,  as  provided  by  the  statute 
Baltimore,  etc.,  R.  R.  Co.   v.   Walker,  45  Oh. 
St.  577    (1888). 

Joint  duty,  expense. 

This  section  imposes  a  joint  duty  and  obli- 
gation of  making  and  maintaining  the  cross- 
ings and  keeping  watchmen  thereat,  and 
requires  the  expense  to  be  borne  by  the  com- 
panies jointly.  The  burden  is  common  to  both 
companies,  and  where  either  performs  the 
whole  duty  and  pays  the  whole  expense  it  is 
entitled  to  recover  from  the  other  its  equal 
proportion  thereof. —  Baltimore,  etc.,  R.  R. 
Co.  v.  Walker,  45  Oh.  St.  577    (1888). 

Expense  of  crossing. 

This  section  imposes  on  both  companies  the 
expense  of  making  and  keeping  up  such  cross- 
ing as  is  required,  without  regard  to  the  date 
of  their  respective  charters,  or  the  location  or 
construction  of  their  respective  roads. — 
Lake  Shore,  etc.,  Ry.  Co.  v.  Cincinnati,  etc., 
Ry.  Co.,. 30  Oh.  St.  604   (1876). 

Apportionment  of  expense. 

Whether  in  a  case  under  this  section  the 
expense  should  be  apportioned  according  to 
the  use  of  the  crossing,  or  otherwise  than 
equally,  quaere. —  Baltimore,  etc.,  R.  R.  Co.  v. 
Walker,  45  Oh.  St.  577    (1888). 

Constitutionality. 

This  act  is  a  valid  exercise  of  the  police 
power  of  the  state,  and  is  a.  reasonable  regula- 
tion of  the  manner  in  which  railroad  trains 
shall  be  run  so  as  to  avoid  danger  to  the  lives 
and  property  of  people  using  a  railroad. — 
Lake  Shore,  etc.,  Rv.  Co.  v.  Cincinnati,  etc., 
Ry.  Co.,  30  Oh.  St/604   (1876). 

Allf  railroads  subject  to  police  power. 

Every    railroad   company    in    this    state   ac- 
cepts its  charter  and  maintains  and  operates 
LAW  GOV.   PRIV.   COR.  — 15- 


corporate   property 

t  he  inherent  power  ot  I  Ik 

police    regulal  ions    a      i  hie        ■.•  m 

necessitj     requiri       1  hi  1. 

Ry.  (  0    -     I  in 

604    (1876), 

Right  to  cross  tracks. 

h  coi  porate  chai  tei  -  and  franchiw 
subject  to  the  power  ol  the  state  to  aut 
the  construction  of  other  i 
tracks  whenevei  the  public  welfan 
quire.  Neither  the  priority  of  one  •  I 
*<\  er  1  be  ol  her,  nor  the  prior  local  ion  01 
struction  of  a   railroad   I  hi  I  -  this 

right.     Lake   Shore,  etc., 
nati,  etc.,  Ry.  Co.,  30  Oh.  St.  604  |  :- 

Same  subject. 

The    righl    of   one    railroad   corporation    to 
cross  the  track  of  anothei  in  constructing 
operating  it-  road   is  derived  by  grant 
franchise  so  to  do  from  ;  and  not  by 

purchase  or  appropi  ia  ,  first 

located   and    constructed.     The   latter   ). 
vested  exclusive  right  to  such  crossing  foi    its 
use  againsl  t  be  i  ighl  of  t  be  public  to  .1  cross 
ing,    provided    compensation    is    made. 
Shore,  etc.,  Ry.  Co.  v.  (  incinnati,  et 
30  Oh.  St.  604  (1876). 

Consequential  damages. 

In  a  proceeding  under  the  Btatute  by  a  rail- 
road   corporation    to    appropriate    a    strip    ol 
land  across  the  track  of  another,  to  bemused  in 
common  by  each  as  a  railroad  crossing, 
common  grade,  the  owner  of  such  track  b 
right  to  recover  as  consequential  damages  the 
additional     expense     rendered     accessary     in 
operating  it-  road  caused  by  complying  with 
the  provisions   of   this    section. —  Lake    - 
etc.,   Ry.   Co.   v.   (incinnati.   etc.,   Ry,    < '».,  30 
Oh.  St.  604   (1876). 

Measure  of  damages. 

In  such  condemnation  proceeding  thi 
pany  whose  tracks  it  i-  sought  to  1  ross  i-  enti- 
tled to  compensation  for  the  property  or 
interest  in  its  righl  of  way  and  tracks  actu- 
ally appropriated,  and  for  su  ih  consequential 
damages,  aol   provided  for  by  this  - 

are   the    direct    and    proximate   COnsequei 
such    appropriation.—  Laki      5  etc.,    l!v. 

Co.  v.  Cincinnati,  etc..  Rv.  Co.,  30  1  I 

(1876). 

Same  subject. 

The   jury   in   such   condemnation   procei 
cannot    include    the    additional    ex]  • 
vided   for    by    this    section,   nor   take    inl 
count   the   detention   of  train-.  ;ture 

business,  nor  additional  expenses  incident    to 
the  future  exercise  of  their  corporate  powers. 
—  Lake  Shore,  etc.,  Ry.  Co.  v.  Cincinnati 
Ry.  Co.,  30  Oh.  St.  604  (1876). 


226 


Private  Corporations  in  Ohio. 


Crossings  over  Railroads,   §S   3334-3336. 


Negligence   in  operating   crossing. 

For  a  charge  to  a  jury  in  a  negligence  case 
involving  this  section,  see  Moulder  v.  Cleve- 
land, etc.,  R.  R.  Co.,  1  N.  P.  361  (1894);  s.  c, 
5  Dec.  664. 


Specific     performance     of     contract     to 
maintain   crossing. 

See  Columbus,  etc.,  Rv.  Co.  v.  Ohio  South- 
em  Ry.  Co.,  1  0.  C.  C.  275;  s.  c,  1  C.  D.  151 
(1885). 

See  generally    §  247d,   §   34-13-5. 


§  3334.  RULES  TO  BE  MADE  AND  PUBLISHED.— The  managing  agent  or 
superintendent  of  every  railroad  shall  establish,  and  publish  to  all  the  employes  on 
the  road,  such  rules  and  regulations  as  shall,  in  all  cases,  secure  strict  compliance 
with  the  provisions  of  the  foregoing  section,  and  shall  republish  such  rules  and  regu- 
lations on  each  time  table  or  card  issued  to  the  employes  on  the  road;  if  such  manag- 
ing agent  or  superintendent  fail  or  neglect  to  establish  and  publish  such  rules  and 
regulations,  or  to  re-publish  the  same  on  each  time  table  or  card  issued  to  the 
employes  on  the  road,  he  shall  be  personally  liable,  for  every  such  neglect  or  refusal, 
to  a  penalty  of  one  hundred  dollars,  to  be  recovered,  together  with  costs,  in  an  action 
against  him  in  favor  of  the  state,  to  be  brought  in  the  court  of  common  pleas  of  any 
county  wherein  any  such  crossing  is;  and  such  agent  or  superintendent,  and  the  com- 
pany of  which  he  is  agent  or  superintendent,  shall  also  be  liable  in  damages  to  any 
person  or  company  injured  in  person  or  property  by  an  accident  arising  from  such 
failure  or  neglect.     (March  24,  1860,  57  v.  106,  §  2.) 

§  3335.  PENALTIES  FOR  VIOLATIONS  OF  §  3333.—  Every  engineer  or  person 
in  charge  of  an  engine  who  wilfully  fails  to  comply  with  the  provisions  of  section 
thirty-three  hundred  and  thirty-three  or  fails  to  bring  the  engine  of  which  he  is  in 
charge,  with  the  train,  if  any,  thereto  attached,  to  a  full  stop  at  least  two  hundred 
feet  before  arriving  at  any  railroad  crossing  or  connection,  or  crosses  the  same  before 
signaled  so  to  do  by  the  watchman,  or  before  the  way  is  clear,  shall  be  personally 
liable  to  any  person  injured  by  reason  of  such  failure  to  a  penalty  of  one  hundred 
dollars  to  be  recovered  by  civil  action,  at  the  suit  of  the  state,  in  the  court  of  com- 
mon pleas  of  any  county  wherein  such  crossing  or  connection  is;  and  the  company 
in  whose  employ  such  engineer  or  person  in  charge  of  an  engine  is,  as  well  as  the 
person  himself,  shall  be  liable  in  damages  to  any  person  or  company  injured  in  per- 
son or  property  by  such  neglect  or  act  of  such  engineer  or  person.  (March  31,  1874, 
71  v.  50,  §  3.) 

§  3336.  SIGNALS  AT  RAILROAD  CROSSINGS.— Every  company  shall  have 
attached  to  each  locomotive  engine  passing  upon  its  road,  a  bell  of  the  ordinary  size 
in  use  on  such  engine,  and  a  steam  whistle;  and  the  engineer  or  person  in  charge  of 
an  engine  in  motion  and  approaching  a  turnpike,  highway,  toward  (town  road)  cross- 
ing or  private  crossing  where  the  view  of  said  private  crossing  is  obstructed  by 
embankment,  trees,  curve  or  any  other  obstruction  to  view,  upon  the  same  line  there- 
with, and  in  like  manner  where  the  road  crosses  any  other  traveled  place,  by  bridge 
or  otherwise,  shall  sound  such  whistle  at  a  distance  of  at  least  eighty  and  not  further 
than  one  hundred  rods  from  the  place  of  such  crossing,  and  ring  such  bell  continu- 
ously until  the  engine  passes  such  crossing;  but  the  provisions  of  this  section  shall 
not  interfere  with  the  proper  observance  of  any  ordinance  passed  by  any  city  or  vil- 
lage council  regulating  the  management  of  railroads,  locomotives  and  steam  whistles 
thereon,  within  the  limits  of  such  city  or  village.  (April  16,  1892,  89  v.  331;  May 
13,  1886,  83  v.  153;  R.  S.  18S0;  March  25,  1872,  69  v.  49,  §  1.) 


Duty  of  person  about  to  cross  tracks. 

Ordinary  prudence  requires  that  a  person 
in  the  full*  enjoyment  of  the  faculties  of  hear- 
ing and  Beeing,  before  attempting  to  pass  over 
a  known  railroad  crossing,  should  use  them 
for   the  purpose   of   discovering  and  avoiding 


danger  from  an  approaching  train;  and  the 
omission  to  do  so  without  a  reasonable  excuse 
therefor  is  negligence,  and  will  defeat  a  re- 
coverv. —  Pennsylvania  Co.  v.  RathgeD,  32  Oh. 
St.  66  (1877);  Belief  ontaine  Ry.  Co.  v. 
Snyder,    24    Oh.    St.    G70     (1874);    Cleveland, 


Railroad  <  i 


227 


Crossings    over    Railroads,     $    3337. 


etc.,  K.  R.  Co.  v.  Crawford,  -J.  I  Oh.  St.  631 
(1S74I;  Cleveland,  etc.,  Ry.  Co.  \.  Elliott,  28 
Oh.  St.  340  (1876)  ;  Lake  Shore,  etc.,  Ry.  Co. 
v.  Gaffney,  9  0.  C.  C.  32  (1894);  s.  <•..  6  C.  D. 
94;  Lake  Shore,  etc.,  Ry.  (  o.  v.  Schade,  15  0. 
C.  C  124  i  1895)  :  s.  ...  s  c.  |).  316;  Railwaj 
v.  Schneider,  15  oh.  Si.  678  I  1888)  ;  Lake 
Shore,  etc.,  Ry.  Co.  v.  Geiger,  8  0.  C.  C.  41 
i  L893)  :  s.  c,  I  C.  I).  307;  New  Fork,  etc., 
Ry.  ('<>.  v.  Swartout,  II  0.  C.  C.  582  I  1895)  ; 
s.  c,  (i  C  I).  768;  ('.  C.  &  I.  Ry.  Co.  \.  Reiss, 
13  O.  C.  C.  405  (  1889)  :  s.  c,  7  C.   I).  450. 

Where  turnpike  is  crossed    by  bridge. 

This  section  requires  the  engineer  having  in 
charge  an  engine  in  motion  to  ring  the  bell 
and  sound  the  whistle  on  approaching  a  place 
where  the  road  crosses  any  highway  or  trav- 
eled place  by  a  bridge  or  other  structure. 
Railway  v.  Jump,  50  Oh.  St.  651  i  1893). 

Duty  to  persons  on  track. 

This  section  is  intended  for  the  protection 
of  such  persons  only  as  are  crossing  the  track 
or  are  about  to  do  so;  and  does  not  inure  to 
the  benefit  of  persons  who  are  on  the  track 
but  not  at  a  crossing. —  Cleveland,  etc..  Ry. 
Co.  v.  Workman,  66  Oh.  St.  509  (1902).  See 
Dick  v.  Railroad  Co.,  3S  Oh.  St.  3S!)  1 1 SS2 )  : 
Railroad  Co.  v.  Depew,  40  Oh.  St.  121,  126 
(1883). 

Power  of  municipalties  to  regulate. 

The  most  that  can  lie  claimed  for  the  latter 
part  of  this  section  is  that  it  by  implication 
confers  powers  upon  municipal  corporations 
to  regulate  the  management  of  locomotives 
and  steam  whistles  and  bells  with  reference  to 
crossings  in  such  municipalities.  It  doe-,  no1 
enable    municipalities   to   compel    railroads    to 


employ    watchmen.      Ravena    \.   Pennsj 

<  o..   i.-,  Oh.  St.  118,  1 

Evidence. 

Though  there  i-   positiv< 
whist  le  was  blow  n  before  i  he  train  r< 

tig,  i  he  com  i  cannol  direi  I  ■<  ■■  ei  diet   i"i 
defendant   «  hei  e  some  of  i  he  w  it  ne 
i  hat    t  he  w  1 1 i - 1  !••  was  blow  n   more   i  han 
feel   from  t  he  crossing  instead  <>i  «  il  hin 

I »l  -  "i   ii  -  .i  -   i '  quired   by  t  In 

Griffith   v.   Baltimore,  etc.,   R.   R.  I  o.,    |  ; 
574   i  1890)  :  -.  c,  6  0.  1  .  D.  606. 

What  is  positive  testimony  as  to  whistle 

and  bell. 

The  testimony  of  witnesses  who  testify  that 
they    were   walking   on    the   ti  the 

train  was  coming,  were  giving  their  attention 
to  the  t  rain,  and  t  hat  I  hey  heard  no  «  hurtle 
or  bell,  i-  not  negal  h  >■.  bul  posil  ive  tesl  in 

Lake  shun-,  etc.,  R.  R.  i  ...  v.  Schade,  la  0. 
('.  C.  424    I  1895)  :    a.  c.,  8  C.  D.  316. 

Affirmative     and     negative     testimony — 

weight. 

Other  things  being  equal,  the  testimoi 
the  engineer  and  fin  man  of  the  train  that  the 
whistle  was  blown  and  the  bell  rung  as  it  ap- 
proached the  crossing  is  entitled  to  more 
weighl  than  the  negative  testimony  of  other 
witnesses  thai  they  did  nol  hear  either  or 
both.  Griffith  v.  Baltimore,  e1  -..  R.  I: 
!  I    Fed.  574  1 1! ;  s.  ...  6  1 1.  I  .  D.  666. 

When  failure  not  proximate  cause. 

Where    it    appeal-    that    the    plaintiff   was 
-truck    several   hundred   feel    from  a   crossing, 

the    failure    to    give    -iunal-    for    the    cr< 
cannot  be  regarded  as  the  proximate  cause  of 

t  he  accidenl .      Lai  e  SI etc.,   R.    R.  I 

Hani-.  23  0.  C.  C.    loo    |  1891  |. 


§  3337.  PENALTIES  FOR  VIOLATION  OF  PRECEDING  SECTION.—  Every 
engineer  or  person  in  charge  of  any  such  engine  who  fails  to  comply  with  the  provi- 
sions of  the  preceding  section  shall  be  personally  liable  to  a  penalty  of  not  less  than 
fifty  nor  more  than  one  hundred  dollars,  to  be  recovered  by  civil  action,  at  the  suit 
of  the  state,  in  the  court  of  common  pleas  of  any  county  wherein  any  such  crossing 
is;  and  the  company  in  whose  employ  such  engineer  or  person  in  charge  of  an  engine 
is,  as  well  as  the  person  himself,  shall  be  liable  in  damages  to  any  person  or  company 
injured  in  person  or  property  by  such  neglect  or  act  of  such  engineer  or  person. 
(March  25,  1872,  69  v.  49,  §  2.) 


Contributory  negligence. 

The  omission  to  ring  the  bell  or  sound  the 
whistle  at  public  crossings  is  not  of  itself  suf- 
ficient ground  to  authorize  a  recovery,  if  the 
party,  notwithstanding  such  omission,  might, 
by  the  exercise  of  ordinary  care,  have  avoided 
the  accident. —  Cleveland,  etc.,    Ry.   Co.   V.    El 
liott.  2s  Oh.  St.  340  (1876);   Pennsylvania  Co. 
v.   Rathgeb,  32   Oh.    St.   66,    72    (1877);    New 
York,   etc.,  Ry.   Co.   v.  Swartout.   14   0.   C.  C. 
582  (1895)  :  s.  c.  (i  C.  T).  768;  Baltimor 
R.  R.  Co.  v.  Griffith,  159  U.  S.  603.  607   I  I  ! 
s.  c.  8  O.  F.  D.  573:   Horn  v.  Baltimore,  el  '.., 


R.   R.  Co.,  54   I  ed.  301      1893)  ;    Pennsylvania 
Co.  v.  Alburn,  23  0.  C.  C.  130  I  1901). 

Proximate   cause. 

it   i-  evident    from  the  language  of  th 
tion  that  the  failure  to  give  signals  must  have 
occasioned    the   accident,    thai    is,   must 
been  t  he  proximate  cause  of  it .   I"  I 
covery    can    be    had.    -Pennsylvania     Co.     v. 
Rathgeb.  32  Oh.  St.  66.  72     1877    ;  Cincinnati, 
etc..    R.    R.    Co.    v.    Murphy.    18   0 

-    '.,  M  C.  D.  195;   Horn  v.  Baltimore, 
etc.,  R.  R.  Co.,  54  Fed.  301   I  18! 


228 


Private  Corporations  in  Ohio. 


Street  and   Highway   Crossings,   etc.,    §§   3337-1-3337-4. 


§  3337-1.  Sec.  1.  RAILROAD  BRIDGES  OVER  STREETS.—  It  shall  be  unlaw- 
ful for  any  person,  company  or  corporation  owning,  or  operating  any  railroad,  cross- 
ing, or  that  may  hereafter  cross,  over  and  above  any  street,  less  than  seventy  feet  in 
width,  in  any  city  in  this  state,  at  an  elevation  above  such  street,  sufficient  to  permit 
persons  to  pass  and  repass  along  such  street  beneath  such  railroad  crossing,  to  place 
or  cause  to  be  placed,  or  to  suffer  or  permit  to  be  or  remain  in  such  street,  beneath 
such  railroad  crossing  or  bridge,  any  pier  or  other  stay  or  support  for  such  crossing 
or  bridge,  or  to  suffer  or  permit  any  such  railroad  crossing  or  bridge  to  be  or  remain 
in  such  condition,  that  any  iron,  coal  or  other  hard  substance,  or  any  fiuid  or  noisome 
matter,  may  fall  or  drop  from  or  through  any  such  crossing  or  bridge,  upon  per- 
sons traveling  or  passing  beneath  the  same;  and  any  such  person,  company  or  cor- 
poration owning  or  operating  any  such  railroad,  failing  to  comply  with  the  require- 
ments of,  or  violating  any  of  the  provisions  of  this  section,  shall,  for  each  and  every 
day  during  the  continuance  of  such  failure  or  violation,  and  on  account  thereof,  for- 
feit and  pay  to  such  city  the  sum  of  one  hundred  dollars,  which  may  be  recovered  in 
a  civil  action,  in  the  name  of  such  city,  against  the  owner  or  operator  of  such  railroad, 
or  both,  as  the  city  may  elect,  and  thereafter  like  recovery  may  be  had  in  like  man- 
ner, for  subsequent  failures  and  violations  aforesaid.     (April  3,  1889,  86  v.   197.) 

§  3337-2.  COUNCIL  MAY  PROHIBIT  SWITCHING,  ETC.,  ON  SUCH  BRIDGES. 
—  That  the  city  council  of  any  city  may  prohibit  the  switching  of  freight  engines, 
trains,  or  cars,  over  or  on  said  crossing  or  bridge,  the  sounding  of  locomotive  steam 
whistles,  on  or  near  the  same,  and  the  standing  or  stopping  of  any  railroad  engine 
over  or  on  the  same,  and  may,  by  ordinance,  constitute  the  same  an  offense,  and 
provide  for  the  punishment  of  any  person  committing  such  offense.  (April  3,  1889, 
86  v.  197.) 


§  3337-3.  HIGHWAY  AND  STREET  CROSSINGS  MUST  BE  BUILT  AND 
REPAIRED  BY  COMPANY. —  All  railway  or  railroad  companies  operating  a  line 
or  lines  of  railway  in  this  state,  shall  build  or  cause  to  be  built,  and  keep  in  repair 
good  and  sufficient  crossings  over,  or  approaches  to  such  line  or  lines  of  railway,  its 
tracks,  side-tracks  and  switches,  at  all  points  where  any  public  highway,  street,  lane, 
avenue,  alley,  road  or  pike  is  now  or  may  hereafter  be  intersected  by  such  lines  of 
railway,  its  tracks,  side-tracks,  or  switches.  And  also  good  and  sufficient  sidewalks 
on  both  sides  of  streets  intersected  by  their  roads,  the  full  width  of  the  right  of  way 
owned,  claimed  or  occupied  by  them;  and  as  to  crossings  and  approaches  outside  of 
municipal  corporations,  the  township  trustees  shall  have  power  to  fix  and  determine 
the  kind  and  extent  thereof,  and  the  time  and  manner  of  constructing  the  same;  and 
as  to  crossings,  approaches  and  sidewalks  within  municipal  corporations,  the  munici- 
pal councils  shall  have  and  exercise  the  same  powers  as  trustees  concerning  crossways 
and  approaches  outside  of  municipalities,  and  such  crossways,  approaches  and  side- 
walks shall  be  constructed,  repaired  and  maintained  by  the  railroad  companies  as  so 
ordered.     (April  2,  1891,  88  v.  261.) 


See  generally  §  3324  and  notes,  §  3284  and 
notes. 

Crossing  defined. 

See  Lynch  v.  Railway  Co.,  20  0.  C.  C.  243 
(1899). 


Constitutionality. 

See  Lake  Shore,  etc..  Ry.  Co.  v.  Cincinnati, 
etc.,  Ry.  Co.,  30  Oh.  St.  (504   (1876). 


5  3337-4.  SERVICE  OF  NOTICE  ON  RAILROAD  COMPANIES.—  It  shall  be  the 
duty  of  the  officer  or  officers  having  charge  of  any  public  highway,  street  or  alley 
intersected  by  any  line  of  railway,  to  serve  a  written  notice  upon  the  nearest  station 
agent  or  section  foreman  having  charge  of  that  portion  of  the  railway  where  such 
intersection  occurs,  that  such  crossing,  approach  or  sidewalk  as  herein  described  shall 


Railroad  (  !orpora  i  ions.  229 

Street  and  Highway  Crossings,  (  -  '.7-9. 


be  built  or  repaired,  setting  forth  the  kind  and  extent  thereof,  and 

of  constructing  the  same,  as  ordered  by  the  council  or  trustees.     (Apiil  2,   1891,  88 

v.  261.) 

§  3337-5.  WHEN  CROSSINGS,  ETC.,  MUST  BE  BUILT.— It  shall  be  the  duty 
of  any  railway  company  so  notified,  to  comply  with  said  notice  within  a  period  of 
thirty  (30)  days  from  and  after  receiving  such  notice,  and  on  failure  so  to  do. 
township  trustees,  or  council  as  the  case  may  be,  may  cause  such  crossing,  approach 
or  sidewalk  to  be  constructed  or  repaired  as  before  ordered,  and  may  recover  tlu- 
of  so  doing  with  interest  thereon,  in  a  civil  action  against  the  railroad  company.  In 
the  name  of  the  trustees  or  municipality  as  the  case  may  be,  before  any  court  of  com- 
petent jurisdiction.     (April  2,   1891,   88  v.  261.) 

§  3337-6.  CROSSINGS  MUST  BE  KEPT  CLEAR  OF  SNOW.—  It  shall 
be  the  duty  of  all  railway  companies  owning  or  operating  any  line  of  railway  within 
the  limits  of  the  state  of  Ohio  to,  at  all  times,  keep  all  public  highways  now  or  here- 
after crossing  such  line  of  railroad,  clear  of  snow,  so  that  the  same  shall  at  all  times 
be  in  a  safe  and  convenient  condition  for  travel  for  a  distance  of  fifty  (50)  feet  each 
way  from  the  center  of  said  railroad  along  such  highway.    (April  2,  1891,  88  v.  261.) 

Not  negligence  per  se  to  fail  to  remove  snow. 

The  company  is  only  bound  to  use  such  care  a-  a  reasonable  person  would  use  under  like 
circumstances.— Cincinnati,  etc.,  R.  R.  Co.  v.  Dagner,  39  W.  L.  B.  19   (1898). 

§  3337-7.  PENALTIES. —  Any  railroad  company  which  shall  neglect  to  comply 
with  the  terms  of  this  act,  shall  be  liable  to  pay  damage  to  the  city,  village,  town  or 
township  in  which  the  highway  is  situated  in  the  sum  of  thirty  (S30)  dollars  for 
such  neglect,  and  a  further  sum  of  ten  ($10)  dollars  per  day  for  each  and  every  day 
such  railroad  company  fails  or  neglects  to  comply  with  the  terms  of  this  act,  the  same 
to  be  recovered  in  an  action  brought  in  the  name  of  the  city,  village,  town  or  town- 
ship as  the  case  may  be.  It  is  hereby  made  the  duty  of  the  prosecuting  attorney  of 
the  county  to  prosecute  to  judgment  any  claim  arising  under  the  foregoing  provi- 
sions, without  any  charge  to  the  said  city,  village,  town  or  township.  (April  2,  1331, 
88  v.  261.) 

§  3337-8.  MANNER  OF  ALTERING  OR  ABOLISHING  GRADE  OR  OTHER 
CROSSINGS.—  If  the  council  or  board  of  legislation  of  any  municipal  corporation  in 
which  any  railroad  or  railroads,  and  a  street  or  other  public  highway  cross  each  other 
at  grade  (or)  otherwise,  or  the  commissioners  of  any  county  in  which,  outside  of  any 
municipal  corporation,  a  railroad  or  railroads  and  any  public  road  or  highway  cross 
each  other  at  grade,  and  the  directors  of  the  railroad  company  or  companies  are  of  the 
opinion  that  the  security  and  convenience  of  the  public  require  that  alterations  shall 
be  made  in  such  crossing,  or  in  the  approaches  thereto,  or  in  the  location  of  the  rail- 
road or  railroads  or  the  public  way,  or  any  grades  thereof,  so  as  to  avoid  a  crossing 
at  grade,  or  that  such  crossing  should  be  discontinued  with  or  without  building  a 
new  way  in  substitution  therefor,  and  if  they  agree  as  to  the  alterations  which 
should  be  made,  such  alterations  may  be  made  in  the  following  manner.  (April  27, 
1893,  90  v.  359.) 

§  3337-9.  RESOLUTION  AS  TO  ALTERATION.  ETC.;  PUBLICATION  OF 
NOTICE.—  When  it  is  deemed  necessary  by  any  municipality  or  by  any  county  to 
join  with  any  railroad  company  or  companies  in  the  alteration  or  abolition  of  any 
grade  or  other  crossing,  the  council  or  board  of  legislation  of  the  municipality,  by  a 
two-thirds  vote  of  all  the  members  elected  thereto,  or  the  commissioners  of  the  county, 
by  a  unanimous  vote  of  all  the  members  thereof,  shall,  by  resolution,  declare  such 
necessity  and  intent,   and   shall  state  in  such  resolution  the  manner  in  which  the 


230  Private  Corporations  in  Ohio. 

Street  and  Highway  Crossings,  etc.,   §§  3337-10-3337-13. 

alterations  in  the  crossing  are  to  be  made,  giving  the  method  of  constructing  the  new- 
crossing  with  the  grades  for  the  railroad  or  railroads  and  the  public  way  or  ways; 
also  what  land  or  other  property  it  is  necessary  to  appropriate,  and  how  the  cost 
thereof  shall  be  apportioned  between  the  municipality  or  county  and  the  railroad 
company  or  companies;  also  by  whom  the  work  of  construction  is  to  be  done  and 
how  the  cost  thereof  shall  be  apportioned  between  the  municipality  or  county  and 
the  railroad  company  or  companies.  Such  resolution  shall  be  published  and  notice  of 
its  passage  given  to  owners  of  property  abutting  on  the  proposed  improvement  in 
the  manner  provided  in  section  2304  of  the  Revised  Statutes,  and  all  claims  for  dam- 
ages by  reason  of  such  improvement,  must  be  filed  in  the  manner  and  within  the  time 
provided  by  section  2315  of  the  Revised  Statutes.     (April  27,  1893,  90  v.  359.) 

§  3337-10.  ORDINANCE  UPON  DECISION  TO  PROCEED;  AGREEMENT 
BETWEEN  MUNICIPALITY  AND  RAILROAD  COMPANY.—  In  not  less  than  thirty 
nor  more  than  ninety  days  after  the  passage  of  the  resolution  provided  for  in  section 
two  (2)  (§  3337-9)  hereof,  the  council,  board  of  legislation  or  commissioners  shall 
determine  whether  it  or  they  will  proceed  with  the  proposed  improvement  or  not;  if 
it  is  decided  to  proceed  therewith,  an  ordinance  by  the  council  or  resolution  by  the 
commissioners  shall  be  passed,  which  ordinance  or  resolution  shall  contain,  in  addi- 
tion to  the  terms  and  conditions  stated  in  the  resolution  under  section  two  (2) 
(§  3337-9)  hereof,  the  plans  and  specifications  of  the  proposed  alteration  and  improve- 
ment, also  a  statement  of  the  damages  claimed  or  likely  to  accrue  by  reason  thereof, 
and  how  the  payment  thereof  shall  be  apportioned  between  the  municipality  or  county 
and  the  railroad  company  or  companies;  also  who  shall  supervise  the  work  of  con- 
struction. Upon  the  acceptance  of  this  resolution  or  ordinance  by  resolution  by  the 
railroad  company  or  companies  through  the  directors  thereof,  the  same  shall  consti- 
tute an  agreement  which  shall  be  valid  and  binding  on  the  municipality  or  county 
and  the  railroad  company  or  companies  respectively;  provided,  however,  that  such 
agreement  shall  be  thereupon  filed  in  the  court  of  common  pleas  of  the  county  in 
which  the  crossing  is  located,  for  entry  upon  the  records  thereof;  whereupon  it  shall 
have  the  same  force  and  effect  as  a  decree  of  the  court.     (April  27,  1893,  90  v.  359.) 

§  3337-11.  PURCHASE  OR  APPROPRIATION  OF  NECESSARY  LAND  OR 
PROPERTY. —  The  land  or  property  required  to  make  the  alteration  in  the  street  or 
highway  necessitated  by  the  proposed  improvement,  shall  be  purchased  or  appropri- 
ated by  the  municipality  or  county  after  the  manner  provided  by  law  for  the  appro- 
priation of  private  property  for  public  use,  and  the  land  or  property  required  to  make 
the  alteration  in  the  railroad  or  railroads  necessitated  by  the  proposed  improvement, 
shall  be  purchased  or  appropriated  by  the  railroad  company  or  companies  after  the 
manner  provided  for  the  appropriation  of  private  property  by  such  corporation. 
(April  27,  1893,  90  v.  359.) 

§  3337-12.  APPORTIONMENT  OF  COST.— The  cost  of  the  construction  of  the 
improvement  in  the  crossing,  including  the  cost  of  land  or  property  purchased  or 
appropriated,  and  the  payment  of  damages  to  abutting  property  shall  be  apportioned 
as  follows:  The  railroad  company  or  companies  (if  several  railroads  cross  a  public 
way  at  or  near  the  same  point)  shall  pay  not  less  than  65  per  centum  of  such  cost, 
and  the  municipality  or  county  shall  pay  not  more  than  35  per  centum  of  such  cost. 
Within  these  limits  the  apportionment  may  be  fixed  by  the  agreement  under  section 
three  (3)   (§  3337-10)  hereof.     (April  27,   1893,  90  v.  359.) 

5  3337-13.  REPAIRS. —  After  the  completion  of  the  work,  the  crossing  and  its 
approaches  shall  be  kept  in  repair  as  follows:  When  the  public  way  crosses  the  rail- 
road by  an  overhead  bridge,  the  framework  of  the  bridge  and  its  abutments  shall  be 


Railroad  Corporatio  231 

Street  and  Highway  Crossings,  etc.,   SS  3337- 11   3337-17. 

maintained  and  kept  in  repair  by  the  railroad  company,  and  the  surface  of  the  bridge 
and  its   approaches  shall  be  maintained   and  kept   in   repair   by  the  municipality 
county  in  which  the  same  are  situated.    When  the  public  way  passes  u  rail- 

road, the  bridge  and  its  abutments  shall  be  maintained  and  kept  in  repair  by 
road  company,  and  the  public  way  and  its  approaches  shall  be  maintained 
in  repair  by  the  municipality  or  county  in  which  they  are  situated.     (April  27.   1893, 
90  v.   359.) 

§  3337-14.  BONDS  AND  TAX.— For  the  purpose  of  raising  the  money  to  pay 
the  proportion  of  the  cost  of  such  improvement,  payable  by  the  municipality  or  the 
county,  the  bonds  of  the  municipality  or  the  county  may  be  issued  to  the  necessary 
amount,  which  bonds  shall  be  of  such  denomination  and  payable  at  such  place  and 
times  as  the  council  or  board  of  legislation,  or  the  commissioners  may  determine,  and 
shall  bear  interest  not  exceeding  five  per  cent,  per  annum,  and  shall  not  be  sold  for 
less  than  their  par  value.  A  tax  on  the  taxable  property  of  the  municipality  or 
county  not  exceeding  one-half  mill  in  each  year  may  be  levied  to  pay  the  principal 
and  interest  of  the  bonds  as  the  same  may  mature.  After  the  completion  of  the 
improvement,  a  tax  may  be  levied  by  the  municipality  or  county  to  pay  the  cost  of 
maintaining  and  keeping  in  repair  that  part  of  the  work  required  to  be  maintained 
and  kept  in  repair  by  it.     (April  27,    1893,  90  v.   359.) 

§  3337-15.  ASSESSMENT  AND  DETERMINATION  OF  DAMAGES.— All  claims 
for  damages,  by  reason  of  such  improvement,  filed  in  accordance  with  the  provisions 
of  section  two  (2)  (S  3337-9)  hereof,  shall  be  assessed  and  determined  in  accordance 
with  the  provisions  of  sections  2316  to  2326,  inclusive,  of  the  Revised  Statutes,  and 
either  before  commencing  or  after  the  completion  of  the  proposed  improvement,  as 
the  council  or  board  of  legislation  or  commissioners  may  decide  at  the  time  it  is  deter- 
mined to  proceed  with  the  proposed  improvement.     (April  27,   1893,  90  v.   359.) 

§  3337-16.  PENALTY. —  In  case  the  railroad  company  fails  to  comply  with  any 
provisions  of  any  agreement  entered  of  record  in  a  court  of  common  pleas,  under  this 
act,  such  court,  upon  the  application  of  a  city  solicitor  or  prosecuting  attorney,  stating 
the  nature  of  such  non-compliance,  may  make  such  orders  and  decrees  as  it  may  deem 
proper  and  just  to  enforce  the  terms  of  the  agreement  and  the  requirements  of  this 
act  on  the  part  of  the  railroad  company,  and  to  secure  its  compliance  therewith,  and 
for  such  purpose  may,  if  it  deem  the  same  necessary,  restrain  and  enjoin  the  railroad 
company  from  the  use  of  its  track  and  the  operation  of  its  railroad  on  and  over  the 
crossing  in  question,  until  it  shall  have  complied  with  the  order  and  decree  of  the 
court;  provided  that  nothing  in  this  act  shall  be  construed  to  exempt  railroad  com- 
panies from  any  obligations  or  liabilities  under  existing  statutes.  (April  27.  1893, 
90  v.  359.) 

§  3337-17.  GRADE  CROSSING  ON  COUNTY  LINE  ROAD.— When  any  grade 
crossing  is  on  a  county  line  road,  +he  commissioners  of  each  county  in  which  such 
crossing  is  situated  may  join  in  all  the  proceedings  necessary  for  the  abolition  of  such 
grade  crossing  as  provided  in  this  act,  and  that  part  of  the  cost  of  making  such 
change  in  the  crossing  and  of  keeping  the  same  in  repair  which  is  not  agreed  to  be 
paid  by  the  railroad  company  or  companies,  shall  be  paid  by  the  counties  in  equal 
proportions,  and  the  money  for  such  purpose  shall  be  raised  in  accordance  with  sec- 
tion seven  (7)  (§  3337-14)  of  this  act.     (April  27,  1893,  90  v.  359.) 

An  Act  to  Abolish   Grade  Crossings  in  Municipal  Corporatio 
Be  it  enacted  by  the  General  Assembly  of  the  State  of  Ohio: 

§  1.  GRADE  CROSSINGS  IN  MUNICIPALITIES;  MUNICIPALITIES  MAY 
ABOLISH.— Any  municipal  corporation  may  raise  or  lower,  or  cause  to  be  raised  or 
lowered,  the  grade  of  any  street  or  way  above  or  below  any  railroad  tracks  therein. 


232  Private  Corporations  in  Ohio. 


Grade  Crossings  in  Municipalities  —  Abolishing,  §  2. 


and  may  require  any  railroad  company  operating  a  railroad  in  such  municipality 
to  raise  or  lower  the  grade  of  its  tracks  and  may  construct  ways  or  crossings  above 
the  tracks  of  any  railroad,  or  require  the  railroad  company  to  construct  ways  or 
crossings  that  are  to  be  passed  under  its  tracks,  whenever,  in  the  opinion  of  the 
council,  board  of  legislation  or  other  legislative  body  the  raising  or  lowering  of  the 
grade  of  any  such  railroad  tracks,  or  the  raising  or  lowering  or  construction  of  such 
ways  or  crossing  may  be  necessary,  upon  the  terms  and  conditions  hereinafter  set 
forth  in  this  act.     (May  2,   1902,  95  v.   356.) 

§  2.  PREPARATION  OF  PLANS  AND  SPECIFICATIONS  BY  RAILROAD 
COMPANY  AND  CITY  ENGINEER. —  The  council,  board  of  legislation  or  other  legis- 
lative body  of  any  such  municipality,  for  the  purpose  of  making  or  causing  any  such 
improvement  to  be  made,  may,  by  ordinance,  require  the  railroad  company,  in  co- 
operation with  the  engineer  of  such  municipality,  or  the  engineer  designated  in  said 
ordinance  by  the  council,  board  of  legislation,  or  other  legislative  body,  to  prepare 
and  submit  to  said  council,  board  of  legislation  or  other  legislative  body,  within  six 
months,  unless  longer  time  is  mutually  agreed  upon,  plans  and  specifications  for 
such  improvement,  specifying  the  grades  to  be  established  for  the  streets,  and  the 
height,  character  and  estimated  cost  of  any  viaduct  or  any  way  above  or  below  any 
railroad  tracks,  and  the  change  of  grade  required  to  be  made  of  such  track,  including 
side  tracks  and  switches;  but  in  changing  the  grade  of  any  railroad,  nc  grade  shall 
be  required  to  exceed  the  established  maximum  or  ruling  grade  governing  the  opera- 
tions by  engines  of  that  division  or  part  of  the  railroad  on  which  the  improvement 
is  to  be  made,  without  the  consent  of  the  railroad  company,  nor  shall  the  railroad 
company's  tracks  be  required  to  be  placed  below  high  water  mark. 

PREPARATION  OF  SUCH  PLANS  AND  SPECIFICATIONS  BY  CITY  ENGI- 
NEER UPON  REFUSAL  OF  RAILROAD  COMPANY  TO  COOPERATE  IN  PRE- 
PARATION.—  If  at  the  expiration  of  said  six  months  the  railroad  company  shall 
have  refused  or  failed  to  cooperate  in  the  preparation  of  said  plans  and  specifications, 
the  engineer  of  such  municipality,  or  the  engineer  designated  by  said  council,  board  of 
legislation  or  other  legislative  body,  is  hereby  empowered  to  prepare  and  submit 
same  to  said  council,  board  of  legislation  or  other  legislative  body,  and  if  said  plans 
and  specifications  are  not  satisfactory  to  said  council,  board  of  legislation  or  other 
legislative  body  and  said  railroad  company,  and  cannot  be  made  so  by  mutual  agree- 
ment within  a  further  period  of  three  months,  and  in  the  event  that  either  the 
municipality  or  the  railroad  company  shall  not  consent  to  the  making  of  such  im- 
provements according  to  the  plans  and  specifications  submitted,  then  and  in  that 
case  said  plans  and  specifications,  together  with  the  points  of  difference  between  the 
council,  board  of  legislation  or  other  legislative  body  and  the  railroad  company 
may  be  submitted  by  either  party  to  the  circuit  court  having  jurisdiction  in  the 
county  in  which  said  municipality  is  situated,  which  court  shall,  after  examination  of 
such  plans  and  specifications,  and  after  hearing  the  evidence,  make  a  finding  as  to 
whether  or  not  the  public  safety  requires  such  improvement  to  be  made,  and  whether 
or  not  said  plans  and  specifications  are  reasonable  and  practicable;  and  if  such 
court  finds  such  improvement  is  necessary  to  the  public  safety,  and  that  the  plans 
are  reasonable  and  practicable,  the  municipality  shall  be  required  to  make  such  im- 
provements to  its  streets  as  may  be  necessary,  and  the  railroad  company  be  required 
to  make  the  changes  necessary  to  its  tracks  and  road  bed,  in  order  to  comply  with 
the  rulings  of  the  court;  but  if  the  court  finds  that  the  improvement  is  not  necessary 
to  the  public  safety,  or  that  the  plans  and  specifications  are  not  reasonable  and  prac- 
ticable, then  the  improvement  shall  not  be  made  upon  said  plans.  And  if  more 
than  one  railroad  company  owns  tracks  on  the  crossing  in  question,  then  the  said 
circuit  court  shall  apportion  the  part  of  the  expense  payable  by  the  railroad  com- 
panies   between   or  among   the  said  railroad  companies.     The  word   "  company  "   in 


K.M  LR<  >AD    *    ORPOR  Ml"  233 


Grade  Crossings  in  Municipalities  —  Abolishing, 


this  act  is  intended  to  include  also  the  words  "company   or   CO 
1902,  95  v.  357.) 

§  3.  APPORTIONMENT  OF  COST  BETWEEN  CITY  AND  RAILROAD  COM- 
PANY.—  The  cost  of  the  construction  of  the  improvement  authorized,  Lnclu 
making  of  ways,  crossings  or  viaducts,  above  or  below  the  railroad  tracks,  and  also 
including  the  raising  or  lowering  of  the  grades  of  the  railroad  tracks  and  side  tn 
for  such  distance  as  may  be  required  by  such  municipality  and  made  necessary  by 
such  improvement,  together  with  the  cost  of  any  land  or  property  purchased  or 
appropriated,  and  damages  to  owners  of  abutting  property,  or  other  property,  shall 
be  borne  one-half  by  any  such  municipality  and  one-half  by  any  such  railroad  com- 
pany or  companies;  and  any  such  municipality  shall  have  the  ri<rht  of  action  against 
any  such  railroad  company  for  the  recovery  of  the  one-half  of  such  costs  payable 
by  such  railroad  company  with  interest  from  the  time  they  become  due;  land)  any 
such  municipality  and  railroad  company  may  agree  as  to  what  part  of  such  work 
shall  be  done  by  such  railroad  company,  and  also  fix  the  amount  which  shall  be 
allowed  or  credited  to  such  railroad  company  for  doing  such  work;  and  such  railroad 
company  shall  be  entitled  to  deduct  from  half  of  the  cost  of  such  improvement  the 
expense  and  costs  incurred  by  it  in  the  change  of  its  grade  required  by  such  munici- 
pality or  made  necessary  by  such  improvement  under  such  specifications,  but  only 
.in  case  the  amount  of  such  cost  and  expense  has  been  agreed  upon  in  writing  between 
the  municipality  and  the  railroad  company,  and  if  the  amount  of  work  that  may  be 
done  by  the  railroad  company,  or  made  necessary  by  reason  of  such  change  of  grade 
on  lowering  or  raising  its  tracks,  exceeds  one-half  of  the  cost  of  the  improvement, 
then  such  railroad  company  shall  have  the  right  to  recover  the  amount  with  interest 
in  excess  of  one-half  the  costs  and  expenses,  in  an  action  at  law  against  such  munici- 
pality.    (May  2,  1902,  95  v.  358.) 

§  4.  HEIGHT  OF  VIADUCTS. —  Any  way,  crossing  or  viaduct  so  constructed 
over  any  railroad  track  or  tracks  in  any  municipality  shall  be  of  such  height  as  not  to 
be  less  than  twenty-one  feet  in  the  clear  from  the  top  surface  of  the  rails  of  the 
railroad  track  to  the  lowest  point  or  projection  of  such  overhead  way.  crossing  or  via 
duct,  unless  such  company  shall  consent  to  or  the  circuit  court  order  a  less  height, 
but  in  no  event  shall  said  circuit  court  order  a  less  height  than  16  feet  and  three 
inches.     (May  2,   1902,  95  v.  358.) 

§  5.  HOW  NECESSARY  LAND  ACQUIRED.—  The  land  or  property  required  to 
make  any  alterations  in  the  street  or  highway  necessitated  by  the  proposed  improve- 
ment shall  be  purchased  or  appropriated  by  the  municipality  or  company  after  the 
manner  provided  by  law  for  the  appropriation  of  private  property  for  public  use.  and 
the  land  or  property  required  to  make  any  alteration  in  the  raihoad  or  railroads 
necessitated  by  the  proposed  improvement  shall  be  purchased  or  appropriated  by  the 
railroad  company  or  companies  after  the  manner  provided  for  the  appropriation  of 
private  property  by  such  corporation;  but  the  municipality  shall  not  appropriate 
land  held  or  owned  by  any  railroad  company  necessary  for  the  use  of  such  railroad 
company  in  maintaining  and  operating  its  road.     (May  2.  1902,  95  v.  358.) 

§  6.  COST  OF  MAINTENANCE,  HOW  BORNE.— After  the  completion  of  the 
work  the  crossings  and  the  approaches  shall  be  kept  in  repair  as  follows:  When 
the  public  way  crosses  a  railroad  by  an  overhead  bridge,  the  cost  of  maintenance 
shall  be  borne  by  the  municipality.  When  the  public  way  passes  under  the  ra 
road  the  bridge  and  its  abutments  shall  be  kept  and  maintained  by  the  railroad 
company,  and  the  public  way  and  its  approaches  shall  be  maintained  and  kept  in 
repair  by  the  municipality  in  which  they  are  situated.     (May  2.  1902.  95  v.  359.) 

§  7.  BOND  ISSUE  TO  PAY  CITY'S  SHARE  OF  SUCH  IMPROVEMENT.- For 
the  purpose  of  raising  the  money  to  pay  the  proportion  of  the  cost  of  such  improve- 


234  Private  Corporations  in  Ohio. 


Grade  Crossings  in  Municipalities,  etc.,   §§   8-3337-18. 


ment  payable  by  the  municipality,  the  bonds  of  the  municipality  may  be  issued  to 
the  necessary  amount,  which  bonds  shall  be  of  such  denomination  and  payable  at 
such  place  and  times  as  the  council,  board  of  legislation  or  other  legislative  body  may 
determine,  and  shall  bear  interest  not  exceeding  four  per  cent  per  annum,  and  shall 
not  be  sold  for  le~s  than  their  par  value.  A  tax  on  the  taxable  property  of  the 
municipality  in  addition  to  all  other  levies  now  allowed  by  law  may  be  levied  to  pay 
the  principal  and  interest  of  the  bonds  as  the  same  may  mature.  After  the  com- 
pletion of  the  improvement  a  tax  in  addition  to  all  other  levies  allowed  by  law  may 
bo  levied  by  the  municipality  to  pay  the  cost  of  maintaining  and  keeping  in  repair 
that  part  of  the  work  required  to  be  maintained  and  kept  in  repair  by  said  munici- 
pality.    (May  2,  1902,  95  v.  359.) 

§  8.  STREET  RAILWAY  COMPANIES  TO  BEAR  SHARE  OE  EXPENSE  OF 
MAKING  SUCH  IMPROVEMENTS. —  In  case  the  track  or  tracks  of  any  street  rail- 
way company  or  companies  within  the  limits  of  any  municipality  where  the  improve- 
ments authorized  by  this  act  are  made  shall  cross  at  grade  or  otherwise  a  public 
street  or  the  right  of  way  of  any  railroad  company  or  companies  at  a  point  where,  , 
under  the  plans  and  specifications  provided  for  in  this  act,  it  has  been  determined 
to  construct  the  said  improvements,  the  municipality  shall  have  power  by  ordinance 
to  require  such  street  railway  company  or  companies  to  bear  a  fair  and  reasonable 
proportion  of  the  cost  assumed  by  said  municipality  in  the  making  of  said  improve- 
ment, not  exceeding  one-half  the  portion  payable  by  said  municipality;  provided 
however,  that  said  street  railway  company  or  companies  shall  keep  in  repair  at  its 
or  their  own  expense  all  tracks  affected  by  such  improvement  and  all  construction 
work  of  whatever  character  which  may  be  necessary  to  support  such  tracks.  (May  2, 
1902,  95  v.   359.) 

§  9.  REPEALS.—  All  acts  and  parts  of  acts  in  conflict  or  inconsistent  with  this 
act  are  hereby  repealed.      (May  2,    1902,  95  v.  359.) 

§    10.     This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage.    (May 
2,    1902,  95  v.  356.) 

§  3337-18.  REQUIRED  HEIGHT  OF  BRIDGES,  ETC.,  OVER  RAILROAD 
TRACKS  —  COST. —  All  bridges,  viaducts,  overhead  roadways  or  foot-bridges,  wire 
or  other  structure  hereafter  constructed  over  the  track  or  tracks  of  any  railroad  or 
railroads  within  the  state  of  Ohio,  by  any  county,  municipality,  township,  railroad 
compary,  or  other  private  corporation  or  person  shall  be  of  such  height  as  to  be  not 
less  than  twenty-one  feet  in  the  clear  from  the  top  of  the  rails  of  said  track  or  tracks, 
to  said  wire  and  other  structure  or  to  the  bottom  of  the  lowest  sill,  girder  or  cross- 
beam, and  the  lowest  downward  projection  on  such  bridge,  viaduct,  overhead  road- 
way or  foot-bridge,  except  in  cases  where  the  commissioner  of  railroads  and  telegraphs 
shall  find  such  construction  is  impracticable,  and  in  every  such  case  said  commis- 
sioner shall  file  a  written  statement  in  his  office  setting  forth  the  facts,  relied  upon 
by  him  in  making  such  finding.  But  this  provision  shall  not  apply  to  any  main  track. 
Provided,  that  where  any  bridge,  viaduct,  overhead  roadway  or  foot-bridge  over  a 
railroad  track  or  tracks  is  rebuilt,  it  shall  be  brought  under  the  provisions  of  this 
act,  and  in  such  case,  if  said  structure  is  at,  or  in  line  of,  a  public  street  or  highway, 
and  is  thus  erected  above  the  grade  of  any  such  street  or  highway  and  any  cross-street 
or  streets,  the  cost  of  making  such  street  or  streets  or  highway  or  highways  conform 
to  such  new  grade,  and  all  damages  to  owners  of  property  abutting  on  such  street  or 
streets,  highway  or  highways,  because  of  such  change  of  grade,  shall  be  ascertained 
and  determined,  and  paid  as  follows:  Said  or  any  railroad  company  or  its  assigns 
shall  pay  all  costs  or  damages  resulting  as  aforesaid,  from  the  raising  or  building  of 
any  of  its  bridges  or  structures,  as  aforesaid,  in  the  line  of  any  street  or  highway  at 


I\.\l  LROAD    (  lORPOK  \  ClONS. 


235 


Bridges,  etc.,  over  Railroads  —  Tracks,  etc.,   >x  3337-i:»  3340. 


a  greater  height  than  before  the  passage  hereof;  and  if  such  company  is   only  part 
owner  of  any  such  structure  it  shall  pay  its  proportionate  share  of  the  cos- 
change  of  grade  and  damages.     Should  a  railroad  company,  or  its  assigns, 
grade  of  its  track  or  tracks  under  any  of  said  structures  not  owned  by   it 
passage   of   this  act,   thereby   causing   any  said   bridge   or  structure   to   be   put   at   a 
higher  grade  when  rebuilt,  said  company  shall  pay  all  costs  and  damages  as  afore- 
said made  necessary  thereby.     (May  21,  1894,  91  v.  365;  April  16,  1900,  94  v.  207.) 


Jurisdiction    of    commissioner    of    rail- 
roads. 

The  jurisdiction  of  the  commissioner  of  rail- 
toads  extends  under  this  aet  to  regulating  the 
overhead  structures  in  city  street  railway 
crossings,  independent  of  any  interlocking  de- 


\  ice  connected   t  h<  rev  ith.      <  'pinion  of  Attj  • 

Gen.,  39  W.  I..   I;.   I  15 

Duty  of  railroad  to  employees. 

See   Lake  Shore,  <  tc,   Ry.  I  'o.  v.  Shook,   16 
0.  C.  C.  665   (  1895)  ;  s.  c,  9  C.  I'.  9. 


§  3337-19.  ENFORCEMENT  OF  ACT;  PENALTY;  INJUNCTION  — It  is  hereby 
made  the  duty  of  the  commissioner  of  railroads  (and)  telegraphs  to  see  that  the 
provisions  of  this  act  are  carried  into  effect;  and  every  railroad  company  in  the 
state  of  Ohio,  public  or  private  corporation,  or  person  building,  or  permitting  to  be 
built,  any  bridge,  viaduct,  overhead  roadway  or  foot-bridge,  or  wire  and  other  struc- 
ture as  specified  in  section  one  (S  3337-18)  of  this  act,  shall  file  with  the  said  com- 
missioner plans  and  specifications,  and  first  receive  from  him  a  permit  before  being 
allowed  to  proceed  with  said  structure  and  the  erection  of  said  wire.  Any  person, 
corporation,  public  or  private,  violating  the  provisions  of  this  act.  upon  conviction 
before  a  court  of  competent  jurisdiction,  shall  be  fined  any  sum  not  less  than  one 
hundred  nor  more  than  one  thousand  dollars;  and  every  day  that  said  structure  or 
wire,  not  in  conformity  with  the  provisions  of  this  act.  is  permitted  to  remain,  shall 
constitute  a  separate  offense.  The  observance  of  the  provisions  of  this  act  may  be 
enforced  by  injunction  on  complaint  of  any  person,  corporation  or  board  interested 
therein.     (May  21,  1894,  91  v.  365.) 

§  3338.  WHOLE  TRACK  TO  BE  OF  UNIFORN  GAUGE,  CONNECTIONS  — 
Every  company  shall  make  every  railroad  constructed  or  controlled  by  it  of  one  uni- 
form gauge  or  width  of  track  from  end  to  end;  when  any  road  connects  with  or  crosses 
any  other  road,  the  companies  owning  or  controlling  such  roads  may  adopt  such  uni- 
form gauge  or  width  of  track  as  will  enable  each  company  to  pass  its  cars  over  the 
road  of  the  other;  and  in  case  roads  so  connecting  or  crossing  are  constructed  of  dif- 
ferent gauges  or  widths  of  track,  the  companies  controlling  the  same  may  lay  down 
and  maintain,  upon  the  whole  or  any  portion  of  such  road  or  roads,  an  additional 
rail  or  rails,  so  as  to  admit  the  passage  of  the  same  cars  over  both  roads,  and  may 
also  maintain  and  operate  either  or  both  of  such  roads,  upon  the  track  or  tracks 
originally  constructed,  as  may  be  deemed  expedient  by  the  company  or  companies 
owning  or  controlling  either  or  both  of  the  roads.     (April  3.  1866.  63  v.  88.  g    1   I 


§  3339.  WHEN  TRACKS  MUST  BE  USED  IN  COMMON.—  When  two  or  more 
companies  have,  in  the  same  street,  alley,  public  way.  or  opening,  two  or  more  tracks 
of  the  same  gauge,  through  a  city  or  village,  the  council  of  such  city  or  village  may 
rea_uire  such  companies  to  use  such  tracks  in  common,  and  to  pass  their  locomotives 
and  cars  over  each  track  in  one  direction  only.     (April  15.  1857,  54  v.  133.  *  4.) 

§  3340.  WHEN  CONNECTIONS  MUST  BE  MADE.—  When  the  track  of  a  com- 
pany crosses,  connects  or  intersects  the  track  of  the  same  gauge  of  another  company, 
either  company  may  connect  the  tracks  of  the  two  roads  so  crossing,  connecting  or 
intersecting  so  as  to  admit  the  passage  of  cars  from  one  road  to  another  with  facility, 
and  avoid  the  necessity  of  transferring  freights  from  said  car.  And  when  the  tracks 
of  one  company  lie  contiguous  to  coal  mines,  stone  quarries,  manufacturing  establish- 


236 


Private  Corporations  in  Ohio. 


Transporting  Cars  of  Other  Companies  —  Water-ways,   S§  3341-3342. 


rnents,  elevators,  warehouses,  navigable  waters  or  side  tracks,  suitable  for  loading 
or  unloading,  it  shall  be  the  duty  of  such  company  to  switch  the  cars  of  other  com- 
panies, at  the  request  of  such  companies,  or  the  shippers,  over  and  upon  the  tracks 
so  lying  by  such  coal  mines,  stone  quarries,  manufacturing  establishments,  elevators, 
warehouses,  navigable  waters  or  side  tracks,  for  the  purpose  of  unloading  or  loading 
grain  or  other  freight  into  or  from  such  elevators,  warehouses,  boats  upon  said  navi- 
gable waters,  or  side  tracks,  without  demurrage  for  forty-eight  hours.  (April  15, 
1857,   54  v.   133,  §   5;  February  24,   1891,  88  v.  45.) 


Penalty. 

A  penalty  for  violating  this  act  is  imposed 
by  <  3376.—  Chicago,  etc.,  R.  R.  Co.  v.  Suffern, 
129   111.  274    (1SS9). 


Enforcement  of  duty. 

See  Chicago,  etc.,  R.  R. 
111.  274    (1889). 


Co.  v.   Suffern,   129 


§  3341.  WHEN  COMPANIES  MUST  TRANSPORT  CARS  OF  OTHER  COM- 
PANIES; RATES  FOR  SWITCHING  CARS. —  Whan  the  tracks  of  two  companies 
are  connected  as  aforesaid,  either  company  shall,  when  required,  transport  over  its 
road  to  its  destination  thereon,  any  freight  offered,  in  the  cars  in  which  it  is  offered, 
at  its  local  rates  per  mile  as  set  forth  in  the  company's  freight  tariff  for  the  distance 
most  nearly  corresponding,  and  (to)  return  the  cars,  with  or  without  freight,  without 
unnecessary  delay;  and  any  company  owning  a  track  or  tracks  lying  contiguous  to 
coal  mines,  stone  quarries,  manufacturing  establishments,  elevators,  warehouses, 
navigable  waters  or  side-tracks  as  aforesaid,  and  within  the  proper  terminal  limits  of 
or  about  any  city  or  village,  shall  be  entitled  to  receive  from  the  company  whose  cars 
are  so  switched,  loaded  and  unloaded  at  such  coal  minus,  stone  quarries,  manufactur- 
ing establishments,  elevators,  warehouses,  navigable  waters  or  side-tracks,  no  more 
than  one  dollar  per  car  for  switching  one-half  mile  or  less  on  such  tracks;  for  all  dis- 
tances over  one-half  mile,  and  not  exceeding  two  ?.nd  one-half  miles,  such  charge 
shall  not  exceed  one  dollar  and  fifty  cents  per  car;  and  for  all  distances  over  two  and 
one-half  miles  and  not  exceeding  five  miles,  the  charge  shall  not  be  more  than  two 
dollars  per  car;  and  for  all  distances  of  more  than  five  miles  the  charge  shall  not  be 
more  than  three  dollars  per  car;  and  when  such  service  is  on  the  roads  of  two  or 
more  companies,  then  the  aforesaid  charges  shall  be  divided  between  said  companies 
in  proportion  to  the  distances  of  each  road;  provided,  however,  that  each  company 
shall  be  entitled  to  at  least  one  dollar  for  such  service,  regardless  of  distance,  and 
there  shall  be  no  charge  for  returning  empty  cars  from  said  coal  mines,  stone  quarries, 
manufacturing  establishments,  elevators,  warehouses,  navigable  waters  or  side-tracks; 
and  any  such  company  shall  be  entitled  to  perform  the  service  or  do  the  switching 
work,  herein  provided  for,  in  the  daytime;  and  whatever  private  side-tracks  are  now, 
or  may  hereafter  be  constructed,  it  shall  be  the  duty  of  the  company  to  switch  cars 
thereon  at  the  rates  herein  specified;  and  the  distance  provided  for  in  this  section 
shall  be  computed  from  the  general  freight  warehouse  in  such  city  or  village,  and 
from  the  siding  used  for  the  storage  of  cars  nearest  to  where  they  may  be  required, 
outside  municipalities;  provided  further,  that  nothing  herein  contained  shall  require 
any  railway  or  railroad  company  now  in  operation  to  furnish  its  terminals  and  facili- 
ties at  the  rates  herein  named,  to  any  similar  company  for  any  railroad  to  be  built 
by  it  hereafter  which  shall  not  afford  similar  terminals  and  reciprocal  facilities. 
(April  15.  1857,  54  v.  133,  §  7;  February  24,  1891,  83  v.  45;  April  18,  1892, 
89  v.  369.) 

Penalty. 

A  penalty  for  violating  this  act  is  imposed  by  §  3370. 


§  3342.  WAYS  FOR  WATER  MUST  BE  PROVIDED.—  There  shall  be  con- 
structed and  kept  open,  along  the  road-bed  of  every  railroad,  except  where  the  road 
extends  through  or  by  swamp  land,  by  the  company  or  person  operating  the  road, 


K.\l  LROAD    <  iORPORAl  [( 


237 


Water-ways  along  Road,  etc.,    .      3343  3346. 


ditches  or  drains  of  sufficient  depth,  width,  and  grade  to  conduct  to  some  proper  out- 
let the  water  which  accumulates  along  the  sides  of  such  road-bed  from  the  construc- 
tion or  operation  of  such  road.     (May  7,   1869,  66  v.  335,   |    I.) 


Ditch  assessments. 

Only  the  company  owning  the  railroad,  and 
not  Hit!  lessees  thereof,  can  l»'  subjected  i" 
ditch  assessments. —  Baltimore,  etc.,  I:.  R. 
Co.  v.  Pausch,  35  W.  L.  13.  1   (18%). 


Agreement  to  maintain  ditch. 

See    Madden   v.   Railway  •  o 

Specific     performance     of    contract     for 

waterway. 

See  Bell  \.  Dayton,  etc.,  B    1:    ' 
C.  :M    (1887);  8.  c.,  2  C.  I'.   19. 

§  3343.  PROCEEDINGS  TO  ENFORCE  PRECEDING  SECTION.— If,  after  ten 
days'  notice  or  request  to  any  ticket  or  other  agent  of  the  company  or  person  operat- 
ing a  railroad,  to  provide  such  drain  or  ditch,  preferred  by  the  person  authorized  to 
institute  the  proceedings  hereinafter  provided  for,  the  provisions  of  the  foregoing 
section  be  not  complied  with,  any  owner  or  tenant  of  land  contiguous  to  such  railroad 
feeling  aggrieved  by  such  neglect  may  give  notice  of  the  fact,  in  writing,  to  the  pro- 
bate judge  of  the  county  in  which  such  neglect  occurs,  designating  in  such  notice  the 
place  or  places  on  such  road  where  such  drains  or  ditches  have  not  been  made;  and 
upon  the  receipt  of  such  notice  the  probate  judge  shall  appoint  a  commission,  of  three 
disinterested  freeholders  of  such  county,  who  together  with  the  county  surveyor, 
shall  proceed  to  the  place  designated  in  the  notice,  and,  if  upon  inspection,  it  is  found 
that  the  provisions  of  the  preceding  section  are  not  complied  with,  the  commission 
or  a  majority  thereof,  shall  report  the  same  to  such  probate  judge,  who  shall  keep  a 
record  of  such  proceedings;  and  the  probate  judge  shall  designate  a  time  within 
which  such  ditches  or  drains  shall  be  made  or  opened  and  shall  forthwith  notify  the 
company  or  person  operating  such  road,  in  writing,  whose  duty  it  shall  be  to  make 
or  open  such  ditches  or  dx-ains  within  the  time  specified.  (May  7.  1869.  66  v. 
335,  §  2.) 

§  3344.  WHEN  THE  PROBATE  JUDGE  MAY  LET  THE  WORK.— If  such 
company  or  person  neglect  to  comply  with  the  notification  of  the  probate  judge,  he 
shall  forthwith,  by  advertisement  for  three  consecutive  weeks,  in  one  or  more  of  the 
weekly  newspapers  published  in  such  county,  give  notice  that  the  work  of  making 
or  opening  the  ditches  or  drains  will  be  let  to  the  lowest  bidder  at  such  time  and  place 
as  shall  be  designated  in  the  advertisement.     (May  7,  1869,  66  v.  335.  g  3.) 

§  3345.  SALE  OF  THE  WORK,  AND  PROCEEDINGS  THEREON.— The  pro- 
bate judge  shall,  at  the  time  and  place  specified  in  the  advertisement,  sell  the  job  or 
jobs  of  making  or  opening  such  ditches  or  drains  to  the  lowest  bidder,  and  take  from 
such  bidder  a  sufficient  bond,  with  surety,  for  the  performance  thereof,  and  upon  the 
completion  thereof  to  the  satisfaction  of  the  probate  judge,  he  shall  give  the  bidder  a 
certificate  therefor,  stating  the  amount  due  for  the  work;  and  upon  presentation  of 
the  certificate  to  the  auditor  of  the  county,  he  shall  place  the  amount  so  certified 
forthwith  upon  the  tax  duplicate  of  the  county,  against  the  company,  together  with 
all  the  costs  and  expenses  for  inspection  by  the  commission  and  surveyor,  notices, 
advertisements,  sale  of  work,  making  contract  therefor,  approval  of  the  work,  and 
other  costs,  and  interest  on  the  amount  certified  to  be  due  for  the  work  from  the  time 
the  work  is  approved  until  the  amount  can  be  collected  by  the  treasurer  of  the  county; 
and  such  tax  shall  be  collected  as  other  taxes,  and  be  paid  to  the  persons  entitled 
thereto  on  the  warrant  of  the  county  auditor  on  the  county  treasurer.  (May  7.  1860. 
66  v.  335,  §  4.) 

§  3346.  FEES  OF  OFFICERS  IN  SUCH  CASES.— The  probate  judge,  commis- 
sioners, and  surveyor  shall  be  entitled  to  receive  for  their-  services  such  costs,  fees 


238  Private  Corporations  in  Ohio. 


Regulations  as  to  Passenger  Cars,  §§  3347-3354. 


and  expenses  as  are  provided  by  law  for  costs,  fees,  and  expenses  of  county  commis- 
sioners and  others  under  proceedings  relating  to  ditches.  (May  7,  1869,  66  v.  335, 
§  5.) 

§  3347.  MOVABLE  BRIDGE  BETWEEN  PASSENGER  CARS  REQUIRED.— 
Eve:y  company  conveying  passengers  stall  provide  the  passenger  cars  in  its  trains 
with  a  flexible  or  movable  bridge  or  apron,  of  the  full  width  of  the  opening  between 
the  railings  attached  to  the  platforms  of  such  cars,  with  side-boards  or  net-work  of 
strap  iron  or  large  wire,  or  other  suitable  material,  at  each  side  of  the  bridge  or  apron, 
of  at  least  equal  height  with  the  ordinary  railings  upon  the  platforms,  or  some  other 
apparatus  or  arrangement  equally  efficient  to  enable  passengers  to  pass  from  car  to 
car  with  safety.     (March  10,  1871,  68  v.  35,  §   1.) 

§  3348.  PENALTIES  FOR  VIOLATION  OF  PRECEDING  SECTION.— A  com- 
pany which  fails  to  comply  with  the  provisions  of  the  preceding  section  shall  be  sub- 
ject to  a  penalty  of  one  hundred  dollars  for  each  and  every  day  of  such  failure,  to  be 
recovered  in  a  civil  action,  in  the  name  of  the  state,  and  paid  into  the  state  treasury. 
(March  10,  1871,  68  v.  35,  §  2.) 

§  3349.  WHEN  TWO  PRECEDING  SECTIONS  DO  NOT  APPLY.—  Nothing  con- 
tained in  the  two  preceding  sections  shall  require  any  company  to  provide  an  apron  or 
bridge  between  the  platform  of  a  freight  car  and  the  platform  of  the  passenger  car 
attached  to  a  freight  train.     (March  10,   1871,  68  v.  35,  §  3.) 

§  3350.  COMMISSIONER  OF  RAILROADS  MUST  ENFORCE  CERTAIN  SEC- 
TIONS.—  The  commissioner  of  railroads  and  telegraphs  shall  see  that  the  provisions 
of  sections  thirty-three  hundred  and  forty-seven  and  thirty-three  hundred  and  forty- 
eight  are  enforced.     (March  10,   1871,  68  v.  35,  §  4.) 

§  3351.  HEATING  APPARATUS  FOR  CARS.— Each  railroad  company  in  this 
state  shall,  when  necessary  to  heat  any  of  its  cars  for  carrying  passengers,  mail, 
baggage  or  express  matter,  do  so  by  a  stove  or  heater  so  constructed  and  protected 
as  to  most  effectually  guard  the  passengers  against  the  danger  by  fire,  in  case  of 
accident  by  collision,  or  the  cars  being  overturned  or  thrown  from  the  track,  and  it 
shall  be  unlawful  for  any  such  company  to  permit  any  other  person  or  corporation  to 
use  cars  carrying  passengers,  mail,  baggage  or  express  matter  over  its  road  unless 
the  heating  apparatus  thereof  shall  conform  to  the  requirements  of  this  section. 
(May  4,  1869,  66  v.  94,  §  1;  R.  S.   1880;  April  14,  1880,  77  v.  202.) 

Penalty.  Constitutionality. 

See  §  3354  See  People  v.  New  York,  etc.,  R.  R.  Co.,  55 

Hun   (N.  Y.),  409   (1890). 

§  3353.  HOW  PASSENGER  CARS  TO  BE  LIGHTED. —  No  passenger  cars  on  any 
railroad  shall  be  lighted  by  naphtha,  or  any  illuminating  oil  fluid  made  in  part  from 
naphtha,  or  wholly  or  in  part  from  coal  or  petroleum,  or  other  substance  or  material 
which  will  ignite  at  a  temperature  of  less  than  three  hundred  degrees  Fahrenheit; 
and  the  commissioner  of  railroads  and  telegraphs,  by  himself  or  agent,  may,  at  any 
time,  enter  the  cars  running  on  any  railroad  and  take  from  any  lamp  therein  samples 
of  the  oil  found  there,  for  the  purpose  of  testing  the  same,  and  if  it  proves  of  a  lower 
grade  than  is  required  by  the  provisions  of  this  section,  he  shall  bring  suit  for  the 
penalty  provided  in  section  thirty-three  hundred  and  fifty-four.  (May  7,  1877,  74  v. 
207,  §  2.) 

§  3354.  PENALTIES  FOR  VIOLATING  CERTAIN  SECTIONS.— Any  railroad 
company  refusing  or  neglecting  to  comply  with  the  provisions  of  section  three  thou- 
sand three  hundred  and  fifty-one,  shall  be  liable  to  a  penalty  of  not  less  than  one 
hundred,  nor  over  five  hundred  dollars,  to  be  recovered  in  a  civil  action  in  any  court 


R.\I  LROAD  <  lORPORAl  [ONS.  239 


Regulations  as  to  Station  Platforms,  Passenger  Cars,  etc.,         3354    1    3 


of  record  in  any  county  through  which  such  road  shall  pass,  in  the  name  of  the  11 
of  Ohio  for  the  benefit  of  the  common  schools  of  the  state,  to  be  prosecuted   \,y  the 
prosecuting  attorney  of  the  proper  county,  at  the  instance  of  the  prosecm 
or  at  the  instance  of  the  railroad  commissioner,  as  provided  by  law   (sec.  2< 
St.)  in  other  cases  for  the  recovery  of  penalties  and  forfeitures  against  railroad  I 
panies,  after  due  notice  given  by  such  railroad  commissioner  to  the  president  or  m 
aging  officer   of  such  delinquent  railroad   company,   and  its  neglect  thereafter  for  a 
period  of  thirty  days  to  comply  with  the  provisions  of  said  section;  the  prosecir 
attorney  to  receive  twenty-five  (25)  per  cent,   of  all  fines   and  costs  collected  under 
the  provisions  of  this  act.     (April   14,    1880,   77  v.   202;  R.   S.    1880;  May  4.    1869, 
66  v.  94,  §  4.) 

j  §  3354-1.  REGULATING  DISTANCE  FROM  STATION  PLATFORM  TO  TOP 
OF  LOWEST  STEP  ON  PASSENGER  CARS;  PENALTY.— It  shall  be  the  duty  of 
all  railroad  companies,  and  of  all  persons  operating  a  railroad  in  this  state,  on  and 
after  October  1st,  after  the  passage  of  this  act,  to  so  regulate  the  rise  from  the  station 
floor  or  platform  to  the  top  of  the  lowest  step  on  passenger  cars  that  it  shall  not  be 
necessary  to  rise  more  than  twelve  inches  in  one  step.  Where  the  rise  in  one  step  now 
exceeds  twelve  inches,  the  relation  between  said  car  step  and  the  station  platform  or 
floor  must  be  changed  not  to  exceed  twelve  inches  or  safe  portable  or  stationary  steps 
provided  that  will  make  said  rise  within  the  required  limit.  Any  railroad  failing  to 
comply  with  the  provisions  of  this  act  shall  pay  a  penalty  not  less  than  S50.00  nor 
more  than  $500  for  each  and  every  violation;  and  it  is  hereby  made  the  duty  of  the 
prosecuting  attorney  of  the  county  in  which  the  violation  occurs,  to  immediately  com- 
mence suit  against  the  railroad  violating  the  same,  upon  the  written  complaint  of  any 
citizen;  and  in  case  personal  injury  results  from  the  violation  of  this  act,  in  addition 
to  the  liability  for  damages,  the  party  in  charge  of  the  operation  and  management 
of  the  road  shall  be  deemed  to  be  guilty  of  a  misdemeanor,  and  shall  be  fined  not  less 
than  fifty  dollars  nor  more  than  five  hundred  dollars.     (April  16,  1892,  89  v.  347.) 

§  3354-2.  EQUIPMENT  OF  PASSENGER-TRAINS  WITH  FIRE-EXTIN- 
GUISHERS; COST. —  Every  person,  company  or  corporation,  operating  a  railroad,  or 
railroads,  in  whole  or  in  part  in  this  state,  shall  be  required,  within  one  year  from 
the  passage  of  this  act,  to  carry,  on  every  passenger-train  operated  within  and 
throughout  this  state,  as  a  part  of  the  equipment  of  said  train,  at  least  one  portable 
chemical  fire-extinguisher  for  the  purpose  of  protecting  the  lives  of  its  passengers 
and  employes  from  fire,  and  that  one  portable  chemical  fire-extinguisher  shall  be 
added  each  year  thereafter  to  every  train  operated  until  every  passenger-coach  com- 
prising the  train  of  passenger  cars  run  on  any  of  the  railroads  of  this  state  shall  be 
supplied  with  a  portable  chemical  fire-extinguisher  as  a  part  of  the  equipment  of 
said  cars;  provided  that  said  extinguishers  can  be  procured  at  a  cost  not  exceeding 
fifteen  dollars  each.     (April  27,   1896,  92  v.  396.) 

§  3354-3.  SIZE,  ETC.,  OF  EXTINGUISHERS.—  That  the  said  fire-extinguishers 
shall  be  of  sufficint  size,  durability,  mechanical  construction  and  able  to  withstand 
such  pressure  as  will  make  it  an  eflicient  fire-extinguisher,  provided  that  such  extin- 
guisher shall  first  be  approved  by  the  commissioner  of  railroads  and  telegraphs  and 
such  different  makes  of  extinguishers,  as  shall  come  within  the  requirements  of  this 
act,  shall  be  approved  by  him,  and  his  discretion  relative  to  the  approval  thereof, 
shall  be  exercised  in  such  a  way  as  to  invite  and  encourage  the  most  extended  com- 
petition.    (April  27,  1896,  92  v.  396.) 

§  3354-4.  DESIGNATION  OF  CARS  ON  WHICH  EXTINGUISHERS  TO  BE 
PLACED,  AND  PLACE  AND  MANNER  OF  ATTACHMENT:  PENALTY.- It  shall 
be  the  duty  of  the  commissioner  of  railroads  and  telegraphs  of  this  state  to  designate 


240  Private  Corporations  in  Ohio. 

Telegraph  Line,  etc.— Private  Freight-ways,  SS  3354-5-3355. 

on  which  car  of  wery  passenger-train  the  first,  and  every  subsequent  extinguisher 
shall  be  placed,  until  each  coach  of  every  train  shall  be  fully  supplied  according  to 
the  provisions  of  this  act.  It  shall  be  the  duty  of  said  commissioner  of  railroads  and 
telegraphs  to  determine  where,  in  such  coach  said  extinguisher  shall  be  placed  and 
how  attached,  but  in  all  cases,  it  shall  be  so  attached  as  to  be  easy  of  access  in  case  of 
emergency  or  necessity.  It  is  hereby  made  the  duty  of  said  commissioner  of  railroads 
and  telegraphs  to  see  that  the  provisions  of  this  act  are  carried  into  effect.  Any  per- 
son, company  or  corporation  mentioned  in  section  1  of  this  act,  violating  any  of  the 
provisions  of  this  act,  upon  conviction  in  any  court  of  competent  jurisdiction  shall  be 
fined  not  less  than  twenty-five  dollars  nor  more  than  one  hundred  dollars,  and  every 
day  that  said  above  named  persons,  company  or  corporation  run  their  trains  in  vio- 
lation of  the  provisions  of  this  act  shall  be  construed  to  constitute  a  separate  offense. 
(April  27,   1896,  92  v.  396.) 

§  3354-5.  §  1.  RAILROAD  COMPANIES  TO  ERECT  AND  MAINTAIN  TELE- 
GRAPH OR  TELEPHONE  WIRES. —  Every  steam  railway  company  operating  ten 
miles  or  more  of  its  railroad  for  the  carrying  or  transportation  of  passengers  and 
freight  over  its  road  within  this  state,  shall  erect  and  maintain  or  cause  to  be  erected 
and  maintained  in  complete  working  order,  for  use  and  operation  along  the  line  of  its 
road  used  for  the  carrying  and  transportation  of  passengers  or  freight,  a  telegraph 
or  telephone  wire,  with  an  office  and  proper  means  for  communication  by  said  wire  at 
each  of  its  principal  railway  stations. 

UNLAWFUL  FOR  COMPANY  TO  ASK  OR  RECEIVE  COMPENSATION  UN- 
LESS WIRES  MAINTAINED.— And  it  shall  be  unlawful  for  any  steam  railway 
company  operating  ten  miles  or  more  of  its  railroad  aforesaid  having  no  telegraph 
or  telephone  wire  along  the  line  of  its  railroad,  as  provided  herein,  to  ask,  demand 
or  receive  any  compensation  whatever  for  the  carrying  or  transportation  of  passengers 
or  freight  over  its  said  railroad.     (April  7,   1898,  93  v.  88.) 

§  3354-6.  §  2.  FORFEITURE  OF  CHARTER.—  The  charter  of  any  steam  rail- 
way or  steam  railroad  company  mentioned  and  provided  for  in  the  first  section  of  this 
act,  failing  or  neglecting  to  comply  with  the  conditions  of  this  act,  shall  be  declared 
forfeited  and  shall  be  annulled  upon  or  for  a  civil  action  brought  for  that  purpose  in 
the  name  of  the  state  of  Ohio,  by  the  prosecuting  attorney  of  any  county  in  this  state, 
in  or  through  which  any  steam  railroad  is  operated; 

PENALTY. —  and  any  officer,  agent  or  other  person  acting  for  or  in  behalf  of 
any  such  steam  railway  company,  who  shall  order,  direct,  advise,  ask,  demand  or 
receive  any  compensation  whatever  for  the  carrying  or  transportation  of  passengers 
or  freight  over  its  railroad  by  any  steam  railway  company  mentioned,  designated, 
described  or  provided  for  in  this  act,  shall  be  fined  in  any  sum  not  less  than  one 
hundred  dollars,  nor  more  than  five  hundred  dollars,  or  imprisoned  in  the  county  jail 
or  workhouse  not  less  than  thirty  days,  nor  more  than  ninety  days,  or  both.  (April 
7,  1898,  93  v.  89.) 

§   3355.     WHEN  AND   HOW   FREIGHT- WAYS   MAY  BE   CONSTRUCTED.— A 

person  owning  or  operating  a  coal  or  iron-ore  mine,  stone  quarry,  rolling  mill,  or 
machine  shop  within  this  state,  who,  as  a  means  of  removing  the  product  thereof, 
uses  or  desires  to  use  a  railway,  may  construct  such  railway,  and  run  cars  thereon, 
over  or  under  any  railroad  or  public  highway,  the  consent  of  the  owner  of  the  fee  in 
the  land  at  such  crossing  first  having  been  obtained;  but  such  railway  shall  be  so 
constructed  as  in  no  wise  to  impede  or  interfere  with  the  running  of  cars  or  the  travel 
upon  such  railroad  or  highway,  or  in  any  manner  to  injure  or  impair  such  railroad  or 
highway,  or  any  switch,  building,  or  appurtenance  connected  therewith  or  belonging 
thereto;  and  when  such  freight-way  is  constructed  over  a  railroad,  it  shall  be  at  the 


Railroad  (  'orporations.  241 


Private  Freight-ways  —  Scrap  Metals,   g§   3356-3361. 


height  of  at  least  eighteen  and  one-half  feet  in  the  clear  above  the  rails  of  the  same 
(May  1,   1873,  70  v.   194,  §    1.) 

8  3356.  WHEN  PLAN  OF  FREIGHT-WAY  MUST  BE  APPROVED  BY  COM- 
MISSIONER.—  Before  any  person  shall  construct  such  railway  across  a  railroad  ha 
shall  submit  the  plan  of  construction  to  the  commissioner  of  railroads  and  :• 
for  his  approval,  who  shall  at  the  cost  of  such  person  for  traveling  expenses  or  other- 
wise, see  that  the  structure  shall,  in  all  respects,  conform  to  the  requirements  of  the 
preceding  section.     (May  1,  1873,  70  v.  194,  g  2.) 

§  3357.  HOW  RAILROAD  SCRAP  METAL  SHALL  BE  SOLD  —  No  officer,  . 
or  employe  of  a  company  operating  a  railroad,  except  the  superintendent,  general 
managing  agent,  or  the  receiver  of  the  company,  shall  sell  or  dispose  of  worn  or  scrap 
metal,  or  any  iron,  brass,  or  other  metal  owned  by  the  company,  and  all  sales  and 
barter  of  such  scraps  or  other  metals  owned  by  a  company,  made  by  any  other  officer, 
agent,  or  employe  than  such  superintendent,  general  managing  agent,  or  receiver, 
shall  be  null  and  void;  and  no  such  superintendent,  general  managing  agent,  or 
receiver  shall  sell  or  dispose  of  any  such  scrap  or  other  metals  in  quantities  less  than 
one  ton,  nor  without  delivering  to  the  purchaser  a  bill  of  sale  thereof,  a  copy  of 
which  shall  be  retained  and  filed  in  the  office  of  such  superintendent,  managing  agent, 
or  receiver.     (April  12,  1876,  73  v.  227,  §  1.) 

§  3358.  PENALTIES  FOR  VIOLATIONS  OF  LAST  SECTION.— If  a  superin- 
tendent, general  managing  agent,  or  receiver  of  any  company  sell  or  dispose  of  any 
railroad  scrap  metal  in  quantities  less  than  one  ton,  or  sell  or  dispose  of  such  metal 
in  any  quantity  without  delivering  a  bill  of  sale  thereof  to  the  purchaser,  the  com- 
pany which  he  represents  shall  not  thereafter  be  entitled  to  the  benefit  of  the  three 
succeeding  sections.     (April  12,  1876,  73  v.  227,  §   2.) 

§  3359.  WHAT  IS  THE  EVIDENCE  OF  TITLE  TO  SUCH  SCRAP.— The  per- 
son, company,  or  firm  to  whom  is  offered  for  sale,  pledge,  or  trade,  any  worn  or  used 
links,  pins,  journal-bearings,  or  other  worn  or  used  and  detached  appendages  of  rail- 
road equipment,  or  any  scrap  metal  of  iron,  brass,  or  steel  appertaining  to  such 
equipment,  or  to  a  railroad  track  shall,  before  purchasing  or  dealing  in  the  same, 
ascertain  whether  the  ownership  thereof  is  lawfully  derived,  by  bill  of  sale  or  other- 
wise, from  a  company,  or  from  the  superintendent,  managing  r.gent.  or  receiver 
thereof;  and  in  any  action  in  which  the  right  or  title  to  such  article  of  metal  is  drawn 
in  question,  the  person,  company,  or  firm  dealing  therein,  or  his  or  its  assignee,  party 
to  such  action,  shall  be  bound  to  establish  and  prove,  prima  facie,  the  title  and  owner- 
ship derived  as  aforesaid.     (April  12,   1876,  73  v.  227,  §  3.) 

§  3360.  WHEN  A  MIXTURE  OF  SUCH  SCRAP  DEEMED  A  CONFUSION  OF 
GOODS. —  If,  in  such  action,  it  appear,  prima  facie,  from  the  evidence  on  the  trial, 
that  any  of  the  articles  or  metals  in  controversy  were  stolen,  or  unlawfully  obtained, 
and  mixed  or  confused  with  other  scrap  metal,  it  shall  be  deemed  a  confusion  of  goods, 
unless  the  party  claiming  against  the  title  of  the  company  establish,  prima  facie,  a 
lawful  title  to  the  residue  from  or  through  a  railroad  company.  (April  12.  1876.  73 
v.  227,   §  4.) 

§  3361.  COMPANY  MAY  REPLEVY  SCRAP;  PROCEEDINGS  IN  THE  AC- 
TION.—  A  company,  by  its  proper  officer  or  agent,  or  the  receiver  thereof,  may  claim 
to  be  the  general  owner  of.  and  may  replevy,  any  of  the  metals  or  articles  mentioned 
in  section  thirty-three  hundred  and  fifty-nine,  and  any  metals  with  which  they  may 
hiave  been  confused  as  aforesaid,  wherever  found  in  the  possession  of  any  person, 
■firm,  or  company,  whenever  there  is  good  reason  to  believe  that  such  metals  or  articles 

LAW   GOV.    PRIV.    COR.  — 16. 


242  Private  Corporations  in  Ohio. 

Laying  of  Tracks  —  Bridges  over  Streams,  §§   3362-3365. 

have  been  stolen  or  unlawfully  taken  from  a  railroad  company  or  its  receiver;  and, 
instead  of  the  usual  averment  as  to  ownership,  in  the  affidavit  for  a  writ  of  replevin, 
it  shall  be  sufficient  for  the  officer  or  agent  of  such  company,  or  the  receiver,  to  aver 
that  he  believes  such  metals  or  articles  to  have  been  unlawfully  taken  from  such 
company  or  some  other  company;  and  the  person,  firm  or  company  claiming  in  such 
action,  or  any  other  action,  the  right  or  title  to  any  such  metals  or  articles,  shall 
be  required  to  establish  and  prove,  prima  facie,  a  right  or  title  thereto,  lawfully 
derived  as  provided  in  the  preceding  sections;  in  the  absence  of  such  proof,  the  com- 
pany or  receiver  claiming  such  metals  or  articles  shall  be  held  and  considered  to  be 
the  general  owner  thereof;  but  any  other  company  or  receiver,  upon  showing  that 
any  part  of  such  metals  or  articles  was  unlawfully  taken  from  it  or  him,  shall  be 
entitled  to  such  part,  upon  payment  of  a  proper  share  of  the  cost  and  expenses  of  the 
replevy  thereof;  and  if  any  company,  or  its  receiver,  replevy  any  property  under  the 
provisions  of  this  section  without  good  and  reasonable  cause  to  believe  that  the  same 
was  unlawfully  taken  from  some  company  or  its  receiver,  such  company  or  receiver 
shall  be  liable  to  the  party  entitled  thereto,'  in  any  sum  not  exceeding  double  the 
amount  of  the  value  of  the  property  so  replevied,  in  addition  to  such  damages  as  such 
party  sustains  thereby.     (April  12,   1876,  73  v.   227,  §  5.) 

§  3362.  PENALTIES  FOR  OBSTRUCTING  THE  LAYING  OF  A  TRACK.— No 
person  or  corporation  shall  willfully  interfere  with  or  obstruct  any  company  engaged 
in  laying  the  track  of  its  road  across  any  other  railroad,  if  such  company  has  fully 
complied  with  the  law,  and  obtained  the  right  to  so  lay  its  track;  nor  shall  any  per- 
son or  corporation  obstruct  the  full  operation  of  any  road  so  constructed;  and  the  per- 
son or  corporation  violating  the  provisions  of  this  section  shall  pay,  for  each  day 
of  such  interference  or  obstruction,  one  thousand  dollars,  to  be  recovered  by  action  in 
the  name  of  the  state,  one-half  of  the  recovery  to  go  to  the  company  so  interfered 
with,  and  the  other  half  to  the  county  in  which  the  interference  occurs,  and  shall 
also  be  liable  for  damages  to  the  party  injured.     (April,  1876,  73  v.   160,  §§  1,  2.) 

§  3363.  WHEN  AND  HOW  A  COMPANY  MAY  DISSOLVE.— Any  company 
which  has  been  in  existence  for  a  period  of  three  years,  and  has  not  commenced  to 
build  the  road  described  in  its  articles  of  incorporation,  or  whose  road  having  been 
commenced,  has  been  abandoned  for  three  years,  may  be  dissolved  by  a  vote  of  two- 
thirds  of  its  stockholders,  at  a  meeting  called  for  that  purpose  by  its  president,  notice 
of  which  must  be  published  in  each  county  through  or  into  which  the  line  of  the  pro- 
posed road  passes  at  least  thirty  days  before  such  meeting  is  held.  (April  27,  1872, 
69  v.   171,  §§  1,  2.) 

§  3364.  WHEN  COMPANIES  MUST  CROSS  STREAMS  ON  SAME  BRIDGE.— 
When  it  becomes  necessary  for  two  or  more  railroads  to  cross  any  of  the  navigable 
waters  of  this  state  at  or  near  the  same  point,  by  draw  or  swing  bridge,  the  com- 
panies or  persons  owning  or  controlling  such  roads  shall,  if  practicable,  use  one  and 
the  same  bridge,  and  approaches  thereto;  and  the  right  to  use  any  such  bridge  and  its 
approaches,  or  other  similar  structure,  so  situate  and  used  as  to  make  it  necessary 
for  the  companies  or  persons  owning  or  operating  two  or  more  roads  to  agree  upon 
a  common  use  thereof,  in  order  to  comply  with  the  provisions  of  this  section,  may, 
when  such  companies  or  persons  can  not  so  agree,  be  appropriated  by  the  company  or 
persons  owning  or  operating  a  road  for  which  such  use  is  desired,  in  accordance  with 
the  provisions  of  law  authorizing  the  appropriation  of  private  property  to  the  use  of 
corporations.     (February  10,  1860,  57  v.  10,  §  1.) 

§    3365.     PROCEEDINGS   TO   APPROPRIATE    JOINT   USE   OF    BRIDGE.— The 

statement  to  be  filed  in  such  appropriation  proceedings  shall,  as  near  as  may  be,  set 
forth  the  regulations  according  to  which  the  joint  use  of  such  bridge  and  approaches, 


Railroad  '  <  »rp<  »k  \  i  n  >■. 


243 


Spark    Arresters,    §   3:'. 


or  other  structure,  shall  be  regulated;  and  if  the  reasonableness  of  the 

part  thereof,  be  denied  by  the  defendant  in  the  proce< 

determine  the  issue,  and  enter  on  record  its  finding  and  order  thereon,  conflrmls 

altering  the  regulations,  as  it  may  deem  just  and  reasonable,  subject  to  ea 

and  reversal  for  error  by  the  court  of  common  pleas,  on  petition  fib  d  pmpose; 

the  order  of  the  court  fixing  the  regulations  shall  be  made  before  the  jury  i 

eled  to  assess  the  amount  of  compensation  for  the  right  sought  to  be  appropii 

and  such  compensation  shall  be  a  sum  equal  to  the  annual  value  of  such  use,   b 

paid  quarterly  each  year,  in  advance,  while  the  same  continues.     (February   10,    i 

57  v.  10,  8  2.) 

§  3365-1.  REQUIRING  RAILROADS  TO  USE  SPARK  ARRESTER—  i 
railroad  company  operating  a  railroad  or  any  portion  of  a  railroad,  wholly  or  partly 
within  the  state  of  Ohio,  shall  place,  or  cause  to  be  placed,  on  every  locomotive  en 
used  in  operating  such  railroads,  or  constructing  or  repairing  the  same,  some  device 
or  contrivance  that  will  most  effectually  guard  against  the  emission  of  fire  and 
sparks  which  would  otherwise  be  thrown  out  by  such  engines,  and  such  railroad  com- 
panies shall  keep  such  device  or  contrivance  in  good  repair:  Provided,  that  such 
railroad  companies  shall  not  be  required  to  use  such  devices  during  the  months  of 
December,  January  and  February.     (April  9,  1885,  82  v.  118.) 


Jurisdiction  of  justice   of  peace. 

An  action  under  any  of  these  sections  in- 
volves title  to  real  estate,  and  a  justice  of  the 
peace  lias  no  jurisdiction. —  Erie  I!.  li.  Co.  \. 
Furry,  18  0.  C.  C.  880  (1894)  ;  s.  c,  31  \\  .  L. 
B.  282. 

Failure  to  comply  —  negligence  per  se. 

A  failure  to  comply  with  this  section  would 
be  regarded  as  negligence  per  se. —  Continental 
Trust  Co.  v.  Toledo,  etc..  R.  R.  Co.,  89  Fed. 
637,  40  W.  L.  B.  370   (1898). 

Duty  from  December  to  February. 

The  exception   in   this    section   does   not    re 
lieve  a  company  from  the  ordinary  legal  duty 
to  observe  proper  care  to   avoid   injuring  the 
property  of  others  by  fire. —  Toledo,  etc..  Ry. 
Co.  v.  Wickenden,  11  O.  C.  C.  37S  (1896)  ;  s.  c, 

5  C.  D.  171. 

What  arrester  must  be  used. 

A  company   is  not  obliged  to   use  the   besi 
and   latest   invented   spark   arrester,   but   only 
the  best  in  general  use. —  See   Lake  Side, 
R.  R.  Co.  v.  Kelly,  10  O.  C.  C.  322  (1895)  ;  s.  c, 

6  C.  D.  555;  Cleveland,  etc..  R.  R.  Co.  v.  Fred 
enbur,  3  O.  C.  C.  23   (1887)  :   s.  c.  2  C.  D.  15. 

Inspection  and  repair. 

The  inspection  of  the  locomotive  and  appli- 
ances before  sending  it  upon  the  road,  and 
finding  it  then  in  good  order,  is  not  sufficienl 
to  avoid  liability;  "they  must  be  kepi  in 
order  on  the  line  of  road. —  Cleveland,  etc., 
R.  R.  Co.  v.  Fredenbur,  3  0.  C.  C.  23  (1887)  ; 
s.  c,  2  C.  D.  15. 

Spark  arresters  in  use  on  other  roads. 

To  show  that  a  certain  netting  or  arrester 
is  in  genera]  use  in  the  United  States,  the 
company  cannot  show  its  use  on  particular 
roads.— "Lake   Side,   etc.,   R.   R.   Co.    v.   Kelly, 


10  0.  C.  C.  322  L895)  .  -.  c,  6  C.  D 
1  lc\  ela  ml.  i  tc,  R.  R.  <  o.  \ .  Fredenbur 
C.  C.  23   I  L887)  ;   -.  c,  2  C.  D.  15. 

High   winds   increasing  draft. 

The  fact   that   a   high   wind  caused   a   gTl 
draft  and  fire  to  escape  is  no  defense  ' 
it    appears    that    a    locomotive    properlj 
structed    with    suitable  applian  ssarily 

emits    fire   during   a    high    wind.    -Cleveland, 
etc..   R.    K.   Co.    \.    Fredenbur,  3   0.    C.   • 
(  1887)  :  8.  c,  2  ('.  D.  15;  8.  e.,  23  W.  L.  I 

Burden  of  proof. 

In  an  action  againsl  a  railroad  company  for 
damages    by    fire    emitted    from    the    - 
stack,  when  it    i-  shown  by  the  evidenci 
a      locomotive      properly      constructed 
equipped   wit  h  the  besl    appliances   in   g< 
use,    will    not    emit     -park-,    and    that    tl 
was  caused  by  sparks  from  the  company's  lo- 
comotive,   the    burden    of    proof   is   upon   the 
company  to   prove  that   it-  locomotive  BJ 
pliances  were  properly  constructed  and  u 
order-    <  leveland,  etc.,    R.    R,   I  o.   \ .   F 
bur,  3  0.  C.  C.  23     lss7<  ,  B.  .-..  2  C.  D.  15. 

Expert  testimony. 

It    is  n.'t    competent    to  ask  a  witne—  I 
amine   the   spark   arrester  complaint 
to  state  whether  it   was  the  most  efficient  in 
preventing  fires.    The  proper  way  is 
the  knowledge  the  expert  has  upon  the  differ- 
ent kind-  of  netting  used,  the  differ* 
i  k  arresters,  their  efficiency,  i  I 
submil    to    the   jury    the   question 
efficiency    of    the    arresters 

0.    v.    McKclveV.    12   0.   C.   C.    ■- 

s.*c,  ■".  CD.  561. 

Expert  testimony. 

The  testimony  of  expert   w  ;■ 
petent  to  show 'the  different   kinds  of  netting 


244 


Private  Corporations  in  Ohio. 


Spark  Arresters  —  Fires,  etc.,   §§  3365-2,  3365-3. 


that  were  used  by   different   roads,  to  enable  I 
the  jury   to    say   whether   the    appliance   used 
was  proper.     An  expert  may  testify  as  to  de- 
fects   in   the   mode   of  attaching   a   spark   ar-  , 
rester,  and  as  to  the  effect  of  sparks  and  their  | 
vitality,  and  the  distance  they  will  carry  and 
still   start  a  fire. —  Cleveland,  etc.,  Ry.  Co.  v. 
McKelvey,   12  0.  C.  C.  426   (1895)  ;  s.  c,  5  C. 
D.  561. 

Expert  testimony. 

Expert  testimony  is  admissible  to  prove  that 
a  properly  constructed  locomotive  will  not 
throw  sparks  a  long  distance,  although  the 
fact  that  the  witness  has  not  been  in  the  em- 
ploy of  a  railroad  for  a  long  time  may  affect 
the' weight  of  his  testimony. —  Martz  v.  Cin- 
cinnati, etc..  R.  R.  Co.,  12  0.  C.  C.  144  (189G)  ; 
s.  c,  5  C.  D.  561. 

Proof  of  fires  set  by  other  engines.        , 

Where  it  i>  alleged  that  the  appliances  were 
defective  and  the  management  negligent,  it  i* 
only  competent  to  show  that  other  engines  of 
the*  company  emitted  sparks  and  coal  on  other 
occasions,  when  such  evidence  is  limited  and 
confined  to  a  time  and  place  not  remote  from 
the  fire,  and  not  until  evidence  has  first  been 
given  tending  to  exclude  the  probability  that 
the  fire  was  communicated  by  any  other 
means. —  Pennsylvania  Co.  v.  Rossman,  13  0. 
C.  C.  Ill   (1896)  ;  s.  c,  7  C.  D.  119. 

Proof  of  fire. 

It  is  competent  to  show  that  the  fire  started 
in  the  grass  along  the  track  soon  after  the 
passage  of  the  engine,  and  that  about  that 
time  and  immediately  after  the  passage  of 
the  locomotive  other  fires  occurred  in  the 
neighborhood. —  Lake  Side,  etc.,  R.  R.  Co.  v. 
Kelly,  10  0.  C.  C.  322  (1895);  s.  c,  6  C.  D. 
555. 

Where  engine  cannot  he  traced. 

Where  the  particular  locomotive  that  is 
claimed  to  have  set  the  fire  is  not  traceable, 


it  may  be  shown  that  the  railway  company 
was  reckless  in  this  particular,  and  it  would 
be  competent  to  show  that  every  one  of  the 
company's  locomotives  emitted  fire. —  Lake 
Side,  etc..  R.  R.  Co.  v.  Kelly,  10  O.  C.  C.  322 
(1895)  ;  s.  c,  6  C.  D.  555;  s.  c,  56  Oh.  St.  785; 
Martz  v.  Cincinnati,  etc.,  R.  R.  Co.,   12  O.  C 

C.  144   (1896);  s.  c,  5  C.  D.  451. 

Specimens  of  wire  as  evidence. 

Specimens  of  wire  netting  cannot  be  used 
as  showing  the  netting  used  by  the  defendant, 
unless  it  is  shown  when  it  was  used. —  Cleve- 
land, etc.,  Rv.  Co.  v.  McKelvey,  12  O.  C.  C. 
426    (1895);   s.  c,  5  C.  D.  561. 

Cinders  as  evidence. 

If  it  is  clearly  established  that  sparks 
picked  up  and  produced  in  evidence  came  from 
the  engine,  it  would  be  competent  to  admit 
them  in  evidence. —  Cleveland,  etc.,  Rv.  Co.  v. 
McKelvey,  12  0.  C.  C.  426   (1895);   s*  c.,  5  C. 

D.  561. 

Charge  to  jnry. 

It  is  proper  to  charge  a  jury  in  a  case  under 
this  seetion  that  "  railroad  companies  are  in 
no  sense  insurers,  but  in  this  state  are  re- 
quired by  statute  in  the  use  of  their  engines, 
to  prevent  loss  or  damage  by  fire,  to  place 
on  their  locomotives  or  engines,  and  keep  in 
repair,  some  device  or  contrivance  that  will 
most  effectually  guard  against  the  emission 
of  fire  and  sparks  which  would  otherwise  be 
thrown  out  by  such  engine,  having  regard  to 
the  enterprise  in  which  they  are  engaged,  and 
the  objects  to  be  accomplished.  And  the  law 
places  no  higher  or  further  duty  upon  them 
than  this  in  this  particular,  and  when  they 
have  performed  that  duty  they  are  not  re- 
sponsible for  accidental  fires  caused  by  the 
escape  of  sparks  from  their  engines. —  Lake 
Side,  etc.,  R.  R.  Co.  v.  Kelly,  10  0.  C.  C.  322 
(1895);   s.  c,  6  C.  D.  555. 


§  3365-2.  PENALTIES.—  Any  railroad  company  or  corporation  violating  the  pro- 
visions of  this  act  shall,  upon  conviction  thereof  in  any  court  of  competent  jurisdic- 
tion, forfeit  and  pay  for  each  and  every  such  violation  any  sum  not  exceeding  one 
hundred  dollars;  and  in  addition  thereto  the  court  of  common  pleas,  in  and  for  any 
county  through  which  such  railroads  are,  or  may  hereafter  be  constructed  and 
operated,  may  enjoin  such  railroad  companies  or  corporations  from  operating  on  such 
railroads,  any  locomotive  not  provided  with  the  device  as  required  by  section  one 
(3365-1).     (April  9,  1885,  82  v.  118.) 


§  3365-3.  RAILROAD  COMPANIES  MUST  KEEP  RIGHT  OF  WAY  FREE 
FROM  COMBUSTIBLE  MATERIAL.—  Every  railroad  company,  or  every  person  in 
charge  of  a  railroad  as  manager  or  receiver,  shall  be  required  to  keep  the  right  of 
way  of  such  company  clear  and  free  from  weeds,  high  grass,  (and)  decayed  timber, 
which  from  their  nature  and  condition  are  combustible  material,  liable  to  take  and 
communicate  fire(s)  from  passing  locomotives  to  abutting  or  adjacent  property.  And 
such  company  shall  be  liable  for  all  damage  sustained  by  the  owner  or  occupant  of 


Railroad  «  Corpora i 


245 


Fires,  Damages  by,  etc.,  S$  3365-4,  3305-5. 


abutting  property  from  any  carelessness  or  neglect  to  keep  such  right  of  way  i 
of  combustible  material  as  herein  provided.     (March  24,   1890,  87 


Origin  or  fire  immaterial. 

Whether  the  fire  was  negligently  allowed 
to  escape  <>r  not  is  immaterial.—  Indiana, 
etc.,  i;.v.  Co.  v.  Overman,  Hi)  [nd.  538  (1881  |; 
Louisville,  etc.,  Ry.  Co.  v.  NTitche,  126  End. 
229  (1890)  :  Galveston,  etc.,  K.  R.  Co.  v.  Polk, 
28  S.  W.  (  rex.)  353  i  L894).  See  Pittsburg, 
etc.,  Ry.  Co.  v.  Hixon,  7!)  End.  Ill    (1881). 

Right    of  way    must    be    cleared    whole 
width. 

Sec  Blue  v.  Aberdeen,  etc,  R.   R.  Co..  23  S. 

E.    (X.    C)  275    (1805). 


Elevator   is    not    com  bust  i  Me    niaf.iial. 

An  allegation  i  hal  a  compan 
si  cl  ion    by    lia\  ing    .<    grain    elevatoi    ■  •• 
righl  of  way,  will  be  Btricken  out  on  motion. 
Such    an    elevator    i-    not    "  combu  I 
terial  "  of  the  character  contemplated   bj 
statute.      Man/  \.  ( 'incinnati,  etc..  R    i 
12  ').  i.e.    in   (1896)  :   -.  ■      5  I  .  D     i:,l. 

Russian  thistles. 
Sec-   §    I732d. 


§  3365-4.  WHEN  ABUTTING  PROPERTY  OWNER  MAY  REMOVE.—  Any 
person  owning  or  controlling  property  abutting  or  adjacent  to  such  railroad  right  of 
way,  in  case  of  failure  to  comply  with  the  provisions  of  this  act  after  twenty  days' 
notice  in  writing,  the  default  still  continuing,  may  caute  to  be  removed  all  combus- 
tible material  from  the  right  of  way  from  (of)  such  railroad  along  or  by  such  abutting 
or  adjacent  property  and  upon  presentation  of  a  reasonable  account  for  the  same  to  the 
agent  at  the  nearest  station  of  such  company  or  receiver,  and  if  such  company  or 
receiver  refuse  to  pay  the  same  within  thirty  days,  the  amount  may  be  recovered  by 
law,  before  any  court  having  jurisdiction  thereof.     (March  24,  1890,  87  v.  99.) 

§  3365-5.  LIABILITY  OF  RAILROAD  COMPANY  FOR  LOSS  OR  DAMAGE  BY 
FIRE;  RECOVERY;  EVIDENCE  OF  CAUSE.— Every  railroad  company  operating 
a  railroad  or  any  portion  of  a  railroad  -wholly  or  partially  within  the  the  state  of  Ohio, 
shall  be  liable  for  all  loss  or  damage  by  fire  originating  upon  the  land  belonging  to 
such  railroad  company  caused  by  operating  such  railroad.  Such  railroad  company 
shall  be  further  liable  for  all  loss  or  damage  by  fires  originating  on  lands  adjacent 
to  such  railroad  company's  land  caused  in  whole  or  in  part  by  sparks  from  an  engine 
passing  over  the  line  of  such  railroad,  to  be  recovered  before  any  court  of  competent 
jurisdiction  within  the  county  in  which  the  lands  on  which  such  loss  or  damage  occur 
are  situated,  and  the  existence  of  such  fires  upon  such  railroad  company's  lands  shall 
be  prima  facie  evidence  that  such  fire  was  caused  by  operating  such  railroad.  (April 
26,   1894,  91  v.   187.) 

Constitutionality. 

This  act  and  the  next  section  are  constitu- 
tional.—  Baltimore,  etc.,  Ry.  Co.  v.  Kreager, 
61  Oh.  St.  312  (1S99);  Martz  v.  (incinnati. 
etc.,  R.  R.  Co.,  12  O.  C.  C.  14-1  (1896);  s.  c,  5 
C.  D.  451. 


Law  prior  to  this  act. 

Before  the  passage  of  this  act  it  was  held 
that  negligence  could  not  be  inferred  from  the 
mere  fact  that  an  injury  to  adjacent  property 
was  caused  by  sparks  emitted  from  locomo- 
tives.—  Ruffner  v.  Cincinnati,  etc..  R.  R.  Co.. 
.34  Oh.  St.  96  (1877).  See  Cleveland,  etc.  R. 
R.  Co.  v.  Fredenbur,  3  O.  C.  C.  23  (1888)  ; 
s.  c,  2  C.  D.   15. 

Rule  when  fire  starts  on  right   of  way. 

This  section  imposes  upon  every  railroad 
company  operating  a  railroad  in  this  state  an 

absolute  liability  for  hiss  or  damage  by  fire. 
originating  on  its  land,  caused  by  operating 
the  road,  and  the  fact  that  the  fire  originated 


on   the   land   <it"  the    company   i-   made    prima 
facie  evidence  that  it  was  caused  by  opei 
the  road.     In  an  action  for  1"--  ot  damage,  it 
is  not    necessary  to  allege  or  prove  negluj 
on   the  pari    of  the  company;   nor  i-   th< 
sence    of    such    negligence    a    defense.—   Haiti- 
more,  etc.  Ry.  (  o.  \.  Kreager,  <;l   Oh.  St.  312 
i  1899)  :    Lake  Erie,  etc.,  R.  R.  I  o.  \.   Falk,  62 
mi,.  St.  297    1 1900). 

Same  subject. 

The  plaint  ill   having  made  out  a  prima 
case,  the  company  can  only  show  that  the  tire 
did  not   star!   on   it-  land,  or  that   if  it   did  so 
it    was    from    some   cause    beyond    it-   control. 
The  negligence  is  presumed  and  cannot 
butted. —  Martz  v.  Cincinnati,  etc..  R.   r 
12  O.  C.  144  I  1896)  ;   -.  ...  :,  <  !.  IX  451. 

Proof   of   identity  of   defendant. 

It    i-   not    necessary    to    -how   ov. 
the   tracks.      If  the  proof  -hows  the  defendant 
was  the  owner,  and  operated  the  engine  that 


246 


Private  Corporations  in  Ohio. 


Fires  —  Evidence  as  to  Negligence,  etc.,  §  3365-6. 


caused  the  fire,  it  is  sufficient  to  make  a  ease 
if  the  defendant  was  negligent. —  Toledo,  etc., 
Ry.  Co.  v.  Wales.  11  O.  C.  C.  371  (1896). 

Application  when  right  of  way  ac- 
quired hy  deed  and  company  in  ex- 
istence   before    passage    of   act. 

See  Baltimore,  etc.,  Ry.  Co.  v.  Kreager,  61 
Oh.    St.   312    (1899). 

Measure  of  damages. 

The  measure  of  damages  is  the  actual  value 
of  the  property,  and  not  what  it  would  have 
cost  to  reconstruct  or  replace  the  same,  with 
deductions  for  wear  and  tear.  Under  such  a 
rule  the  damages  might  far  exceed  the  actual 
value  of  the  property  and  the  actual  loss  to 
the  plaint  ill's.  Where  property  totally  de- 
stroyed has  a  market  value,  that  market  value 
is  the  measure  of  compensation  for  the  loss. 
—  Cleveland,  etc.,  Ry.  Co.  v.  McKelvey,  12  O. 
C   C.  426   (1895);   s.  c,  5  C.  D.  561. 

§  3365-6.  EVIDENCE  AS  TO  NEGLIGENCE.—  That  in  all  actions  against  any 
person  or  incorporated  company  for  the  recovery  of  damages  on  account  of  any  injury 
to  any  property,  whether  real  or  personal,  occasioned  by  fire  communicated  by  any 
locomotive  engine,  while  upon  cr  passing  along  any  railroad  in  this  state,  the  fact 
that  such  fire  was  so  communicated,  shall  be  taken  as  prima  facie  evidence  to  charge 
with  negligence  the  corporation,  or  person  or  persons  who  shall,  at  the  time  of  such 
injury  by  fire,  be  in  the  use  and  occupation  of  such  railroad,  either  as  owners,  lessees 
or  mortgagees,  and  also  those  who  shall  at  such  time  have  the  care  and  management 
of  such  engine;  and  it  shall  not,  in  any  case,  be  considered  as  negligence  on  the  part 
of  the  owner  or  occupant  of  the  property  injured,  that  he  has  used  the  same  in  the 
manner,  or  permitted  the  same  to  be  used  or  remained,  had  no  railroad  passed  through 
or  near  the  property  so  injured,  except  in  cases  of  injury  to  personal  property,  which 
shall  be  at  the  time  upon  the  property  occupied  by  such  railroad.  (April  26,  1894, 
91  v.   187.) 


Same  subject. 

When  the  property  destroyed  under  circum- 
stances which  make  the  company  liable  there- 
for is  insured,  the  right  of  the  owner  as 
against  the  railroad  company  and  the  insurer 
is  limited  to  indemnity  for  his  loss. —  Lake 
Erie,  etc.,  R.  R.  Co.  v.  Falk.  62  Oh.  St.  297 
(1900). 

Subrogation   when   property   insured. 

s,v  Lake  Erie,  etc.,  R.  R.  Co.  v.  Falk,  62  Oh. 
St.  297   (1900). 

Jurisdiction  of  justice  of  peace. 

A  justice  of  the  peace  has  no  jurisdiction 
for  the  reason  that  the  action  involves  the 
title  or  possession  to  real  estate,  and  not  an 
action  of  trespass. —  Furry  v.  Erie  R.  R.  Co., 
31  W.  L.  B.  282   (1894)  ;   s.  c,  18  O.  C.  C.  880. 

See  §  3365-6  and  notes. 


Rule  when  fire  starts  on  land  adjacent 
to  right  of  way. 

A  different  rule  of  liability  and  of  evidence 
is  provided  by  the  act  where  the  loss  or  dam- 
age is  caused  by  fire  originating  on  land  ad- 
jacent to  the  land  of  the  railroad  company. 
In  such  cases  the  company  is  liable  only  when 
the  fire  was  caused  in  whole  ov  in  part  by 
sparks  from  an  engine  on  or  passing  over  the 
road;  and  the  fact  that  the  fire  was  so  caused 
is  made  prima  facie  evidence  of  negligence  on 
the  part  of  the  company  or  person  operating 
the  road.  But  this  prima  facie  case  of  negli- 
gence may  be  overcome  by  proof,  under  a 
proper  pleading,  that  the  company  exercised 
due  care,  the  burden  being  on  the  company  to 
show  that  it  was  free  from  negligence. — 
Baltimore,  etc..  Rv.  Co.  v.  Kreager,  61  Oh.  St. 
312  (1899).  See'  Continental  Trust  Co.  v. 
Toledo,  etc.,  R.  R.  Co.,  89  Fed.  637   (1898). 

Pleading. 

A  petition  which  alleges  that  the  plaintiff's 
loss  was  caused  by  fire  that  originated  on 
land  adjacent  to  the  land  of  the  railroad  com- 
pany, and  that  the  fire  was  caused  in  whole 
or  in  part  by  sparks  from  an  engine  upon  or 
passing  over  the  railroad  while  the  defendant 


was  operating  it.  is  not  subject  to  demurrer 
on  the  ground  that  it  fails  to  charge  the  de- 
fendant with  negligence.  Though  it  does  not 
in  terms  charge  such  negligence,  it  states 
facts  which  in  law  make  a  prima  facie  case  of 
negligence,  and  show  a  complete  cause  of  ac- 
tion.—  Baltimore,  etc.,  Rv.  Co.  v.  Kreager,  61 
Oh.  St.   312    (1899). 

"What  is  prima  facie  case. 

A  prima  facie  case  is  made  out  under  this 
statute  when  evidence  is  offered  tending  to 
prove  the  facts  set  out  in  the  statute,  the 
fire,  the  loss  of  property,  and  that  the  fire 
was  caused  by  sparks  coming  from  an  engine 
belonging  to  the  defendant. —  Toledo,  etc., 
Ry.  Co.  v.  Wales,  11  O.  C.  C.  371  (1896)  ;  s.  c, 
5  C.  D.  168. 

Evidence  in  rebuttal. 

A  party  may  rest  his  case  when  he  has  made 
out  a  prima  facie  case  under  this  statute, 
but  he  cannot  withhold  evidence  confirmatory 
of  such  prima  facie  case  and  offer  it  in  re- 
buttal, unless  that  evidence  would  also  actu- 
ally be  rebutting  evidence. —  Toledo,  etc.,  Ry. 
Co',  v.  Wales.  11  O.  C.  C.  371  (1896)  :  s.  c,  5  C. 
D.  168.    See  §  3365-5  and  notes. 


Railroad  Corpora!  eons. 


247 


Regulations  as  to  Employees,  etc.,  SS  S'.'.i  .11 


Proof   necessary. 

In  an  action  under  this  section,  ii  is  neees 
sary  to  go  further  than  to  show  a  mere  possl 
bility   or   conjecture   thai   the    fire    was    com 


municated    bj    an   engim        Minneapoli 

Co.  v.  Great  Northen 

i  L901)    (Minn.),  Jl   Am.  K.  K.   Rep 


§  3365-7.  ATTORNEY'S  FEE,  AS  TO.—  In  case  either  party  appeal  from  the 
judgment  of  the  court  in  which  an  action  under  this  act  is  originally  begun,  oi 
carry  the  case  to  a  higher  court  on  error,  the  party  in  whose  favor  judgment  is  finally 
rendered  shall  have  included  in  his  bill  of  costs  against  the  adverse  party,  an  attor- 
ney fee  of  fifty  dollars  ($50)  in  case  the  appeal  or  error  is  not  carried  beyond  the 
circuit  court,  and  in  case  such  appeal  or  error  is  carried  to  the  supreme  court  of  this 
state,  there  shall  be  an  attorney  fee  of  one  hundred  dollars  ($100)  included  in  his 
said  bill  of  cost.     (April  26,   1894,  91  v.   187.) 


Constitutionality. 

Whether  t  his  section  is  constitutional, 
qurere?  But  if  not,  it  is  severable  from  the 
remaining    provisions. 


and     does    not    affect 


their    valid  it  \ .      Baltimore,    etc.,    I 
Kreager,  61   Oh.  St.  312  I  1899 
v.  Rosser,  53  Oh.  St.  12  (IS 


§  3365-8.  APPLICATION  OF  SECTION  TWO.—  Section  two  of  this  act  (§  3365-6) 
shall  apply  to  all  cases  now  pending,  as  well  as  to  those  hereafter  to  be  commenced. 
(April  26,  1894,  91  v.  187.) 

§  3365-9.  EMPLOYMENT  OF  COLOR-BLIND  PERSONS  BY  RAILROAD 
COMPANIES  FORBIDDEN,  EXCEPT;  EXAMINATION.— Said  act  be  so  amended 
as  to  read  as  follows:  That  no  railroad  company  shall  hereafter  contract  to  employ 
any  person  in  a  position  which  requires  him  to  distinguish  form  or  color  signals, 
unless  such  person  within  two  years  next  preceding  has  been  examined  for  color- 
blindness in  the  distinct  colors  in  actual  use  by  such  railroad  company  by  some  com- 
petent person  employed  and  paid  by  the  railroad  company,  and  has  received  a  cer- 
tificate that  he  is  not  disqualified  for  such  position  by  color-blindness  in  the  colors 
used  by  a  railroad  company.  Every  railroad  company  shall  require  such  employe  to 
be  re-examined  at  least  once  within  every  two  years  at  the  expense  of  the  railroad 
company;  provided,  that  nothing  in  this  section  shall  prevent  any  railroad  com- 
pany from  continuing  in  its  employment  any  employe  having  defective  sight,  in  all 
cases  where  such  defective  sight  can  be  fully  remedied  by  the  use  of  glasses,  or  by 
other  means,  satisfactory  to  the  person  making  such  examinations.  (February  19, 
1885,  82  v.  65;  March  3,   1888,  85  v.  58.) 


Constitutionality. 

This    act   is    constitutional    in    all    respects, 
and    does    not    affect    interstate    commerce. — 


Nashville,  etc.,  Ry.  Co.  v.  Alabama,  128  U    B. 
96    (1888);    Smith  v.  Alabama.   L24    U.  S.  4 
.  L888). 


§  3365-10.  PENALTY. —  A  railroad  company  shall  be  liable  to  a  fine  of  one 
hundred  dollars  for  each  violation  of  the  preceding  section.  (February  19,  1885, 
82  v.   65;  March  3,   1888,  85  v.  58.) 

§  3365-11.  REQUIREMENTS  OF  CONDUCTORS.  LOCOMOTIVE  ENGINEERS 
AND  FLAGMEN;  AS  TO  FLAGMEN;  SAVING  CLAUSE.— That  it  shall  be  unlaw- 
ful for  any  railroad  company  or  corporation  running  or  operating  a  steam  railroad 
in  the  state  of  Ohio,  thirty  miles  in  length  or  more,  and  the  same  having  been  run 
and  operated  for  three  years  or  more,  to  employ  any  person  in  the  capacity  of  con- 
ductor of  passenger  train  or  trains,  unless  such  person  has  had  at  least  two  years' 
experience  in  the  position  of  conductor  of  either  passenger,  freight  or  construction 
train,  within  six  years  next  preceding  the  time  of  such  employment.  It  shall  also 
be  unlawful  for  any  such  railroad  company  or  corporation  to  employ  any  person  in 
the  capacity  of  freight  conductor,  or  conductor  of  a  construction  train,  unless  such 


243 


Private  Corporations  in  Ohio. 


Regulations  as  to  Employees,  Hours  of  Service,  etc.,  S§  3365-12-3365-14. 


person  lias  had  at  least  two  years'  previous  experience  as  conductor,  for  a  term  of  two 
years,  or  has  been  employed  as  a  brakeman  for  at  least  two  years  on  either  passenger, 
freight,  or  construction  trains  within  five  years  next  preceding  the  time  of  such 
employment.  It  shall  be  unlawful  for  any  such  railroad  company  to  employ  any  per- 
son in  the  capacity  of  locomotive  engineer  unless  such  person  has  had  at  least  three 
years'  experience  as  locomotive  fireman.  It  shall  be  unlawful  for  any  such  railroad 
company  to  employ  any  person  in  the  capacity  of  flagman  of  any  train  or  trains,  unless 
such  person  shall  have  had  at  least  two  years'  experience  as  a  brakeman  on  passenger, 
freight  or  construction  trains,  within  five  years  next  preceding  the  time  of  such 
employment;  and  all  persons  employed  in  the  capacity  of  flagman  of  either  freight, 
passenger  or  construction  trains,  shall  be  held  equally  responsible  with  the  conductor 
for  any  injury  resulting  from  any  act  of  negligence  or  carelessness  of  such  flagman 
while  in  the  discharge  of  his  duty.  But  nothing  in  this  act  shall  be  so  construed  as 
to  prevent  any  such  railroad  company  or  corporation  from  retaining  conductors, 
engineers  or  flagmen  in  its  employ  at  the  time  of  its  passage.  (April  17,  1891,  88 
v.  320;  January  31,  1893,  90  v.  20.) 

Constitutionality.  nals,  torpedoes,  et  cetera,  to  prevent  rear-end 

See  notes  to  §  3365-9.  collisions,  is  the  superior  of  all  train  and  en- 

gine men   excepting  the  conductor. 
Flagman    not    fellow-servant    of    other 

employees. 

It  seems  that  this  act  makes  the  flagman, 
whose  duty  it  is  to  attend  to  rear  flags,  sig- 

§  3365-12.  PENALTIES. —  Any  railroad  company  or  corporation  knowingly  vio- 
lating the  provisions  of  this  act,  shall  be  fined,  for  the  first  offense,  not  less  than  five 
hundred  nor  more  than  one  thousand  dollars,  and  for  any  subsequent  offense  shall  be 
fined  not  less  than  one  thousand  nor  more  than  fifteen  hundred  dollars,  which  shall 
be  recovered  in  a  civil  action  in  the  name  of  the  state.     (April  17,  1891,  88  v.  320.) 

§  3365-13.  DUTY  OE  RAILROAD  COMMISSIONER.—  It  is  hereby  made  the 
duty  of  the  railroad  commissioner  of  this  state  to  enforce  the  provisions  of  this  act. 
(April  17,   1891,  88  v.  320.) 

§  3365-14.  HOURS  OF  SERVICE  OF  CERTAIN  RAILROAD  EMPLOYES  LIM- 
ITED; EXCEPTION;  DAY'S  WORK,  ETC. —  Any  company  operating  a  railroad 
over  thirty  miles  in  length,  in  whole  or  in  part  within  the  state,  shall  not  permit  or 
require  any  conductor,  engineer,  fireman,  brakeman  or  any  trainman  on  any  train, 
or  any  telegraph  operator  who  has  worked  in  his  respective  capacity  for  fifteen  con- 
secutive hours,  to  again  be  required  to  go  on  duty  or  perform  any  work  until  he  has 
had  at  least  eight  hours'  rest,  except  in  cases  of  detention  caused  by  accident,  unavoid- 
able or  otherwise.  Ten  hours  shall  constitute  a  day's  work,  and  for  every  hour  that 
any  conductor,  engineer,  fireman,  brakeman  or  any  trainman,  or  any  telegraph  opera- 
tor of  any  company  who  works  under  the  direction  of  a  superior,  or  at  the  request  of 
the  company,  shall  be  paid  for  such  extra  services  in  addition  to  his  per  diem. 
(March  26,  1890,  87  v.  112;  April  23,  1891,  88  v.  344;  April  15,  1892,  89  v.  311.) 


Construction  of  act. 

It  is  apparent  the  legislature  intended  to 
re-enact  the  words  "  in  excess  of  said  ten 
hours'  work  "  after  the  words  "and  for  every 
hour,"  and  the  words  "  shall  be  required  or 
permitted  to  work,  he,"  after  the  words  "  or 
at  the  request  of  the  company,"  in  the  origi- 
nal section,  which,  by  some  inadvertence,  are 
not  in  the  amended  sections. —  Wheeling,  etc., 


Rv.  Co.  v.  Gilmore,  8  0.  C.  C.  658  (1S94)  ;  s.  c, 
4  C.  D.  366. 

Constitutionality. 

The  provisions  in  this  act  for  eight  hours 
rest  is  a  constitutional  police  regulation,  but 
the  act  is  unconstitutional  so  far  as  it  at- 
tempts to  fix  ten  hours  as  a  day's  work. — 
Wheeling,  etc.,  Ry.  Co.  v.  Gilmore,  8  0.  C.  C. 
65S   (1894);  s.  c,  4  C.  D.  366. 


I\.\l  LR(  >AD    (  '<  >RP<  )RA  riONS. 


249 


Regulations  as   to  Employees  —  Blocking  Frogs,   etc.,    SS    3365-15  330.', 


§  3365-15.     PENALTY. — Any    railroad   company   or   corporation    k:  /   vio- 

lating any  of  the  provisions  of  this  act  shall  be  liable  to  a  penalty  of  not  less  I 
five  hundred  dollars  ($500),  nor  more  than  one  thousand  dollars  ($1,000 
offense,  and  for  any  subsequent  offense,  of  not  less  than  one  thousand  do  I  000) 

nor  more  than  fifteen  hundred  dollars  ($1,500),   which   shall   be  recovered   in   a 
action  in  the  name  of  the  state.     (March  26,  1890,  87  v.   112;  April    15,  1802,  80  v. 
311.) 

§  3365-16.  DUTY  OF  RAILROAD  COMMISSIONER.—  It  is  hereby  made  the 
duty  of  the  railroad  commissioner  of  this  state  to  enforce  the  provisions  of  this  act 
when  complaint  is  properly  filed  in  his  office.     (April  15,  1892,  89  v.  312. j 

§  3365-17.  ENGINEERS  ADDICTED  TO  DRINK  NOT  TO  BE  EMPLOYED.— 
It  shall  be  unlawful  for  any  person,  company  or  corporation  operating  a  railroad  in 
whole  or  in  part  in  this  state,  knowingly  to  suffer  or  permit,  either  directly,  or  by, 
or  through,  any  representative,  any  person  to  run  or  operate  in  any  capacity  a  rail- 
road locomotive  on  any  part  of  his,  their  or  its  road  in  this  state  who  is  intoxicated, 
or  in  the  habit  of  becoming  intoxicated  or  to  knowingly  continue  the  employment  of 
any  person  in  any  such  capacity,  after  he  becomes  or  is  intoxicated,  while  in  charge  of 
such  locomotive,  and  for  every  violation  of  this  section,  such  company,  person  or  cor- 
porating  operating  such  road,  shall  forfeit  and  pay  to  the  state  of  Ohio  two  hundred 
dollars  to  be  recovered  in  the  name  of  the  state  in  a  civil  action  to  be  prosecuted  in 
any  county  through  which  the  road  runs,  by  the  prosecuting  attorney  thereof,  and 
he  shall  be  entitled  to  twenty-five  per  cent,  of  the  recovery  and  the  balance  shall  be 
paid  into  the  county  treasury.     (April  20,   1891,  88  v.  429.) 

Intoxicated    employees  —  personal   injuries. 

See  Baltimore,  etc.,  Rv.  Co.  v.  Henthorne,  36  W.  L.  B.  (12,  73  Fed.  034   (18 


§  3365-18.  BLOCKING  OF  RAILWAY  FROGS.  GUARD-RAILS.  ETC.— That 
every  railroad  corporation  operating  a  railroad  or  part  of  a  railroad  in  this  state,  shall 
on  or  before  the  first  day  of  June,  1899,  adjust,  fill  or  block,  all  angles  in  frogs, 
switches  and  crossings  on  their  roads  in  all  yards,  divisional  and  terminal  stations 
where  trains  are  made  up,  with  the  best  known  sheet  steel  spring  guard  or  wrought 
iron  appliances  approved  by  the  commissioner  of  railroads  and  telegraphs.  (March 
23,   1888,  85  v.   105;  April  25,  1898,  93  v.  342.) 


Penalty  not  exclusive. 

The  remedy  of  fine  provided  in  this  soot  ion 
is  not  exclusive,  and  an  employee  injured  by 
reason  of  the  failure  of  the  company  to  com- 
ply with  this  section  may  maintain  an  action 
for  damages. —  Narramore  v.  C.  C.  C.  A  St. 
L.  Rv.  Co.,  42  W.  L.  B.  246  (1899)  ;  New  York. 
etc./R.  R.  Co.  v.  Lambright,  5  O.  C.  C.  433 
(1891);  s.  c,  3  C.  D.  213;  s.  c.  29  W.  L.  B. 
359. 

Applies  to  trestles. 

This  act  applies  to  trestles,  although 
bridges  are  excepted,  and  the  question 
whether  a  structure  is  a  bridge  or  a  trestle  is 
for  the  jury. —  Johns  v.  Cleveland,  etc.,  Ry. 
Co.,  7  N.  P.  592   (1900);  s.  c,  10  Dee.  348. 

Fellow-servant   rule. 

The  employee  of  the  company  charged  with 
the  duty  of  blocking  the  guard-rails,  frogs, 
and  switches  is  not  a  fellow-servant  of  the 
other  employees  of  the  company.  In  such  a 
case  the  acts  of  the  servant  are  those  of  the 


master. —  New  York,  etc.,    R,    I 
bright,  5  0.  C.  C.  433  (1891    ;  8.  c,  3  C. 


.   Lam- 

1).  213. 


Who  are  employees. 

Where  two  railw  ay  companii 
from  each   other   over  a    delivery   track 
certain  point,   a    person    employed   by   one   of 
them  to  take  the  number  of  its  ears  ai 
inspect   their  seals,  as  trains  were  made 
such  place  by  the  other,  is  an  empl< 
latter   within   the   meaning  of   this 
Atkvn  v.  Wabash,  etc.,   Ry.  Co.,    i 
23    W.    L.    B.    151      1890    ;    s.      ..    6    0,    F.    D. 
395. 

Assumption    of    risk    and    contributory 
negligence. 

It  is  against  public  policy  to  permit  a 
]  any  to  defend  on   the  ground 
lit"  risk,  although  it  may  defend  on  I 
of  contributory   negligence. —  Rail; 
Ullom,  20  0.  C.  C.  512     1898 
C.  C.  C.        St     L.   Ry.  Co.,    12   W.   L.   : 

3i  ■■  Lake  s)  Ry.  Co.  v.  Wins- 

lmv.  10  0.  C.  C.  193   (1894)  ;   -.  c.  4  C.  D.  242; 


250 


Private  Corporations  in  Ohio. 


Regulations   as  to  Employees,   etc.,   §§   3365-19,  3365-20. 


Lake  Erie,  etc.,  Ry.  Co.  v.  Craig,  73  Fed.  642 
i  L896)  :  s.  c.,  9  O.  F.  D.  589.  Contra.  Johns 
v.  Cleveland,  etc.,  Ry.  Co.,  7  N.  P.  592  (1900)  ; 
s.  c,   10  Dec.  348;  s.'c,  23  O.  C.  C.  442  (1902). 

Presumption  that  frogs  are  blocked. 

A  person  crossing  a  railroad  track  has  the 
right  to  assume  that  the  company  has  obeyed 
the  law,  unless,  in  the  exercise  of  ordinary 
care,  he  learns  or  ought  to  learn  that  the 
contrary  is  true. —  Pittsburg,  etc.,  Ry.  Co.  v. 
Burroughs,  6  N.  P.  37  (1899) ;  s.  c,  9  Dec.  324. 

Practicability  of  blocking. 

la  a  case  under  this  act,  the  question 
■whether  it  was  practicable  to  block  the  frog 
or  switch  is  for  the  jury. —  Lake  Shore,  etc., 
Ry.  Co.  v.  Winslow,  10  O.  C.  C.  193  (1894); 
s.  c,  4  C.  D.  242. 


Evidence,  blocking  frog  after  injury. 

Evidence  that  after  an  accident  a  sufficient 
block  was  placed  in  the  guard-rail  without 
endangering  trains  is  admissible  to  show  that 
such  block  could  be  used  with  safety. —  Cin- 
cinnati, etc.,  R.  R.  Co.  v.  Van  Home,  34  W.  L. 
B.  183    (1S95). 

Proof  of  operation  by  company. 

See  Wheeling  Ry.  Co.  v.  Lewis,  33  W.  L.  B. 

159  (1894). 

During  construction. 

Frogs  need  not  be  blocked  in  a  new  switch 
while  it  is  being  constructed. —  See  Hauss  v. 
Lake  Erie,  etc.,  R.  R.  Co.,  12  O.  F.  Dec.  613 
(1901). 


§  3365-19.  PENALTY  FOR  FAILURE  SO  TO  DO.—  Any  railroad  corporation 
failing  to  comply  with  the  provisions  of  this  act,  shall  be  punished  by  a  fine  of  not 
less  than  one  hundred  dollars  nor  more  than  one  thousand  dollars.  (March  23,  1888, 
85  v.  105.) 


§  3365-20.  CERTAIN  REGULATIONS  FOR  PROTECTION  OF  RAILROAD 
EMPLOYES. —  It  shall  be  unlawful  for  any  railroad  or  railway  corporation  or  com- 
pany owning  and  operating,  or  operating,  or  that  may  hereafter  own  or  operate 
a  railroad  in  whole  or  in  part  in  this  state,  to  adopt  or  promulgate  any  rule  or  regu- 
lation for  the  government  of  its  servants  or  employes,  or  make  or  enter  into  any 
contract  or  agreement  with  any  person  engaged  in  or  about  to  engage  in  its  service, 
in  which,  or  by  the  terms  of  which,  such  employe  in  any  manner,  directly  or  indirectly, 
promises  or  agrees  to  hold  such  corporation  or  company  harmless,  on  account  of  any 
injury  he  may  receive  by  reason  of  any  accident  to,  breakage,  defect  or  insufficiency 
in  the  cars  or  machinery  and  attachments  thereto  belonging,  upon  any  cars  so  owned 
and  operated,  or  being  run  and  operated  by  such  corporation,  or  company  being  defect- 
ive, and  any  such  rule,  regulation,  contract  or  agreement  shall  be  of  no  effect.  It 
shall  be  unlawful  for  any  corporation  to  compel  or  require  directly  or  indirectly  an 
employe  to  join  any  company  association  whatsoever,  or  to  withhold  any  part  of  an 
employe's  wages  or  his  salary  for  the  payment  of  dues  or  assessments  in  any  society 
or  organization  whatsoever,  or  demand  or  require  either  as  a  condition  precedent  to 
securing  employment  or  being  employed,  and  said  railroad  or  railway  company  shall 
not  discharge  any  employe  because  he  refuses  or  neglects  to  become  a  member  of 
any  society  or  organization.  And  if  any  employe  is  discharged  he  may,  at  any  time 
within  ten  days  after  receiving  a  notice  of  his  discharge,  demand  the  reason  of  said 
discharge,  and  said  railway  or  railroad  company  thereupon  shall  furnish  said  reason 
to  said  discharged  employe  in  writing.  And  no  railroad  company,  insurance  society 
or  association,  or  other  person  shall  demand,  accept,  require,  or  enter  into  any  con- 
tract, agreement,  stipulation  with  any  person  about  to  enter,  or  in  the  employ  of  any 
railroad  company  whereby  such  person  stipulates  or  agrees  to  surrender  or  waive 
any  right  to  damages  against  any  railroad  company,  thereafter  arising  for  personal 
injury  or  death,  or  whereby  he  agrees  to  surrender  or  waive  in  case  he  asserts  the 
same,  any  other  right  whatsoever,  and  all  such  stipulations  and  agreements  shall  be 
void,  and  every  corporation,  association  or  person  violating  or  aiding  or  abetting 
in  the  violation  of  this  section  shall  for  each  offense  forfeit  and  pay  to  the  person 
wronged  or  deprived  of  his  rights  hereunder  the  sum  not  less  than  fifty  dollars  ($50) 
nor  more  than  five  hundred  dollars  ($500)  to  be  recovered  in  a  civil  action.  (April 
2,  1890,  87  v.   149.) 


RAILRO  \1>    <    <  IRPORA1  [ONS. 


251 


Defective  Machinery,  §  3365-21. 


Cor.  stitutionality . 

This  ad  is  unconsl  itut  ional,  as  a  \  iolat  ion 
of  art.  2.  S  30.  of  the  Ohio  Constitution,  and 
art.  I  of  amendment  I  I  of  the  United  States 
Constitution. —  Farrow  v.  Railway  Co.,  7  \ 
P.  606,  .">  Dec.  582  1 1895)  ;  Shaver  v.  Penn 
sylvania  Co.,  71  Fed.  931  I  L896)  ;  s.  c,  9  <  >. 
F.  I).  221.  See  Pierce  v.  Van  Dusen  1 1  - 
C.  C.  A.),  46  W.  L.  B.  102  (1901). 

Certain  contracts  void. 

It  is  against  public  policy  for  a  railroad 
company  to  stipulate  with  its  employees  as  a 
part  of  their  contract  of  employment,  thai 
liability  shall  not  attach  to  it  for  injuries 
caused  to  its  servants  by  the  careless 
ness  of  other  employees  who  are  placed  in 
authority  and  control  over  them.  Railway 
Co.  v.  Spangler,  44  Oh.  St.  471   (1866). 

Object  of  section. 

This  section  lias  three  objects: 

1.  To  prevent  contracts  cutting  off  liability. 

2.  To  prevent    employment  or  discharge  of 
men    on    condition   of    joining    or    refusing    to 
joint   relief   association,    and    to    compel    com 
panies  to  state  reasons  of  discharge. 

3.  Preventing  relict'  associations  from  stipu- 
lating for  waiver  of  liability. 

Relief      association      contracts      giving 
option  to  take  benefits  or  damages. 

A  relief  department  contract  which  doc-  not 
stipulate  that  all  claims  for  damage-  are 
waived,  but  requires  the  beneficiary  to  elect 
whether  he  will  accept  benefits  from  the  relief 
fund,  or  rely  on  his  right  to  sue  the  company 
for  damages,  is  not  interdicted  by  this  section, 
nor  is  it  against  public  policy. —  Pittsburg, 
etc.,  Ey.  Co.  v.  Cox,  55  Oh.  St.  497  (1896): 
Shaver  v.  Pennsylvania  Co.,  71  Fed.  931 
(1896);  s.  c,  9  0.  F.  D.  221. 

Same  subject. 

Such  a  contract  does  not  lack  mutuality  or 
consideration  where  the  company  as  a  part  of 
the  relief  agreement  stipulates  that  it  will 
make  up  deficiencies  in  the  fund  and  assume 
the  management  of  the  fund,  and  do  other 
things  along  that  line. —  Pittsburg,  etc.,  Ry. 
Co.  v.  Cox,  55  Oh.  St.  497   (1896). 

Acceptance   of  benefits  by  widow. 

Where  the  widow  of  a  deceased  member  of  a 
relief  association,  being  the  beneficiary  named 
by  him,  accepts  benefits  from  the  association, 


QOl     bl d    from    I, 

administral 

t  he  amount  she  -honld  re<  five  in  I 

'oui  i   on  final  distribution 

her  acceptance.      Baltimore,  •  I 

nicy.    12  O.  C.  I  i       |) 

631.     Si  e  I  'ullison  v.  Baltimore,  et<     i:    I 

I  -V  I'  c,  7  D( 

Validity  of  release  of  damages. 

Where  a  member  of  a  relief  depai  tm<  i  I 
cepts  benefits  and  signs  a  dam- 

ages, in-  righl  oi  .-,,  tion  against   the  company 
will  be  defeated,  if  at   the  time  he  »igncd  the 
release   he   was  able   to   read   and 
was  in  no  manner  prevent*  d  ft 
release,  and  was  capable  of  understands 
effect   of  the  same.      Farrow    v.   Rail    a 
5   Dec.  582    |  L895)  :    Baltimore,  i  tc,  I:     i 
v.  Bryant,  9  O.  C.  C.  332  I  L895  6  <     l> 

418. 

When  member  of  relief  department  can 

resort  to  state  courts. 

S<  e   Baltimore,  etc.,   R.    R.  Co.  v.  St  inkard 
56  Oh.  St.  224    |  L897). 

Liability   for   failure   to   furnish    reason 

of   discharge. 

The  failure  or  refusal  of  a  company  to  fur- 
nish a  discharged  employee  I  he  reason  in 
ing  for  such  discharge  doe-  not  make  it 
in  a   civil  action  for  the  penalty  provided   h- 
this  ad.—  ('rail  v.  Toledo,  etc.,  Rj  .Co     7  0 
C.  C   132      lsit.ii  :  -.  ,-..  :;  <  .  |).  r,'.n;'. 

Where  employee  quits   service. 

Where  an  employee  leave-  the  servici 
company  of  his  own  accord  he  is  not  entitled  to 
a  certificate  to  that  effect   under  this  section. 
—  See  Editorial.  33  W.  L.  B.  109,  121. 

Reason      for      discharge  —  constitution- 
ality. 

See  Wallace  v.  Georgia,  etc.,  Ry.  <  o.,  34  W. 
L.  B.  220  (1894). 

Company    may    refuse    to     give    reasons 

for   discharge. 

See  New    S  ork,  etc.,  R,   R.  Co.   v.   - 
65  Oh.  St.  414   i  L902). 

Blacklisting  employee  —  clearance  card. 
see  New  York,  etc.,   Ry.  Co.  v.  Schaffer,  17 
o.   c.  C.  77    I  L898)  :    s.  ...  9  I  .    1).    L58; 
ti-on  v.  Lake  Shore,  etc.,  Ry.  '  o.,  2  N.  1*.  27''. 
:   -.  ...  3  D.c.  526. 


§  3365-21.  DEFECTIVE  MACHINERY  PRIMA  FACIE  EVIDENCE  01  NEGLI- 
GENCE.— It  shall  be  unlawful  for  any  such  corporation  to  knowingly  or  negligently 
use  or  operate  any  car  or  locomotive  that  is  defective,  or  any  car  or  locomotive  upon 
which  the  machinery  or  attachments  thereto  belonging  are  in  any  manner  defective. 
If  the  employe  of  any  such  corporation  shall  receive  any  injury  by  reason  of  any 
defect  in  any  car  or  locomotive,  or  the  machinery  or  attachments  thereto  belonging, 
owned  and  operated,  or  being  run  and  operated  by  such  corporation,  such  corporation 
shall  be  deemed  to  have  had  knowledge  of  such  defect  before  and  at  the  time  such 
injury  is  so  sustained,  and  when  the  fact  of  such  defect  shall  be  made  to  appear  in  the 


252 


Private  Corporations  in  Ohio. 


Defective  Machinery,   §  3365-21. 


trial  of  any  action  in  the  courts  of  this  state,  brought  by  such  employe,  or  his  legal 
representatives,  against  any  railroad  corporation  for  damages,  on  account  of  such 
injuries  so  received,  the  same  shall  be  prima  facie  evidence  of  negligence  on  the  part 
of  such  corporation.     (April  2,   1890,  87  v.    149.) 

Note. —  See  General  Defective  Machinery  Act,  passed  April  4.  1902,    95  v.   114. 


Constitutionality  and  application. 

This  section  is  constitutional,  and  provides 
a  rule  of  evidence  applicable  to  all  eases  on 
trial  in  this  state,  and  to  all  railroad  com- 
panies any  part  of  whose  line  of  railway  ex- 
tends into  this  state,  whether  the  injury 
complained  of  was  received  within  or  without 
the  state.-— Pennsylvania  Co.  v.  McCann,  54 
Oh.  St.   10   (1S9G). 

Burden  of  proof. 

By  reason  of  the  presumption  raised  by  this 
section,  the  burden  is  thrown  upon  the  com- 
pany to  show  that  it  has  used  due  diligence, 
and  is  not  guilty  of  negligence. —  Railway  Co. 
v.  Eriek.  51  Oh.  St.  146  (1894). 

Presumption  niay  be  rebutted. 

A  company  may  overcome  the  presumption 
of  negligence  by  showing  that  in  fact  it  did 
not  have  such  knowledge,  and  that  it  used  due 
diligence  to  ascertain  and  remedy  defects. — 
Railway  Co.  v.  Eriek,  51  Oh.  St,  146  (1894); 
Railway  Co.  v.  Meyers,  12  0.  C.  C.  263 
(1893);  s.  c,  4  C.  1)1  28;  Knighton  v.  Balti- 
more, etc.,  R.  R.  Co.,  33  W.  L.  B.  216  (1894). 
See  Hill  v.   Lake  Shore,  etc.,  Rv.  Co.,  22   0. 

C.  C.  291    (1901). 

Want    of    appliance    same    as    defective 
appliance. 

Where  an  accident  occurs  to  an  employee 
of  a  railroad  company,  as  a  result  of  the  ab- 
sence of  an  appliance  upon  the  locomotive 
which  it  is  customary  to  provide,  the  company 
is  placed  in  the  same  position  under  this  act 
as  though  the  appliance  had  been  furnished 
and  was  defective. —  Crumley  v.  Cincinnati. 
etc.,  Rv.  Co.,  12  0.  C.  C.  164;  s.  c,  5  C.  D. 
353;   s.  c,  56  Oh.  St.  7S1   (1897). 

■Who  is  employee. 

Where  a  person  is  employed  by  one  company 
to  work  in  a  yard  shifting  cars  for  it  and 
another  company  under  the  usual  arrange- 
ment between  the  companies  for  expenses,  he 
is  an  employee  of  both  companies. —  Pitts- 
burg, etc.,  Et.  R.  Co.  v.  Johnston,  33  W.  L.  B. 
248    (1895). 

Retroactive  effect. 

Where  the  injury  occurred  before  the  pas- 
sage of  this  act,  but  the  action  was  not  com- 
menced until  the  law  was  in  force,  the  action 
must  be  governed  as  to  matters  of  evidence  by 
this  act. —  Cincinnati,  etc.,  R.  R.  Co.  v. 
Hedges,   15   O.   C.    C.   254    (1897);    s.   c,   8   C. 

D.  265. 

Inspection  by  employee  —  contract  void. 

A  contract  which  a  railroad  company  re- 
quired its  brakemen  to  sign  when  employing 


them,  making  it  their  duty  to  inspect  cars  and 
appliances  on  which  they  were  to  work  when 
in  fact  it  would  be  impracticable  for  them  to 
make  such  inspection,  will  not  relieve  the  com- 
pany.— ■  Lake  Shore,  etc.,  Ry.  Co.  v.  Gilday, 
16  6.  C.  C.  649    (1890);  s.  c,  9  C.  D.  27. 

Employment  of  inspectors. 

The  presumption  of  diligence  raised  by 
proof  of  the  employment  of  competent  and 
careful  inspectors  will  not  be  sufficient  to 
overcome  the  effect  of  the  knowledge  of  the 
defects,  which  bv  this  statute  it  is  deemed  to 
have.— Felton  v.  Bullard,  42  W.  L.  B.  218 
(1899);  s.  c,  94  Fed.  781;  Railway  Co.  v. 
Eriek.  51  Oh.  St.  146  (1894);  Pittsburg,  etc., 
R,  R.  Co.  v.  Johnston.  33  W.  L.  B.  24S  (1S95)  ; 
Pittsburg,  etc.,  Rv.  Co.  v.  Thompson,  82  Fed. 
720    (1897). 

Latent  defect  —  inspection. 

Proof  that  the  defendant  company  employed 
competent  inspectors,  and  that  all  cars  under- 
went careful  inspection,  there  being  no  proof 
of  actual  knowledge  of  the  defect,  which  was 
latent  (in  the  brake  shaft),  will  not  exon- 
erate the  company. —  Pittsburg,  etc.,  R.  R. 
Co.  v.  Johnston,  33  W.  L.  B.  248  (1895). 

Knowledge  of  defect. 

This  section  does  not  dispense  with  the 
necessity  of  the  plaintiff's  alleging  and  prov- 
ing want  of  knowledge  of  defects,  or  that,  hav- 
ing such  knowledge,  he  informed  his  superior 
and  continued  in  the  service,  relying  on  a 
promise  to  remedy  the  defects. —  Hesse  v. 
Columbus,  etc.,  R*  R.  Co.,  5S  Oh.  St.  167 
(1898). 

Notice  of  defect. 

Where  a  car  is  inspected  and  has  the  usual 
three  X  mark  put  upon  it  indicating  that  it 
is  defective  and  is  to  be  repaired,  a  brake- 
man  is  not  chargeable  with  notice  if  the 
mark  cannot  be  seen,  as  at  night.  If  he 
should  see  the  mark  he  is  chargeable  only 
with  such  defects  as  have  been  discovered 
by  the  inspectors. — ■  See  Michigan  Central  Ry. 
Co.   v.  Butler.  23  0.   C.  C.  459    (1902). 

Duty  to  inspect  —  extent  of. 

See  Lake  Shore,  etc..  Rv.  Co.  v.  Gilday,  16 
O.  C.  C.  649  (1S90)  ;   s.  c.,'  9  C.  D.  27. 

Foreign  cars. 

This  section  makes  no  distinction  between 
the  cars  owned  Dy  the  company  and  foreign 
cars  which  it  may  operate,  and  the  duty  of 
inspection  applies  to  both. —  Felton  v.  Bul- 
lard, 42  W.  L.  B.  218  (1S99).  See  Pennsyl- 
vania Co.  v.  Meyers,  12  O.  C.  C.  263   (1893); 


R.A1  LROAD    <  A  >RPl  il<  A  I  [(  • 


253 


Superior  Officer  —  Fellow  Servant,   g  3365-22. 


s.  c,  4  C.  D.  28;   Pennsylvania  Co.  \.  Snyder,  Pittsburg                                Blair,   11  O.  I     I 

55  Oh.  St.  342    (1896);    Hunt   v.  Caldwell,  22  570  (189!                     ■       ,      .. 

O.  C.  C.  283   (1901).  639 

Foreign   contracts  of  employment.  Flat   car   without    sidcn   or   <  nds    not    il«  - 

Where   the    injured    employee    entered    into  feotive. 

the  contract  of  employmenl   ami  was  injured  See  Toledo,  etc.,  Ely.  <  >..  v.  Beard    20  0    •  . 

out  of  the  state,  docs  this  section  apply  when  < '.  i;s|    (189 
it  changes  the  effect  of  the  contract?       See 


§    3365-22.     SUPERIOR  OFFICER  AND  FELLOW  SERVANT  DEFINED.—  That 
in  all  actions  against  the  railroad  company  for  personal  injury  to,  or  d<  ting 

from  personal  injury,  of  any  person,  while  in  the  employ  of  such  company,  art 
from  the  negligence  of  such  company  or  any  of  its  officers  or  employes,  it  shall  be 
held  in  addition  to  the  liability  now  existing  by  law,  that  every  person  in  the  employ 
of  such  company,  actually  having  power  or  authority  to  direct  or  control  any  other 
employe  of  such  company,  is  not  the  fellow  servant,  but  superior  of  such  other 
employe,  also  that  every  person  in  the  employ  of  such  company  having  charge  or 
control  of  employes  in  any  separate  branch  or  department,  shall  be  held  to  be  the 
superior  and  not  fellow  servant  of  employes  in  any  other  branch  or  department  who 
have  no  power  to  direct  or  control  in  the  branch  or  department  in  which  they  are 
employed.     (April  2,   1890,  87  v.   149.) 


Constitutionality. 

See  Pierce  v.  Van  Dusen,  78  Fed.  693  ( 1897)  ; 
8.  c,  9  O.  F.  D.  419;  s.  c,  (U.  S.  C.  C.  A.)  46 
W.  L.   B.   102. 


Applicable  to  receivers. 

See  Pierce  v.  Van  Dusen 
46  W.  L.  B.  i02   (1901). 


C.  C.  A.), 


"  Branch  "  —  "  department  "  —  construc- 
tion. 

The  terms  "branch"  and  "department" 
should  not  be  limited  so  as  to  embrace  merely 
those  large  divisions  created  tor  convenience 
in  administering  the  affairs  of  the  company. 
On  the  contrary,  it  is  more  reasonable  to  sup- 
pose that  they  relate  to  those-  minute  ones 
which  concern  the  daily  duties  of  the  em- 
ployees.—  Railroad  Co.  v.  Margrat,  51  Oh.  St. 
130,  145   (1894). 

Authority   to    direct  —  question   of   fact. 

Whether  an  employee  of  a  company  has  au- 
thority to  direct  or  control  other  employees  of 
the  same  company  is  a  question  of  fact  to  be 
determined  in  each  case.  This  may  be  done 
however,  cither  by  proof  of  express  authority. 
or  by  showing  the  exercise  of  such  authority 
to  lie  customary,  or  according  to  the  usual 
course  of  conducting  the  business  of  the  par- 
ticular company  interested,  or  of  railway  com- 
panies generally.— Railroad  Co.  v.  Margrat. 
51  Oh.   St.  130'(1S94). 

"Where  negligent  party  has  no  subordi- 
nates. 

It  seems  this  section  would  have  no  bearing 

on  a  case  where  the  party  alleged  to  have  I n 

negligent  had  no  subordinates,  and  had  no 
power  to  "direct  or  control  any  other  em- 
ployee." The  now  existing  law  i-  not 
changed  by  this  section  except  in  so  far  as  is 


specificallv    provided.      Felton    v.    Bullai 
YV.   L.  B.  218   :  1899). 

Engineer. 

An  engineer  in  charge  of  a  locomotive  '>n 
one  train  ol  cars  of  a  railroad  company  is  in 
a  branch  or  depart  tnenl  of  it  -  set  rice  s 
from  that  of  a  brakeman  mi  anothei  train  of 
the  same  company,  and  therefore  i-  his  su- 
perior. Railroad  Co.  v.  Margrat,  ~>1  Oh.  St. 
130  1894).  See  Pittsburg,  etc.,  I' 
Devinney,  17  Oh.  St.  197   I  1867). 

Hostier. 

A  "  hostler,"  who  take-  chai  a 
when    it    arrive-    home,    i-    the    superioi 
n  laborer  around  t  he  \  ard, 
for  the  engine.   -  Baltin  i  l:    K. 

Co.    v.    Sutherland,    12  O.  C.  i 
s.  c.  (  (  .  I).  115;  -.  <■■    •-  Oh.  St.  676. 

Yard  brakeman. 

A    yard   brakeman  i-  nol    thi  rvant 

of   a  conductor  und<  r  whose  d   di- 

n    he   i-    placed.      Pierce   v.   Van    D 
46  W.   I..   B.   102  (1901  i. 

Chief  inspector  not   fellow-servant. 
rx  chief  inspector  of  car-,  having  "t>- 

irs  under  him,   i-  not   tl  •  rvant 

of    a    brakeman-— Railwa 
( ih    SI     146   (1S94) ;    Pitts 

ir,   LI   0.  C.  (     579      : 
CD  a  v.  Bullard,  94  F< 

(1899    :   -.  c,    12   W.    L.   B.  218. 

Telegraph  operator. 

A    telegraph    operator   at    a  !    the 

line  of  a  railroad  whose  duty 
telegraphic  orders  r< 

of  trains  from  the  train  dispal  nother 

and  communicate  them  I  gineers 


254 


Private  Corporations  in  Ohio. 


Superior  Officer  —  Fellow  Servant,   §  3365-22. 


and  conductors  of  trains  at  his  station,  is  not 
the  superior,  but  the  fellow-servant,  of  the 
engineer  of  a  train  on  such  road.— Baltimore, 
etc.,  R.  R.  Co.  v.  Camp,  65  Fed.  952  (1895); 
s.  c,  8  0.  F.  D.  391. 

Switchman. 

A  switchman  in  a  yard  whose  duty  it  was 
to  open  such  switches  as  he  was  notified  to 
open  by  the  different  conductors  and  engineers 
in  the  yard,  is  acting  in  a  separate  branch  or 
departnient  from  that  of  such  conductors  or 
engineers. —  Lake  Shore,  etc.,  Ry.  Co.  v.  Pero, 
22  O.  C.  C.  130  (1901). 

Train  dispatcher. 

A  train  dispatcher  who  has  complete  control 
of  the  movements  of  all  trains  on  a  division 
of  a  railroad  is  not  a  fellow-servant  of  the 
engineer  of  a  train  running  on  such  division. 
—  Baltimore,  etc.,  R.  R.  Co.  v.  Camp,  65  Fed. 
952   (1895);  s.  c,  S  0.  F.  D.  391. 

Yarclmaster   not   fellow-employee. 

A  yardmaster  in  charge  of  a  railroad  yard 
of  the  company,  with  full  control  over  all  its 
employees  who  have  occasion  to  be  in  such 
yard  in  the  discharge  of  their  duties  under 
their  contract  of  employment  with  the  com- 
pany, with  authority  to  select  from  the  em- 
ployees of  such  company  the  men  who  are  to 
operate  all  trains  sent  out  from  such  yard 
over  the  road  of  defendant,  is  by  virtue  of  this 
section  the  "  superior  "  and  not  the  fellow- 
servant  of  a  brakeman  —  McCann  v.  Pennsyl- 
vania Co..  10  O.  C.  C.  139  (1895);  s.  c,  6  C. 
D.  610:  s.  c,  54  Oh.  St.  10.  See  Pennsylvania 
Co.  v.  Fox,  10  O.  C.  C.  72  (1893)  ;  s.  c,  4  C.  D.  19. 

Conductor  riding  on  pass. 

A  conductor  of  a  train  on  which  another 
conductor  is  riding  on  a  free  pass  is  not  the 
fellow-servant  of  such  other  conductor- 
Lake  Shore,  etc.,  Ry.  Co.  v.  Bycroft.  33  W.  L. 
B.  160  (1S95)  ;  s.  c,  8  N.  P.  5S8.  See  Manville 
v.  Cleveland,  etc.,  R.  R.  Co.,  11  Oh.  St.  417 
(1860). 

Employee   going  home. 

An  employee  going  home  after  a  day's  work 
stands  in  the  same  relation  to  the  company  as 
a  person  not  an  employee,  and  trie  defense  of 
negligence  of  a  fellow-servant  cannot  be  inter- 
posed.— Columbus,  etc.,  Rv.  Co.  v.  O'Brien, 
25  W.  L.  B.  90  (1891);  s.  c.  4  O.  C.  C.  515; 
s  c,  2  C.  D.  681.  See  Lake  Shore,  etc.,  Ry. 
Co.  v.  Mau,  9  O.  C.  C.  173  (1894)  ;  s.  c,  4  C. 
D.  5. 

Note  —  "  now  existing  law." 

The  cases  following  are  cited  to  show  the 
law  before  the  enactment  of  this  section. 

General  rule. 

From  considerations  of  public  policy,  rail- 
road companies  arc  liable  for  injuries  to  their 
servants  caused  by  the  carelessness  of  those 
who  are  superior  in  authority  and  control  over 
them. —  Railway   Co.   v.   Spangler,  44   Oh.   St. 


471,  478  (1886);  Little  Miami,  R.  R.  Co.  v. 
Stevens,  20  Oh.  415;  Cleveland,  etc.,  R.  R.  Co. 
v.  Kearv,  3  Oh.  St.  202;  Pittsburg,  etc.,  Ry. 
Co.  v.  Lewis,  33  Oh.  St.  196  (1877). 

Authority  —  question   of   fact. 

Whether  or  not  one  servant  is  placed  by  a 
common  master  under  the  control  of  another 
servant,  thereby  creating  the  relation  of  su- 
perior  and  subordinate  between  them,  must  be 
determined  from  the  evidence  in  each  particu- 
lar case. —  Pittsburg,  etc.,  Ry.  Co.  v.  Lewis, 
33   Oh.   St.   196    (1877). 

Assumed  risk  of  negligence  of  superior. 

If  an  employee,  with  a  full  knowledge  of  an 
habitual  and  continued  negligence  of  the  com- 
pany or  his  superior  fellow-employee  in  some 
particular  matter,  acquiesces  therein,  and  con- 
tinues in  the  service  of  the  company,  without 
any  objection  or  effort  toward  a  correction  of 
the  neglect,  he  thereby  waives  his  right 
against  the  company  and  takes  the  risk  upon 
himself. —  Lake  Shore,  etc.,  Ry.  Co.  v.  Knit- 
tal,  33  Oh.   St.  468    (1878). 

Unreasonable  rules  —  negligence  of  fel- 
low-servant, no  defense. 

Where  an  action  is  brought  against  a  rail- 
road company  by  one  of  its  employees  to  re- 
cover damages  for  personal  injuries  sustained 
by  the  enforcement  of  an  order,  made  by  the 
superintendent  of  the  company,  as  to  tiie 
management  of  a  particular  train,  which  or- 
der was  unreasonable  and  the  enforcement  of 
the  same  was  dangerous  to  such  employee,  the 
fact  that  the  negligence  of  a  fellow-servant  of 
the  injured  person,  while  executing  such  order, 
contributed  in  producing  the  injury,  affords 
no  defense  to  the  action. —  Railway  Co.  v. 
Henderson,  37  Oh.  St.  549  (1S82).  See  Dick 
v.   Railroad  Co.,  38  Oh.   St.   389    (18S2). 

Fellow-servant  rule  —  contract  of  em- 
ployment governed  by  laws  of  state 
where  made. 

Alexander  v.  Pennsylvania  Co.,  48  Oh.  St. 
623  (1891);  Pittsburg,  etc.,  Ry.  Co.  v.  Bishop, 
13  O.  C.  C.  3S0   (1896);   s.  c,  7  C.  D.  73. 

Engineer   superior   of   fireman. 

Jenkins   v.   Little  Miami   R.  R.   Co.,  2  Dis. 

49    (1S58). 


Engineer. 

An  engineer  is  the  fellow-servant  of  an  em- 
ployee working  on  a  gravel  train. —  Kumler 
v.  junction  R.  R.  Co.,  33  Oh.  St.  150   (1877). 


Engineer. 

An  engineer  is  the  fellow-servant  of  a 
brakeman  on  the  same  train. —  Railway  Co. 
v.  Ranney,  37  Oh.  St.  665  (1882);  Pittsburg, 
etc.,  Ry.  Co.  v.  Lewis,  33  Oh.  St.  196  (1877); 
Hill  v.*  Lake  Shore,  etc.,  Ry.  Co.,  22  0.  C.  C. 
291    (1901). 


Railroad  (  orporai  u  ins. 


255 


Automatic  Couplers  —  Air-brakes,    etc.,    SS    3360  -23b. 


Foreman   of  repair  gang. 

A  car   repairer   is   nut    the    fellow-servani    of 

the  foreman  of   the   repair  gang  as   concerns 

giving    notice    of   dangers    to    those    working 

under    cars. —  Lake    Shore,    etc.,    Ry.    Co,    v. 

'La valley,  36  Oh.  St.  221    (1880). 

Conductor  superior  of   engineer. 

Little  Miami  R.  R.  Co.  v.  Stevens.  20  Oh. 
415  (1851);  Lake  Shore,  etc.,  Ry.  ( '<>.  v. 
Hunter,  13  O.  C.  C.  441  (1897)  ;  s.  c,  7  0.  D. 
206;  Cleveland  etc.,  Ry.  Co.  v.  Hudsor,  22 
O.  C.  C.  5SG   (1898). 

Conductor  superior  to  brakeman. 

Railway  Co.  v.  Spangler,  44  Oh.  St.  471 
(188G);  Cleveland,  etc..  R.  R.  Co.  V.  Kear.v. 
3  Oh.  St.  201  (1854);  Cleveland,  etc.,  Ry.  Co. 
v.  Hudson,  22  O.  C.  C.  586    (1898). 

Section    hand    and    fireman    fellow-ser- 
vants. 

Whaalen  v.  Mad  River,  etc.,  R.  R.  Co.,  8  Oh. 

St.  249   (1858). 


Inspectors     and     brakemi  a     i* -IIuw-m  i- 

VillltS. 

Railroad   Co.  \.   Fitzpat 
(1884);  I  olumbus,  etc.,  R.  R.  I  o.  v.  Webb,  12 
Oh.  St.  17.".  i  1861  I.     See  I 
Co.  v.  Gilday,   L6  O.  C.  C.  649 
9  C.   I).  27.  ' 

Brakcmcn  fellow-servants. 

Hawks  v.  Lake  Shore,  etc.    Rj    I  o.,  16 
C.  ::77    i  L896)  ;  .-.  c.,  8  C.  D    ill. 

Section  boss. 

(  iompanj    cannot   be  held  for  failure  i  I 
t ion   boss  to  look   up  and   have  knowled 
time    of  train-  so  a-  to  avoid  collisions  with 
section    handcar.      Railway   Co.   \.    Leech,   41 
Oh.   st.   :;ss    |  i- 

Conductor  and  car  repairer  fellow-ser- 
vants. 

Johnson   V.  Cleveland,  etc.,   !•''■     Co.,  11  0    ' 
C.  553    (1896)  ;   8.  <■..  5  C.  D. 


§  3365-23.  EQUIPMENT  AND  OPERATION  OF  RAILROAD  CARS  WITH 
AUTOMATIC  COUPLERS  AND  AIR-BRAKES.—  That  every  railroad  corporation 
operating  a  railroad  or  part  of  a  railroad  in  this  state,  shall,  on  or  before  the  first  day 
of  August,  A.  D.  1900,  equip  and  furnish  all  cars,  owned  and  leased,  used  in  its  ser- 
vice in  this  state  with  automatic  couplers,  coupling  automatically,  and  which  can  be 
uncoupled  without  the  necessity  of  men  going  between  the  ends  of  the  cars;  and  shall 
equip,  furnish  and  operate  all  cars  in  its  passenger  service,  and  not  less  than  thirty 
per  cent,  of  the  cars  in  its  freight  service  with  air-brakes;  and  no  freight  train  sLall. 
after  such  date,  be  run  by  any  such  railroad  corporation  over  any  part  of  its  road 
lying  within  this  state  unless  at  least  twenty-five  per  cent,  of  the  cars  composing 
such  freight  train  are  so  equipped,  furnished  and  operated  with  perfectly  acting  air- 
brakes and  so  as  to  enable  the  engineer  to  control  the  speed  of  the  train  without  the 
use  of  hand-brakes;  provided,  that  on  or  before  January  1,  1900,  twenty-five  (25) 
per  cent,  of  all  the  automatic  couplers  and  air-brakes  hereinbefore  provided  to  be  put 
upon  cars  shall  be  so  furnished  on  or  before  January  1,  1900.  (February  27,  1900, 
94  v.  25;  April  25,  1898,  93  v.  286;  April  14,  1893,  90  v.   184.) 

§  3365-23a.  SEMI-ANNUAL  REPORT  TO  BE  MADE  BY  RAILROAD  COM- 
PANIES.— And  it  shall  be  the  duty  of  any  railroad  corporation  operating  a  railroad 
or  part  of  a  railroad  within  this  state,  to  report  to  the  commissioner  of  railroads 
every  six  months  after  the  passage  of  this  act,  and  until  the  first  day  of  August.  A  D. 
1900,  the  number  and  class  of  cars  in  their  service  equipped  with  such  automatic 
couplers  and  air-brakes,  and  the  number  of  cars  not  so  equipped;  to  report  upon 
blanks  furnished  by  such  commissioner.  (February  27.  1900,  94  v.  25;  April  25, 
1898,  93  v.  286.) 

§  3365-23b.  INSPECTOR  OF  AUTOMATIC  COUPLERS,  ETC.;  APPOINTMENT. 
TERM,  VACANCY,  ETC.—  An  inspector  of  automatic  couplers,  air  brakes  and  auto- 
matic power  brakes  on  railroad  cars,  tenders  and  engines  shall  be  appointed  by  the 
commissioner  of  railroads  and  telegraphs  within  thirty  days  after  this  act  goes  into 
effect,  who  shall  hold  office  for  two  years,  unless  sooner  removed  for  cause,  and  until 
his  successor  is  appointed  and  qualified.  At  any  time  a  vacancy  occurs  in  the  office, 
the  commissioner  of  railroads  and  telegraphs  shall  immediately  fill  the  vacancy  by 
appointment. 


256  Private  Corporations  in  Ohio. 

.automatic   Couplers,    Air-brakes,    etc. —  Inspector   of,    §§    3365-23c-3365-23f. 

QUALIFICATIONS. —  No  person  is  eligible  to  the  office  who  is  an  officer  or 
employe  of  a  railroad  company  or  owns  or  is  interested,  directly  or  indirectly,  in  the 
stocks  or  bonds  of  any  railroad  company,  or  who  has  not  had  at  least  seven  years' 
experience  in  the  transportation  department  on  some  line  of  railroad  of  more  than 
thirty  miles  in  length,  operated  in  the  state  of  Ohio.     (May  12,  1902,  95  v.  658.) 

§  3365-23c.  BOND  AND  OATH. —  Before  entering  on  his  duties,  the  inspector 
shall  give  bond  to  the  state  of  Ohio  in  the  sum  of  three  thousand  dollars,  with  two 
or  more  sureties,  or  a  bond  and  security  company,  acceptable  to  the  commissioner 
of  railroads  and  telegraphs,  conditioned  for  the  faithful  performance  of  his  duties, 
and  shall  also  take  the  usual  oath  of  office,  which  oath  and  bond  with  the  approval  of 
tho  commissioner  endorsed  thereon,  shall  be  deposited  with  the  secretary  of  state. 
(May  12,  1902,  95  v.  659.) 

§  3365-23d.  SALARY  AND  EXPENSES.—  Said  inspector  shall  be  paid  a  salary 
of  fifteen  hundred  dollars  per  year,  and  all  necessary  expenses,  not  to  exceed  one 
thousand  dollars  in  any  one  year,  which  shall  be  paid  in  the  manner  now  provided 
by  section  250-2  for  the  salary  and  expenses  of  the  department  of  railroads  and  tele- 
graphs. Provided,  that  in  addition  to  the  fifteen  thousand  dollars  ($15,000)  now 
authorized  by  said  section  for  said  department  of  railroads  and  telegraphs,  there  shall 
be  assessed  yearly  in  the  manner  and  upon  the  corporations  as  provided  in  said  sec- 
tion, the  sum  of  two  thousand,  five  hundred  dollars  ($2,500)  to  pay  the  salary  and 
expenses  provided  for  in  this  act.  Provided  further,  that  for  the  purpose  of  paying 
the  salary  and  expenses  provided  for  in  this  act  until  the  assessments  herein  pro- 
vided for  are  available,  there  is  hereby  appropriated  out  of  any  money  in  the  state 
treasury  to  the  credit  of  the  general  revenue  fund  and  not  otherwise  appropriated, 
the  sum  of  three  thousand  dollars,  and  that  for  the  purpose  of  paying  the  salary  and 
expenses  provided  for  in  this  act  from  the  first  day  of  August,  nineteen  hundred  and 
three  to  the  fifteenth  day  of  February,  nineteen  hundred  and  four,  there  is  hereby 
appropriated  the  sum  of  one  thousand,  six  hundred  and  five  dollars,  or  so  much 
Thereof  as  may  be  paid  into  the  state  treasury  pursuant  to  the  provisions  of  this  act. 

He  shall  have  his  office  in  the  state  house  in  the  office  of  the  commissioner  of 
railroads  and  telegraphs,  and   shall   be  under  the  supervision  of  said  commissioner. 

Such  inspector  shall  have  the  right  of  passing  in  the  performance  of  his  duties 
upon  all  the  railroads  within  the  state,  and  upon  all  trains,  and  any  part  thereof 
free  of  charge.     (May  12,  1902,  95  v.  659.) 

|3365-23el  §  3565-23e.  DUTIES  OF  INSPECTOR.— It  shall  be  the  duty  of  the 
inspector  to  inspect  the  couplers,  air  brakes  and  automatic  power  brakes  found  on 
any  road  in  Ohio,  and  make  weekly  reports  of  his  inspection  to  the  commissioner  of 
railroads  and  telegraphs,  reporting  all  cars,  tenders  and  engines,  giving  number  of 
same,  road  on  which  they  are  found,  and  the  road  owning  same,  if  known,  which  is 
found  to  have  a  defective  coupler  or  brake,  describing  the  defect.  He  shall  also  on 
discovering  a  defective  coupler  or  brake,  immediately  report  the  same  to  the  super- 
intendent of  .ne  road  on  which  it  is  found  and  to  the  agent  thereof  at  the  nearest 
station,  describing  the  defect.     (May  12,   1902,  95  v.  659.) 

[3365-23fl  §  3565-23f.  PENALTY  AGAINST  COMPANY  FOR  FAILING  TO 
MAKE  REPAIRS  UPON  NOTICE. —  Any  road  whose  superintendent  or  station  agent 
shall  receive  such  notice  of  a  defective  coupler  or  brake  shall  cause  the  same  to  be 
immediately  repaired;  and  shall  be  liable  in  damages  to  any  person  injured  by  reason 
of  such  defective  coupler  or  brake,  for  any  injury  received  after  the  expiration  of 
twenty-four  hours  after  receiving  the  notice;  and  any  such  company  shall  be  liable 
in  damages  by  reason  of  any  such  defective  appliance,  for  any  injury  received.     But 


Railroad  <  Iorporai  ions.  257 


Automatic  Couplers,  Air-brakes,  etc.,  SS  3365-23;.' 


nothing  herein  shall  be  construed  to  diminish  the  existing  legal  liability  of  rail- 
roads for  injuries  to  persons  or  property.     (May  12,   1902,  95  v.  660.) 

|3365-23g|      §    3565-23g.     POWER      OF      INSPECTOR      TO      CONDEMN      CAR. 
TENDER  OR  ENGINE.—  Said  inspector  may,  on  the  discovery  of  a  defective  col 
or  brake  on  any  car,  tender  or  engine,  condemn  said  car,  tender  or  eng;:  ,rder 

the  same  out  of  service  until  repaired  and  put  in  good  working  order.  On  receiving 
from  the  inspector  an  order  condemning  any  car,  tender  or  engine,  the  employes  of 
the  road  in  charge  of  said  car,  tender  or  engine  shall  put  the  same  out  of  service  at 
the  first  freight  division  terminal.     (May  12,   1902,  95  v.   660.) 

§  3365-23h.  PENALTY  FOR  FAILURE  TO  COMPLY  WITH  THIS  ACT  —  Anj 
railroad  which  fails  to  comply  with  any  of  the  provisions  of  this  act  shall  forfeit 
and  pay  to  the  state  of  Ohio,  the  sum  of  twenty-five  ($25.00)  dollars  for  each  day 
such  defective  coupler  or  brake  is  kept  in  use  contrary  to  the  provisions  hereof,  to  be 
collected  in  a  civil  suit  in  any  county  in  the  state  where  service  of  process  can  be  had 
on  said  road.  It  is  hereby  made  the  duty  of  the  attorney  general  or  the  prosecut- 
ing attorney  of  any  county  in  which  such  company  has  a  line  of  railroad,  and  such 
officer  shall,  on  request  from  the  inspector,  immediately  commence  and  prosecute, 
without  unnecessary  delay,  proceedings  to  collect  said  sum,  and  the  sum  so  collected, 
less  10  per  cent,  fees  for  collecting  same,  due  such  officer,  shall  be  paid  to  the  gen- 
eral revenue  fund  of  the  state.     (May   12,   1902,  95  v.  660.) 

§  3365-23i.  PENALTY  AGAINST  OFFICERS  OF  COMPANY  FOR  NON- 
COMPLIANCE.—  Any  superintendent  conductor  or  other  officer  or  employe  of  any 
road  who  shall  wilfully  refuse  or  neglect  to  comply  with  any  of  the  provisions  of  this 
act  shall  be  guilty  of  a  misdemeanor,  and  on  conviction  thereof  fined  any  sum  not 
less  than  twenty-five  or  more  than  five  hundred  dollars,  and  be  personally  liable  for 
any  injuries  resulting  to  any  employes  therefrom.     (May  12.   1902,  95  v.  660.) 

§  3365-24.  AS  TO  CARS  CONSTRUCTED  OR  REPAIRED  AFTER  JULY  1. 
1893. —  Every  railroad  corporation  operating  a  railroad  or  part  of  a  railroad  in  this 
state,  shall,  after  the  first  day  of  July,  A.  D.  1893.  equip  and  furnish  all  of  its  cars 
constructed  after  such  date  with  automatic  couplers  and  air-brakes,  and  all  cars 
taken  to  its  shops  for  general  repairs  after  such  date  shall  be  equipped  and  furnished 
■with  automatic  couplers  and  air-brakes.  Provided  that  nothing  herein  shall  require 
railroad  companies  to  equip  more  than  thirty  per  cent,  of  the  cars  in  its  freight 
service  with  air-brakes,  unless  a  larger  per  cent,  is  necessary  to  provide  at  least 
twenty-five  per  cent,  of  all  the  cars  in  each  freight  train  with  such  air-brakes  and 
as  aforesaid.     (April  14,  1893,  90  v.  184.) 

§  3365-25.  EQUIPMENT  OF  ENGINES  WITH  POWER-BRAKES  —  E eery  rail- 
road corporation  operating  a  railroad  or  part  of  a  railroad  in  this  state,  shall,  after  the 
first  day  of  July,  A.  D.  1894,  equip  and  furnish  each  of  its  engines  used  in  the  trans- 
portation of  trains  in  this  state  with  a  power-brake.     (April   14,   1893,  90  v.   184.) 

§  3365-26.  REPORT. —  And  it  shall  be  the  duty  of  any  railroad  corporation 
operating  a  railroad  or  part  of  a  railroad  in  this  state,  to  report  to  the  commissioner 
of  railroads  at  the  earliest  practical  date  after  the  passage  of  this  act.  the  number 
and  class  of  cars  in  their  service  equipped  with  such  automatic  couplers  and  air- 
brakes, and  the  number  of  cars  not  so  equipped.     (April  14.  1893.  90  v.   184.) 

§  3365-27.  PENALTY. —  Any  railroad  corporation  which  shall  fail  to  comply 
with  any  of  the  provisions  of  this  act,  shall  forfeit  and  pay  to  the  state  of  Ohio  not 

LAW   GOV.    PRIV.    COR.  — 17 '. 


258  Private  Corporations  in  Ohio. 


Overhead  Wires  —  Freight  Train  — Rates,  etc.,  §§  3365-28-3366. 

less  than  one  thousand  dollars  nor  more  than  five  thousand  dollars,  to  be  recovered 
in  an  action  to  be  brought  by  the  attorney-general  in  the  name  of  the  state  of  Ohio, 
and  which  shall  be  prosecuted  in  accordance  with  the  provisions  of  section  210  of 
the  Revised  Statutes.     (April  14,   1893,   90  v.   184.) 

§  3365-28.  CONSTRUCTION  OF  OVERHEAD  WIRES.—  Hereafter  all  telegraph, 
telephone,  electric  light  or  other  wires  of  any  kind  constructed  over  the  line  of  any 
steam  railroad  within  the  state  of  Ohio  shall  be  put  upon  good  substantial  poles  of  a 
size  not  less  than  twelve  inches  in  diameter  at  the  bottom  and  not  less  than  six 
inches  in  diameter  at  the  top  and  that  they  be  set  in  the  earth  not  less  than  one- 
sixth  of  their  length  and  well  tamped. 

Double  cross-arms  shall  be  used  in  all  cases  and  all  wires  shall  be  insulated  with 
glass  or  porcelain  insulators,  and  securely  fastened  to  both  cross-arms. 

All  wires  to  clear  the  top  of  the  rails  at  least  twenty-five  feet,  except  in  cases  of 
trolley  wire  crossings,  when  such  height,  as  may  be  agreed  upon,  is  approved  by  the 
commissioner  of  railroads  and  telegraphs  shall  govern.  Where  there  is  side-strain, 
poles  shall  be  well  guyed  or  braced.     (April  21,  1898,  93  v.  154.) 

See  §  3337-18  and  notes. 

§  3365-29.  DUTY  OF  COMMISSIONER  OF  RAILROADS  AND  TELEGRAPHS. 
—  It  shall  be  the  duty  of  the  commissioner  of  railroads  and  telegraphs  to  see  that  the 
provisions  of  this  act  are  enforced  and  he  shall  have  the  power  to  cause  the  removal 
of  any  such  telegraph,  telephone,  electric  light  or  other  wires  hereafter  constructed 
over  any  railroad  within  the  state  of  Ohio,  not  constructed  according  to  the  provi- 
sions of  this  act.     (April  21,  1898,  93  v.  154.) 

An  Act  to  Better  Protect  the  Lives  of  Railway  Employes  and  the  Travel- 
ing    Public,     and     to     Repeal    an    Act    Therein   Xamed. 
Be  it  enacted  by  the  General  Assembly  of  the  State  of  Ohio: 

§  1.  UNLAWFUL  FOR  RAILROAD  COMPANY  TO  RUN  FREIGHT  TRAIN" 
WITH  LESS  THAN  FULL  TRAIN  CREW.—  That  it  shall  be  unlawful  for  any  rail- 
road company  in  the  state  of  Ohio,  that  runs  more  than  four  freight  trains  in  every 
twenty-four  hours,  to  run  over  their  road,  or  any  part  thereof,  outside  of  yard  limits, 
any  through  freight  train  with  less  than  a  full  train  crew,  consisting  of  five  persons; 
one  engineer,  one  fireman,  one  conductor,  and  two  brakemen  except  that  a  light 
engine  without  cars  shall  have  the  following  crew:  One  engineer,  one  fireman,  and 
one  conductor  or  flagman  when  running  a  distance  of  more  than  twenty-five  miles 
from  starting  point.     (May  10,  1902,  95  v.  522;  May  2,  1902,  95  v.  343.) 

§  2.  PENALTY. —  That  any  superintendent  or  his  assistants  or  other  officer,  or 
employe  of  any  railroad  company  doing  business  in  the  state  of  Ohio,  who  shall  send 
out  on  the  road,  or  cause  to  be  sent  out  on  any  road,  that  runs  more  than  four  freight 
trains  in  twenty-four  hours,  any  through  freight  train  whose  crew  consists  of  less 
than  those  named  in  section  one  of  this  act,  shall  be  guilty  of  a  misdemeanor,  and 
shall  be  fined  not  less  than  twenty-five  dollars  for  each  offense,  the  probate  courts 
of  the  several  counties  of  this  state  shall  have  final  jurisdiction  of  offenses  under  this 
act.     (May  10,  1902,  95  v.  522;  May  2,  1902,  95  va  343.) 

§  3.  COMMISSIONER  OF  RAILROADS  AND  TELEGRAPHS  TO  ENFORCE 
THIS  ACT. —  It  shall  be  the  duty  of  the  commissioners  of  railroads  and  telegraphs  to 
enforce  this  act.     (May  10,  1902,  95  v.  522;  May  2,  1902,  95  v.  343.) 

§  3366.  FREIGHT  RATES  TO  OR  FROM  POINTS  COMPETING  WITH  THE 
PUBLIC  WORKS. —  Every  company  whose  line  of  road  extends  to  any  place  in  the 


Railroad  ( '<  irporai  [i  i 


259 


Tariff  Rates,  etc.,   §  3307. 


vicinity  of,  or  to  a  point  of  intersection  with,  any  of  the  navigable  canals  or  i 

works  of  internal  improvement  belonging  to  the  state,  shall  fix  and  eel 

of  rates  for  the  transportation  of  merchandise,  produce,  and  other  propel 

to  or  from  such  place  or  point  of  intersection,   and   shall  not   charge  01 

higher  rate  for  transporting  similar  merchandise,  produce,  or  property  over 

distance  of  its  road,   than  is   charged   or  received   according  to   su< 

transportation  to  and  from  such  place  of  intersection.     (May  1,   18'.  1.) 


Right  to  equal  rates. 

Where  a  lower  rate  is  given  by  a  common 
carrier  to  a  favored  shipper,  which  is  intended 
to  givo  and  necessarily  gives  an  exclusive 
monopoly  to  the  favored  shipper,  affecting  the 
business  and  destroying  the  trade  of  other 
shippers,  the  latter  have  the  righl  to  require 
an  equal  rate  for  all  under  like  circumstances. 
An  injunction  may  be  obtained  to  prevent  dis- 
crimination.—  Scofield  v.  Railway  Co.,  43  Oh. 
St.   571    (1885). 

Rights     of     shippers    furnishing     small 
shipments. 

Where  a  railway  company,  as  a  common 
carrier,  in  consideration  of  the  fact  that  a 
shipper  furnished  a  greater  quantity  of 
freights  than  other  shippers  during  a  given 
term,  agrees  to  make  a  rebate  from  the  pub- 
lished tariff  on  such  freights  to  the  prejudice 
of  the  other  shippers  of  like  freights  under  the 
same  circumstances,  the  contract  so  made  is 
an  unlawful  discrimination  in  favor  of  tin- 
larger  shipper,  tending  to  create  monopoly, 
destroy  competition,  injure,  if  not  destroy,  the 
business  of  smaller  operators,  contrary  to 
public  policy,  and  will  be  declared  void  at  the 
instance  of  parties  injured  thereby. 

.And  such  a  contract  cannot  be  upheld  sim- 
ply because  the  favored  shipper  may  furnish 
for  shipment  during  the  year  a  larger  freight- 
age in  the  aggregate  than  any  other  shipper, 
or  more  than  all  others  combined.  A  discrim- 
ination resting  exclusively  on  such  a  basis 
will  not  be  sustained.  And  such  a  contract 
will  not  be  upheld  simply  because  the  busi- 
ness to  be  done  under  it  is  "largely  profit 
able  "  to  the  company. —  Scofield  v.  Railway 
Co.,  43  Oh.  St.  571    (1885). 

Same   subject. 

A  railroad  company  is  not  warranted  in 
making  a  contract  whereby  it  binds  itself  to 
carry  for  one  shipper  crude  petroleum,  or 
other  article,  at  half  the  rate  it  agrees  to 
charge  all  others  for  the  same  service,  at  the 
same  time,  and  as  part  of  the  agreement,  bind- 
ing itself  to  charge  all  other-  double  the 
amount  as  a  fixed  open  rate,  and  to  pay  such 
favored  shipper  one-half  of  it  when  collected, 
in  consideration  of  his  agreeing  to  establish 
and  maintain  a  system  of  pipe  line-  to  its 
road.     Money  so  paid   by  a   shipper   in   igno- 


rance of  the  agreement,  and   received   I 

d  shipper,  may  be  recoven  d  I 
action    for    tnonej    had    and    received    > 
former  against  the  latter.      Brundr< 
49  Oh.  St.  640   i  L892). 

Remedy   by   quo   warranto. 

A  corporation  created  by  thi  i  !  .  n 

gaged  in  carrying  g 1-  for  hire  as 

carrier,  ha-  no  franchise,  privi  • 
discriminate   in    it-   freighl    rati  -    ii 
one  shipper,  even  w  hen  it   i-  i 
so  to  secure  hi-  custom,  if  the  discrimii 
fate  will  tend  to  create  a  nopoly  by  exclud- 
ing from   their   proper  market-  the*  prodll 
'I"-    competitors    of    the    favored    -lup: 
state    ex   rel.   v.     Railway.    47    <  >h     SI      130 
(1890). 

Action  to  enforce  rebate. 

A  railroad  company  w  hose  line  « 
point  of  intersection  « ith  a  canal  ot 
cannot    make   a   valid   contracl    to   repaj 
shipper  a  portion  of  the  freight   paid  by  him, 
it   being  the  regular  rate  posted  bj    I 
pany  and  received   from  other   shippers, 
contract  being  prohibited  by  thi-  section.    An 
action  cannot  lie  maintained  to  enforces  ; 
i-e    of    such    repayment. —  Baltimore,    etc..    R. 
I.',    i  o.    v.    Diamond  foal    <  ....   61    I  »h     Si 
L899). 

Purpose  of  act. 

The  intent    of  t  he  -ta!  n<-  -!  rain 

companies     subject     to    it-     provisions 
charging  the  maximum  rate-  allowed  by  their 
charters,  but  only  to  prevent  them  from  I 
rate-  for  longer  distances  below  the  maximum 
and  below  the  rati-  fixed  for  shorter  disl 
either  to  the  prejudice  of  the  canal-  bel( 
to  the  -late,  or  of  the  public  whose  shipi 
might     l.e     for     the     shorter     distal 
Campbell    v.    Marietta,  etc.,    R.    R.   Co.,  23  Oh. 
St.   lt;s.  I!U    |  1872). 

Rights    of    shipper    when    agent    fraud- 
ulently overcharges. 
See   Maple  v.   Railroad  Co.,  40  Oh.  St 

When  consignee  cannot   sue. 

(  onsignee  cannot   sue  when  lie   has  a  deliv- 
ered price  on  the  goods. —  Thompson  v.  > 
land,  etc.,  Ry.  <  o.,  11   W.  L.  B.  ill: 


§  3367.  TARIFF  OF  RATES  TO  BE  PUBLISHED.  AND  HOW  CHANGED  — 
Every  such  company  shall  publish  its  tariff  of  rates  so  established,  on  property  con- 
signed to  and  from  such  places  or  points  of  intersection,  and  cause  the  same  to  be 


260  Private  Corporations  in  Ohio. 

Tariff  Rates  —  Discrimination  as  to  Freight,  etc.,  §S  3368-3371. 

kept  conspicuously  posted  at  the  several  business  stations  on  its  road;  no  such  com- 
pany, its  officers  or  agents,  shall  charge  or  receive,  directly  or  indirectly,  for  trans- 
porting any  property  consigned  as  aforesaid,  any  less  rate  than  is  designated  on  such 
printed  card,  until  such  rate  is  changed  by  an  order  of  the  board  of  directors  of  such 
company  and  at  least  ten  days'  notice  of  such  change  given  by  bill  or  card  to  be  posted 
as  aforesaid;  and  no  such  company,  its  officers,  or  agents,  shall  evade,  or  attempt  to 
evade,  by  drawback,  free  warehousing,  or  in  any  other  manner,  the  payment  of  full 
freightage,  according  to  the  printed  tariff  of  rates,  as  herein  provided.  (May  1,  1852, 
50  v.  205,  §  2.) 

Constitutionality. 

This  section  is  valid  as  an  exercise  of  the  police  power  of  the  state. —  See  Railroad  Co.  v. 

Fuller,  17  Wall.   (U.  S.)  560  (1873). 

§  3368.  CERTAIN  CONTRACTS  INHIBITED. —  A  company  whose  road  forms 
part  of  any  line  of  railway  between  points  common  to  any  other  line,  shall  not  con- 
tract or  agree  with  any  person,  or  with  any  other  railroad  company  or  companies, 
having  a  road  or  line  of  roads,  or  forming  a  part  of  any  line  of  roads,  between  the 
same  points,  not  to  carry  freight  or  passengers  to  or  from  such  common  points,  nor 
shall  it  refuse  to  receive  or  carry  any  freight  or  passengers  brought  to  it  to  be  so 
carried.     (April  11,  1861,  58  v.  74,  §   1.) 

See  Metropolitan  Trust  Co.  v.  Columbus,  etc.,  Ry.  Co.,  95  Fed.  18   (1899). 

§  3369.  WHEN  TRUNK  ROADS  MUST  NOT  DISCRIMINATE  BETWEEN 
OTHER  ROADS. —  When  any  railroad  is  a  trunk  road,  or  in  the  nature  of  a  trunk 
road,  and  at  or  near  the  same  place  connects  with  or  is  intersected  by  two  or  more 
other  railroads  tributary  to  or  competing  lines  for  business  to  or  from  such  trunk 
road,  or  to  or  from  points  on  or  beyond  the  same,  any  company  or  person  operating  or 
using  such  trunk  road  shall  transport  passengers  and  freight  going  to  or  coming 
from  such  tributary  or  competing  roads  without  making  any  discrimination  in  the 
charges  therefor,  directly  or  indirectly,  for  or  against  either  of  such  roads;  and  the 
company  or  person  owning  or  controlling  any  such  trunk  road  shall  not,  by  lease  or 
otherwise,  permit  the'  same  to  be  used  or  operated  in  any  manner  contrary  to  the 
foregoing  provision.     (April  11,  1861,  58  v.  74,  §  2.) 

§  3370.  MUST  FORWARD  FREIGHT  BY  LINE  NAMED  BY  SHIPPER.—  Every 
company  shall  ship  all  freight  that  comes  within  its  control  by  the  railroads  over 
which  it  is  ordered  to  be  conveyed  by  the  shipper;  and  any  company  whose  agent 
knowingly  diverts,  or  permits  to  be  diverted,  any  freight  that  comes  under  his  control 
from  the  railroad  over  which  the  same  is  ordered  to  be  conveyed,  shall  forfeit  and  pay 
to  the  company  from  which  such  freight  is  diverted  three  times  the  amount  received 
for  transporting  the  same,  and  such  agent  shall  be  deemed  guilty  of  a  misdemeanor 
and  upon  conviction  thereof  shall  be  fined  not  more  than  one  hundred  dollars,  or 
imprisoned  in  the  county  jail  not  more  than  thirty  days,  or  both.  (April  11,  1861, 
58  v.  74,  §  3.) 


Recovery  at  common  law. 

A  contract  between  a  shipper  and  the  de- 
fendant common  carrier,  whereby  the  defend- 
ant was  to  carry  goods  to  its  terminal  point 
and  there  deliver  them  to  the  plaintiff,  also 
a  common  carrier,  for  transportation  to  the 
point  of  destination,  was  not  a  contract  made 
by  other  parties  for  the  plaintiff's  benefit,  but 
(inly  embodied  an  incidental  advantage  which 

§    3371.     PRECEDING   SECTIONS   MAY   BE   ENFORCED   BY   INJUNCTION.— 
On  complaint  of  the  violation  of  any  of  the  provisions  of  the  three  preceding  sections, 


the  plaintiff  might  derive  from  earnings  for 
part  of  the  transportation:  and  no  right  of 
action  accrued  to  the  plaintiff  against  the 
defendant  for  a  violation  of  the  contract  in 
giving  the  extended  transportation  to  a  car- 
rier other  than  the  plaintiff. —  St.  Louis,  etc., 
Co.  v.  Missouri,  etc.,  Ry.  Co.,  35  Mo.  App.  272 
(1889). 


Railroad  Corporations.  261 


Freight  Traffic  —  Discrimination  in,  SS  3372  3373-2. 


by  petition  as  in  other  actions,  the  observance  of  the  same  may  be  enforced  by 
injunction,  and  the  party  violating-  the  same,  or  any  of  them,  shall  be  Liable  in  dam- 
ages to  the  person  or  company  injured,  for  the  injury  sustained  in  consequence 
thereof.     (April  11,  1861,  58  v.  74,  §  4.) 

g  3372.  NOT  TO  DISCRIMINATE  BETWEEN  WAY  AND  THROUGH  FREIGHT. 
—  Every  company  whose  line  of  road,  or  any  part  thereof,  is  withir.  this  state, 
so  employ  its  rolling  stock  used  for  the  transportation  of  freight  as  to  afford  as  ample 
facilities  for  the  transportation  of  local  and  way  freight,  delivered  to  or  discharged 
by  it  along  its  line  of  road,  as  it  affords  for  the  transportation  of  through  freight, 
in  proportion  to  the  amount  of  its  rolling  stock,  and  shall  not  give  facilities  for 
transportation  to  either  class  of  freight  in  preference  to  the  other.  (April  14,  1863, 
60  v.  93,  §   1.) 

Discrimination  between  long  an'l  «=hor+  JipuI. 

See  Campbell  v.  Marietta,  etc.,  R.  R.  Co..  23  Oh.  St.  168   (1872). 

§  3373.  NOR  AGAINST  POINTS  IN  THE  STATE.— No  company  or  person 
owning,  controlling,  or  operating  a  railroad,  in  whole  or  in  part,  within  this  state, 
shall  charge  or  receive  for  transportation  of  freight  for  any  distance  within  this 
state  a  larger  sum  than  is  charged  by  the  same  company  or  person  for  the  transpor- 
tation in  the  same  direction,  of  freight  of  the  same  class  or  kind,  for  an  equal  or 
greater  distance  over  the  same  railroad  and  connecting  lines  of  railroad;  and  every 
such  company  or  person  who  violates,  or  permits  to  be  violated,  the  provisions  of  this 
section,  shall  forfeit  and  pay  to  the  party  aggrieved  a  sum  equal  to  double  the 
amount  of  the  over-charge,  but  in  no  case  less  than  twenty-five  dollars,  and  shall 
also  for  every  such  unlawful  act,  forfeit  and  pay  to  the  state  a  penalty  of  not  less 
than  one  hundred  nor  more  than  one  thousand  dollars,  to  be  recovered  in  a  civil 
action,  brought  in  the  name  of  the  state,  by  the  prosecuting  attorney  of  the  county 
wherein  such  offense  was  committed,  as  part  of  his  official  duties,  whenever  com- 
plaint is  made  to  him,  and  he  is  satisfied  that  the  provisions  of  this  section  have  been 
violated.     (March  11,  1872,  69  v.  27,  §   1.) 

See  §  3366. 

§  3373-1.  RAILROAD  COMPANIES  MUST  FURNISH  EQUAL  FACILITIES 
TO  SHIPPERS  OF  SAME  CLASS;  DAMAGES.— It  shall  be  the  duty  of  all  railroad 
companies  and  of  all  persons  operating  a  railroad,  to  secure  and  extend  to  all  per- 
sons, companies  and  corporations,  the  same  and  equal  opportunities  and  facilities  for 
receiving  and  shipping  freights  of  all  kinds,  of  the  same  class  (and  the  same  and 
equal  opportunities  and  facilities  for  receiving  and  shipping  freights  of  all  kinds  of 
the  same  class),  that  such  railroad  company  or  the  person  operating  such  railroad, 
extends  to,  has  used  or  enjoys,  of  and  concerning  freights  owned  by  such  railroad  com- 
pany, or  the  person  operating  such  road  or  any  of  the  officers  or  stockholders  therein, 
or  in  which  it,  they  or  either  of  them  have  any  interest  and  any  railroad  company  or 
person  operating  any  railroad  failing  to  comply  with  or  observe  the  provisions  or 
requirements  of  this  section,  shall  be  liable  in  a  civil  action  to  the  party  injured  for 
the  damages  sustained,  but  for  any  violation  of  this  section  the  recovery  in  any  such 
action  shall  be  not  less  than  five  hundred  dollars.     (April  29,   1891,   88  v.  429.) 

§  3373-2.  MESSAGE  FOR  PASSENGER  DELAYED  BY  ACCIDENT  OR  COL- 
LISION MUST  BE  SENT. —  That  in  case  of  any  accident  to  or  collision  between  any 
railroad  train  or  trains,  by  reason  of  which  any  passenger  is  delayed,  it  shall  be 
unlawful  for  any  telegraph  operator,  at  any  office  on  the  line  of  such  railroad,  whether 
he  is  employed  by  a  railroad  company  or  a  telegraph  company,  or  both,  or  whether 


262 


Private  Corporations  in  Ohio. 


Passenger  Tare,  Rates  of,  §  3374. 


the  office  or  station  of  which  he  has  charge  is  a  general  commercial  office,  a  railroad 
telegraph  office  only,  or  otherwise,  to  fail,  neglect,  or  refuse  on  tender  of  the  usual 
or  regular  charge  at  regular  commercial  offices,  to  receive  from  any  persons  so  delayed, 
any  telegram  tendered  during  that  time  for  transmission,  or  to  send  the  same  direct, 
to  the  person  and  point  designated  forthwith,  and  without  any  alteration,  revision  or 
approval  of  any  person,  and  any  such  telegraph  operator  failing  to  observe  or  violat- 
ing any  of  the  provisions  of  this  section,  shall  be  fined  not  less  than  fifty  dollars 
($50.00),  nor  more  than  five  hundred  dollars  ($500.00),  and  stand  committed  until 
the  fine  and  costs  are  paid,  and  if  such  violation  arose  from  observing  any  order  or 
rule  of  his  employer,  his  employer  shall  repay  to  him  such  fine  and  costs,  and  the 
same  may  be  recovered  in  a  civil  action.     (April  29,  1891,  88  v.  429.) 

§  3374.  KATES  OF  PASSENGER  FARE  PRESCRIBED.—  A  company  operating 
a  railroad,  in  whole  or  in  part,  in  this  state,  may  demand  and  receive  for  the  trans- 
portation of  passengers  on  its  road  not  exceeding  three  cents  per  mile,  for  a  distance 
of  more  than  eight  miles;  but  the  fare  shall  always  be  made  that  multiple  of  five 
nearest  reached  by  multiplying  the  rate  by  the  distance.  (April  6,  1876,  73  v. 
102,  §  13.) 


What  multiple  may  be  charged. 

A  railroad  company  may  charge  as  fare 
that  multiple  of  five  which  is  nearest  to  the 
product  produced  by  multiplying  the  rate  of 
three  cents  per  mile  by  the  distance,  whether 
such  multiple  is  above  or  below  such  product. 
If  such  product  should  be  equi-distant  from 
the  multiple  below  and  the  one  above,  the 
company  may   charge  as  fare  either  multiple. 

—  C.  C.  C.  &  St.  L.  Ry.  Co.  v.  Wells.  Gl  Oh. 
St.  268  (1809).  See  Railroad  Co.  v.  Skillman. 
:;'.i  Oh  St.  441  (1883).;  Heaton  v.  Cincinnati, 
etc.,  R.  R.  Co.,  1  N.  P.  433  (1S94);  s.  c,  2 
Dec.   47. 

Right  to   establish   ticket   rate   and   car 
rate. 

A  railroad  company  may  charge  a  higher 
price  for  carrying  passengers  when  the  fare  is 
paid  on  the  train  than  it  does  at  its  ticket 
offices,  provided  the  price  thus  charged  is 
reasonable,  and  the  fare  charged  on  the  train 
<U)p~  nut  exceed  the  maximum  allowed  by  law. 

—  Railroad  Co.  v.  Skillman,  39  Oh.  St.  444 
(1883).  See  Smith  v.  Pittsburg,  etc.,  Ry.  Co., 
23  Oh.  St.   10   (1872). 

Duty     of     passenger     when     more     than 
legal  rate  is  demanded. 

If  a  railroad  company  fix  two  rates  of  pas- 
senger fare,  to  wit,  a  ticket  rate  and  a  car 
rate,  the  former  within  and  the  latter  beyond 
the  limits  of  its  authority,  and  the  conductor 
of  the  train,  under  the  direction  of  the  com- 
pany, refuse  to  accept  from  the  passenger  less 
than  the  illegal  and  unauthorized  rate,  it  is 
not  necessary,  to  entitle  the  passenger  to  re- 
main (in  the  train,  to  tender  more  than  the 
ticket  rate,  although  the  company  might  have 
fixed  such  ticket  rate  at  a  higher  sum.  Quaere, 
whether  any  tender  is  necessary  in  such  case. 

-  Smith  v.' Pittsburg,  etc.,  Ry.  Co.,  23  Oh.  St. 
10    (1872). 


Distance    less    than    eight    miles  —  what 
is   reasonable. 

Whether  the  rate  of  passenger  fare  fixed  by 
a  company  under  this  section  for  distances 
less  than  eight  miles  is  reasonable  or  not  is  a 
question  of  fact  for  the  jury,  to  be  determined 
under  such  instructions  by  the  court  as  the 
circumstances  of  the  particular  case  may  re- 
quire.—  Smith  v.  Pittsburg,  etc.,  Ry.  Co.,  23 
Oh.  St.  10  (1872):  Railroad  Co.  v.  Skillman, 
39  Oh.  St.  444  (1883).  See  Peters  v.  Railroad 
Co..  42  Oh.  St.  275  (1884);  Campbell  v.  Mari- 
etta, etc.,  R.  R.  Co.,  23  Oh.  St.  108,  190 
(1S72). 

Unit  of  measurement. 

The  unit  of  measurement  provided  by  this 
section  is  one  mile  and  fractions  of  a  mile 
are  not  to  be  counted.  The  words  "  more  than 
eight  miles  "  are  equivalent  to  nine  miles. — 
See  Cleveland,  etc.,  Rv.  Co.  v.  Wells,  65  Oh. 
St.    313    (1901). 

Rights  acquired   under   special   charter. 

Special  privileges  conferred  on  a  railroad 
company  by  a  private  charter,  granted  under 
the  constitution  of  1802.  do  not"  so  inhere  in 
the  road  constructed  under  such  charter  as 
necessarily  to  pass  to  any  corporation  which 
may  have  acquired,  under  subsequent  legisla- 
tion, the  right  to  operate  the  same. —  Shields 
v.  State.  20  Oh.  St.  SO  (1875):  s.  c.  95  U.  S. 
319:  Pittsburg,  etc.,  R.  R.  Co.  v.  Moore,  33 
Oh.  St.  3S4   (1878). 

Same  subject. 

Railmad  companies  incorporated  before 
is:,  1.  which  avail  themselves  of  the  general 
corporation  act  by  becoming  parties  to  leases, 
are  to  be  regarded  as  thereby  accepting  a  pro- 
vision of  said  act  within  the  meaning  of 
§  3233,  thereby  relinquishing  all  rights  under 
their    charters    inconsistent   with    the   general 


Railroad  <  !orpor  \  i 


263 


Passenger  Fare,  Rates  of,  g  3.374. 


-corporation  law.  The  right  to  demand  and 
lake  fare  free  from  legislative  control  i  on< 
of  the  rights  thus  relinquished,  <  incinnati, 
etc.,  R.  R.  Co.  v.  Cole,  29  Oh.  St.   126   (1876). 

'What  is  a  ticket. 

A  ticket  is  a  convenient  symbol  to  represenl 
the  fact  that  the  bearer  lias  paid  to  the  com 
pany  the  agreed  price  for  his  conveyance  upon 
the  road  to  the  place  therein  designated. 
See  Frank  v.  Ingalls.  41  Oh.  St.  560,  563 
(18S5). 

Lost  tickets,  rights   of  owner. 

The  purchaser  of  a  nontransferable  com- 
mutation ticket,  who  has  lost  it,  and  refuses, 
on  account  of  such  loss,  to  pay  his  fare  upon 
a  train,  cannot  maintain  an  action  againsl 
the  company  for  being  ejected  from  the  train. 
—  Crawford  v.  Cincinnati,  etc..  R.  R.  Co.,  26 
Oh.  St.  580  (1875). 

Right    of    holder    of    fraudulently     ob- 
tained ticket. 

When  the  j)ossession  of  a  railroad  passenger 
ticket,  which  entitles  the  holder  to  a  firsl 
class  passage  between  points  named  therein, 
has  been  fraudulently  obtained  from  the  com 
pany,  a  person  purchasing  such  ticket  from 
the  holder  thereof,  although  for  value  and 
without  notice  of  equities,  acquires  no  title 
thereto. —  Frank  v.  Ingalls,  41  Oh.  .St.  560 
(1885). 

Removal  from  cars  on  refusal  to  pay. 

A  railway  company  has  the  right  to  require 
passengers  to  pay  fare,  and  a  rule  directing  its 
conductors  to  remove  from  the  cars  those  who 
refuse  to  comply  with  the  requirement  is 
reasonable. —  Shelton  v.  Lake  shore,  etc.,  Ry. 
Co.,  29  Oh.  St.  214  (1S76).  See  §  3434,  note-: 
Crawford  v.  Cincinnati,  etc..  R.  R.  Co..  26  Oh. 
St.  580  (1875):  Railroad  Co.  v.  Skillman,  39 
Oh.  St.  444  (1883):  Corrv  v.  Cincinnati,  etc., 
R.  R,  Co.,  3  Gaz.  90   (185*9). 

Measure    of    damages    for   ejectment    on 
refusal  to  pay  illegal  rate. 

A  person  is  only  entitled  to  compensatory 
damages  where  his  object  in  taking  passage 
on  the  train  was  to  be  ejected  and  to  bring 
suit  against  the  company. —  See  Cincinnati. 
etc.,  R":  R.  Co.  v.  Cole,  29' Oh.  St.  126  (1876). 

Time,    manner,    and   place    of    expulsion 
from  train. 

See  Railroad  Co.  v.  Skillman.  .19  Oh.  St.  444 
(1883);  Crawford  v.  Cincinnati,  etc..  R.  R. 
Co.,  26  Oh.  St.  580  (1S75). 

Contract  is  for  continuous  passage. 

In  the  absence  of  any  agreement  or  rule  or 
regulation  to  the  contrary,  the  obligation 
created  by  a  sale  of  the  ticket  was  for  one 
continuous  passage,  and  if  the  passenger  vol- 
untarily left  the  train  at  an  intermediate 
station  while  the  carrier  was  engaged  in  the 
performance  of  its  contract,  he  thereby  re- 
leased  it  from  further  performance,   and   had 


iii   to  demand  Bucb   peri 
other  train  al  anoth 
road   <  o     3  l  Oh 
etc.,   I,\   R.  Co.   v.    Bartrain,    II  0 

Rights      0f      passenger      taking       u 
train. 

Where    a    person    has    a    tii 
from  a  company,  entitling  him  to 
from  a  certain  Btation  to  another  i  • 

of  it-  road,  and   is  good  only  on  ti    i 
ping  at  his  destination,  is,  by  the  fault  i 
company's    station   agent,    induced    • 
train    that    doc    not,    under    the    schedul 
a1   3uch  plai  -  a  consequent 

by  the  conductor  on  calling  for  his  I  i 
before    reaching    his    destination,    such 
-how   a    right    in    the    pa 

my   to   recover   as    for   a    tori 
merely    for    breach    of    contra  burg, 

etc.,    l:.\ .    Co.    \.    Reynolds,    55    <  lh.    Si 
I  1896).     sec    Pennsylvania    <  o,    v.   Went 
Oh.   St.  333    (1881);    Easkins   v.   La 
etc.,  Ry.  <  o.,   1  W.  I..  B.  951 

Free    pass  —  liability    for    negligence. 

The    validity   of  a   stipulation   exempti 
carrier  from   liability   for  negligent  e   m 

determined     by    the    law     of    the    pli 

made.-- Know lton  v.  Erie  Ry.  Co.,  L9  Oh.  St 

260    (1869). 

Drover's     ticket  —  liability      for     negli- 
gence. 

A  stipulation  in  a  drover's  ticket  exen 
the  company    from   liability    for   negligence    i- 
void. —  Cleveland,    etc.,    R.    R.   <  ■  I    irran, 

19  Oh.  St.  1    (1869). 

Tender,  when  not  good. 

An  oiler  to  pay  the  fare  to  an  employee  on 
the  train  unauthorized  to  receive  the  sa 
not   an    offer  to   the  company,   and 
cut  itle    the     pers  >n    to  ■    _  •  land, 

etc..   R.    R.   (  o.    v.    Bartrain,    11    Oh.    St.   457 
(1860). 

When  tender   of   fare   iuust   be   made. 
A  person   refusing  to  pay   fare  acquin 

right   to  remain  on  the  train  l.y  i  Bering  I 
the    usual     fare    after    the     train 
stopped    for    the   purpose    of   ejecting    him. — 
Railroad    Co.     v.    skillman.    39    Oh.    St.    444 

- 

Authority   of   agent    to    sell   tickets. 

An    agent    authori  -  -     and 

stamp   and    deliver    the    same   upon 

pay    therefor,    cannot    bind    his  i  y    by 

stamping  and  delivering  such  tickets,  without 
the   knowli  nsent    of  it-    : 

cer-.  to  a  thini  Id  by  him.  and 

to  he  paid   for  when   -old. —  Frank  v.  Inj 
41   Oh.   St.   560   (  lss.5). 

Duty   to   pay  fare. 

The   fact    that    a    ticket   has  been 
by  a  passenger,  which  was  afterward  wrong- 


264 


Private  Corporations  in  Ohio. 


Rates  of  Freight,  §  3375. 


fully  taken  up  by  a  conductor  of  one  of  the 
defendant's  trains,  will  not  relieve  the  pas- 
senger from  the  duty  of  providing  himself 
with  a  ticket  or  paying  fare  on  another  train 
of  the  defendant  in  which  he  may  be  a  pas- 
senger. In  such  case  the  right  of  action  of 
the  passenger  would  be  for  the  wrongful  tak- 
ing up  of  the  ticket,  and  not  for  having  been 
removed  from  a  train  by  another  conductor 
for  refusing  to  pay  fare. —  Shelton  v.  Lake 
Shore,  etc..  Ry.  Co.*,  29  Oh.  St.  214   (1876). 

Tickets   limited   in  time. 

Where  a  railroad  company  sold  a  ticket, 
which  entitled  the  purchaser  to  ride  upon  its 
cars  a  certain  number  of  times  within  a  given 
period,  for  a  price  below  the  usual  rate  of 
fare,  which  ticket  specified  upon  its  face  that 
it  was  only  good  during  such  period,  the  pur- 
chaser, having  failed  to  ride  the  specified 
number  of  times  within  the  period  named,  is 
not  entitled  to  ride  upon  such  ticket  after  the 
expiration  of  the  period. —  Powell  v.  Pitts- 
burg, etc.,  R.  R.  Co.,  25  Oh.  St.  70  (1874); 
-Pennsylvania  Co.  v.  Hine,  41  Oh.  St.  270 
(18S4J. 

Failure  to  provide  seat. 

A   passenger  failing  to   get  a  seat  may   re- 
fuse to  ride,  and  bring  suit,  but  if  he  rides  he 


must  give  up  his  ticket  or  par. —  Close  v. 
Cooper,  34  Oh.  St.  98  (1877).  See  Railwav 
Co.  v.  McLean.  1  O.  C.  C.  112  (1885);  s.  c, 
1   C.  D.  67;  s.  c,  19  W.  L.  B.  217. 

Passage   on   freight   trains. 

A  railroad  company  has  the  right  to  pre- 
scribe reasonable  conditions  for  the  admit- 
tance of  way  passengers  upon  its  freight 
trains;  and  payment  of  fai-e  to  its  office 
agents,  or  procuring  a  ticket  prior  to  taking 
passage  on  such  trains,  is  not  an  unreasonable 
condition. —  Cleveland,  etc.,  R.  R.  Co.  v.  Bart- 
rain.  11  Oh.  St.  457   (1860). 

Mileage  —  waiver  of   conditions. 

A  company  may  waive  any  of  the  conditions 
usually  attached  to  its  mileage,  for  example, 
the  signature  of  the  ticket  holder  to  the  con- 
ditions.—  Kent    v.    Railroad    Co.,   45    Oh.    St. 

2S4  (1SS7). 

Mileage    ticket  —  right   to   take   up. 

A  railroad  company  has  no  right  to  take 
up  a  mileage  ticket  in  the  hands  of  a  person 
other  than  the  purchaser. —  Morton  v.  Lake 
Erie,  etc.,  Ry.  Co.,  35  W.  L.  B.  359   (1896). 


§  3375.  RATES  OF  FREIGHT  PRESCRIBED.—  Such  company  may  receive  for 
transportation  of  property  not  exceeding  five  cents  per  ton  per  mile,  when  the  same 
is  transported  a  distance  of  thirty  miles  or  more,  and  in  case  the  quantity  transported 
is  less  than  one  ton  in  weight,  or  any  quantity  is  transported  a  less  distance  than 
thirty  miles,  such  reasonable  rate  as  may  be  from  time  to  time  fixed  by  the  corpora- 
tion or  prescribed  by  law;  but  until  a  tariff  of  specific  rates  is  established  by  law  for 
the  transportation  of  property  of  such  bulk  that  a  quantity  equal  to  the  tonnage 
capacity  of  the  car  can  not  be  carried  in  it,  the  corporation  may  contract  for  space  in 
the  car  sufficient  to  secure  the  safe  transportation  of  such  property,  at  a  rate  which 
shall  not  exceed  five  cents  per  ton  per  mile  if  such  car  were  loaded  to  its  tonnage 
capacity;  and  for  the  transportation  of  coal,  pig-iron,  limestone,  iron  ore,  or  undressed 
stone  or  lumber,  not  more  than  five  cents  per  ton  per  mile  shall  be  charged  for  any 
distance  of  ten  miles  or  more,  and  in  case  the  same  be  transported  a  less  distance 
than  ten  miles,  such  reasonable  rates  as  may  from  time  to  time  be  fixed  by  the  cor- 
poration or  prescribed  by  law;  and  the  corporation  may  charge  on  such  freight  a. 
reasonable  rate  for  loading  and  unloading,  when  the  same  is  in  fact  done  by  the 
corporation.     (April  6,   1876,   73  v.   102,  §   13.) 


"What  companies  not  bound  by  this  act. 

The  provision  in  the  twelfth  section  of  the 
act  of  Feb.  11.  1S48,  that  no  reduction  shall  be 
made  in  the  rates  of  fare  and  charges  for 
fit  ight  allowed  to  companies  organized  under 
said  act.  unless  where  their  net  profits  for  the 
previous  ten  years  amount  to  ten  per  cent,  on 
their  capital,  is  in  the  nature  of  a  contract, 
and  binding  on  tli"  state,  and  companies  which 
have  not  lost  their  rights  under  said  act  and 
have  not  realized  ten  per  cent,  profit,  are  not 
bound  b;%-  later  acts  reducing  freight  rates. — 
Iron  R.  R.  Co.  v.  Lawrence  Furnace  Co.,  29 
Oh.  st.  208  (1876):  Railway  Co.  v.  Furnace 
Co.,  49  Oh.  St.  102   (1S92). 


Rights  under  special  charters. 

See  Campbell  v.  Marietta,  etc.,  R.  R.  Co.. 
23  Oh.  St.  168  (1872). 

Charges  for  less  than  thirty  miles. 

Where  a  company  is  authorized  to  charge 
for  the  transportation  of  goods  for  less  than 
thirty  miles  such  reasonable  rates  as  it  may 
fix  from  time  to  time,  it  is  unreasonable,  as  a 
matter  of  law.  to  tix  a  greater  sum  for  a  dis- 
tance less  than  thirty  miles  than  the  maxi- 
mum for  full  thirty  miles.— Peters  v.  Railroad 
Co.,  42  Oh.  St.  275  (IssUi  ;  Campbell  v.  Mari- 
etta, etc.,  R.  R.  Co.,  23  Oh.  St.  16S  (1872). 


Railroad  Corpor  \i  eons. 


265 


Freight  and  Freight  Trains,  Regulations  as   I  175a  3376. 


Same  subject. 
Whether  a  freighl   rate  fixed  by  a  company 

for  distances  less  than  thirty  miles  is  reason 
able  or  not  is  a  question  of  fact  for  the  jury, 
to  be  determined  under  such  instructioi 
the  court  as  the  circumstances  of  the  pai 
ticular  case  may  require. —  Peters  \.  Railroad 
(  o.,  42  oli.  St.  275  (  1884).  See  Smith  v.  Pitts- 
burg, etc.  Ry.  Co.,  23  (>li.  St.  10  (1872). 

Recovery  of  overcharges. 

A  shipper  has  the  right  to  have  his  goods 
transported  at  legal  rates  over  the  usual  line 
of  a  common  carrier  of  such  goods;  and  if.  to 
procure  the  services  of  such  carrier,  the  ship- 
per  is  compelled  to  pay  illegal  rates,  the  paj 
ment  is  not  such  a  voluntary  payment  as  will 


preclude    recovi  i  i  the    illeg 

nor  will  it  preclude  such  1 1 
by   arrangement    "i    partii 

•  nil  of  each   mom  h.      Petei  -   v.   Ra 

VI  oh.  St.  ^7.".  |  I 

Contracts  for  freight. 

The   board   of  directors  of  a    rai 
pany  may.  within  i  he  limit  of  tie-  maximum 
rate  ;i nt  horized    by    law,   mal  e   coi 
transportation  for  a  fixed  futuri  Such 

a  contract,  if  otherwise  valid,  i-  not  ultra 
vires  and  void,  for  the  reason  thai  \\  binds 
the  company  for  a  fixed  time. —  Railroad  <  ••. 
v.  Furnace  I  o.,  '■•'>  Oh.  St.  321  Mssj,  .  \\, 
Furnace  Co.  v.  Cleveland,  etc.,  I:.  R  <  "..  -- 
oh.  St.  451   (1872). 


§  3375a.  RIDING  ON  FREIGHT  TRAINS.—  Physicians  in  the  discharge  of 
their  professional  duties  and  sheriffs,  and  deputy  sheriffs,  in  the  performance  of 
their  official  duties,  and  officers  and  guards  of  the  Ohio  penitentiary  and  the  Ohio 
state  reformatory,  in  pursuit  of  escaped  prisoners  or  returning  them  to  their  respect- 
ive institutions,  shall  be  permited  to  ride  at  their  own  risk,  and  take  a  prisoner  or 
prisoners  upon  freight  trains,  between  stations  where  such  trains  stop,  paying  there- 
for the  regular  passenger  fare.  (April  15,  1902,  95  v.  153;  April  13,  1892,  89  v. 
275;  April  23,  1891,  88  v.  381.) 


Between    what    points    can    passage    be 
taken. 

To  give  a  sheriff  the  right  to  ride  on  freight 
trains  in  the  performance  of  his  official  du- 
ties, "  between  stations  where  such  trains 
stop."  it  is  not  necessary  that  such  trains 
should  regularly  stop  at  such  station,  or  he 
scheduled  to  stop  there ;  it  is  sufficient,  if 
they  are  in  fact  stopping  there  at  the  time 
the  sheriff  gets  aboard.  It  is  not  necessary  to 
allege  that  the  train  stopped  regularly  at  the 


point  the  sheriff  came  aboard. —  Allen  v.  I  ake 
Shore,  etc..  Ry.  <  !o.,  57  oh.  St.  ;;i   |  1897 

When   sheriff  may  ride. 

The  right  of  a  sheriff  to  ride  upon  a  fin 
train    i-    no!    confined    to    cases    in    win 
prisoner   is    taken    upon    such    train:    hut    the 
right  exists  whenever  the  sheriff  i-  in  the  per- 
formance of  any  official  duty,  ami  complies  in 
other    respects    with    the    3ta1 
Lake  Shore,  etc.,  Ry.  Co.,  57  Oh.  St.  79    1897   . 


§  3376.  PENALTIES  FOR  VIOLATION  OF  TWO  PRECEDING  SECTIONS.  OR 
OF  SECTIONS  3340  AND  3341. —  That  any  such  company  which  violates  or  permits 
to  be  violated  any  of  the  provisions  of  the  two  preceding  sections,  or  of  sections  3340 
and  3341,  or  which  demands  or  receives  a  greater  sum  of  money  for  the  transpor- 
tation of  passengers  or  property,  or  for  the  service  provided  for  in  either  of  said  sec- 
tions, 3340  and  3341,  than  the  sum  allowed  by  law,  shall  pay  to  the  party  aggrieved 
for  every  such  overcharge,  a  sum  equal  to  double  the  amount  of  the  overcharge;  and 
any  officer,  employe,  or  agent  of  any  such  company  who  violates,  or  permits  to  be 
violated,  any  of  such  provisions,  or  demands  or  receives  such  sum  of  money,  shall 
be  subject  to  the  like  penalty  to  the  party  aggrieved;  but  in  no  case  shall  the  amount 
to  be  paid  be  less  than  one  hundred  and  fifty  dollars  to  any  bona  fide  claimant  using 
the  road  of  such  company,  or  demanding  or  receiving  any  of  the  service  provided 
for  in  said  sections  3340  and  3341  in  due  course  of  business.  Provided  that  a  sep- 
arate action  shall  be  brought  for  each  overcharge,  unless  the  party  aggrieved  give 
notice  in  writing  at  the  time  of  such  overcharge,  except  the  first  one.  to  the  officer, 
agent  or  employe  of  such  railway  making  or  receiving  such  overcharge,  of  his  inten- 
tion to  bring  such  action;  and  no  judgment  shall  be  rendered  in  any  action  for  the 
penalties  herein  provided,  for  more  than  one  overcharge,  unless  such  written  notice 
shall  have  been  given  by  the  party  aggrieved.  (April  6,  1876,  73  v.  102.  i  13; 
March  17,  1892,  89  v.  117;  April  14,  1900,  94  v.  220.) 


266 


Private  Corporations  in  Ohio. 


freight,  etc.— Conditional  Sales  of  Equipment,  etc.,  §§  3377-3378a. 


Constitutionality. 

Tins  act  is  not  unconstitutional. —  Cincin- 
nati, etc.,  R.  R.  Co.  v.  Cook,  37  Oh.  St.  265 
(1881). 

Pleading. 

Under  an  old  act  (71  v.  146)  it  was  not 
necessary  to  allege  that  the  purchaser  of  the 
ticket  was.  in  fact,  transported  on  the  ticket 
for  which  excessive  fare  was  exacted  nor  that 
the  excessive  fare  was  paid  in  the  due  course 
of  business.  As  to  latter  averment,  see  sec- 
tion.—Cincinnati,  etc.,  R.  R.  Co.  v.  Cook,  37 
Oh.  St.  265   (1881). 

Jury  to  assess  damages. 

Where  such  action  stands  for  judgment  on 
the  petition,  it  is  not  error  to  refuse  to  im- 
panel a  jury  to  assess  damages. —  Cincinnati, 
etc..     R.    R.    Co.    v.    Cook.    37    Oh.    St.    265 

(1881). 


Penalties   charged  in   each   case. 

See  Pittsburg,  etc.,  Rv.  Co.  v.  Moore,  33 
Oh.  St.  3S4  (1878). 

Interest. 

Before  judgment,  the  penalty  allowed  by 
the  act  of  March  30,  1875.  for  overcharges 
does  not  bear  interest. —  Railway  Co.  v.  Fur- 
nace Co.,  49  Oh.  St.  102    (1892)! 


Joinder  of  actions. 

See  Cincinnati,  etc., 
Oh.  St.  265   (1881). 


R.  R.  Co.   v.   Cook,  37 


Constitutionality  of  repeal  as  to  pend- 
ing suits. 

See    Cleveland,    etc.,    Rv.    Co.    v.    Wells,    65 
Oh.  St.  313    (1901). 


§  3377.  WHEN  THREE  PRECEDING  SECTIONS  DO  NOT  APPLY.— The  pro- 
visions of  the  three  next  preceding  sections  shall  not  apply  to  any  railroad  in  course 
of  construction  and  the  gross  earnings  of  which  are  less  than  four  thousand  dollars 
per  mile  per  annum,  when  such  railroad  is  not  owned  or  operated  by  companies  oper- 
ating another  railroad;  provided,  that  such  exemption  shall  not  continue  longer 
than  five  years  after  cars  are  run  for  the  transportation  of  freight  and  passengers  on 
said  road.     (April  6,  1876,   73  v.   102,   §   13.) 

§  3378.  RATES  OF  FARE  AND  FREIGHT  ON  BRANCH  ROADS.—  A  company 
may  demand  and  receive  for  the  transportation  of  passengers  on  a  branch  road  a  fare 
not  exceeding  six  cents  per  mile,  and  for  transportation  of  property  such  reasonable 
rate  as  may  be  from  time  to  time  fixed  by  the  company  or  prescribed  by  law;  but  if 
the  length  of  such  branch  exceeds  ten  miles,  the  charge  for  passengers  and  freight 
upon  the  excess  shall  be  the  same  as  provided  by  law  for  main  lines.  (April  29, 
1872,   69  v.  203,   §  4.) 


§  3378a.  CERTAIN  CONTRACTS  FOR  SALE  OF  RAILROAD  PROPERTY 
NOT  VALID  AGAINST  CREDITORS  OR  INNOCENT  PURCHASERS  UNLESS 
RECORDED,  OR  COPY  FILED  WITH  SECRETARY  OF  STATE.— No  contract  of, 
or  for  the  sale  of  railroad  equipment,  rolling  stock,  or  other  personal  property  (to 
he  used  in  or  about  the  operation  of  any  railroad),  by  the  terms  of  which  the  purchase 
money,  in  whole  or  in  part,  is  to  be  paid  in  the  future,  and  wherein  it  is  stipulated  or 
conditioned  that  the  title  to  the  property  so  sold  shall  not  vest  in  the  vendee,  but 
shall  remain  in  the  vendor  until  the  purchase  money  shall  have  been  fully  paid, 
shall  be  valid  against  creditors  or  innocent  purchasers  for  value,  unless  recorded  in 
the  office  of  the  secretary  of  state,  or  a  copy  thereof  filed  in  the  office  of  said  secretary 
of  state,  and  when  said  contract  is  so  recorded,  or  a  copy  thereof  so  filed  as  aforesaid, 
the  title  to  the  property  so  sold,  or  contracted  to  be  sold,  shall  not  vest  in  the  vendee, 
but  shall  remain  in  the  vendor  until  the  purchase  money  shall  have  been  fully  paid, 
and  such  stipulation  or  condition  shall  be  and  remain  valid,  notwithstanding  the 
delivery  of  the  property  to,  and  its  possession  by  such  vendee.  (March  16,  1882, 
79  v.  45.) 


"What   contract   within  this   section. 

Where  the  agreement  states  that  the  prop- 
erty described  is  leased  at  a  fixed  rental,  and 
that  title  In  the  property  shall  not  vest  in  the 
railroad  company,  but  shall  remain  in  said 
trustees    until    the    terms    of    the    agreement 


shall  be  fully  complied  with,  it  comes  within 
this  section  as  a  lease  or  a  contract  of  sale,  or 
a  contract  for  the  sale  of  railroad  equipment. 
—  Union  Trust  Co.  v.  New  York,  etc.,  R.  R. 
Co.,  17  W.  L.  B.  176,  180   (1887). 


Railroad  <  !orp<  »k  .  i  t<  •  267 


Conuiuonal  Sales   of  Equipments,  etc.— Storage  Certiflcatt 


Insolvency  of  railroads,  etc. 

Where  the  court  appoints  receivers  of  the 
property  of  a  railroad  company,  and  directs 
them  to  join  the  company  in  the  execution  of 
a  lease,  consolidating  former  leases  oi  rolling 
stock,  the  terms  of  which  have  no1  \ 
pired,  the  purpose  and  provisions  of  which 
consolidated    lease    are    to    provide    a     lower 

monthly    rental    and    extend    the    period    of   the 


feiture    for    non] 

o1  her    breaches    ol    i  he    i  • 

solidated 

Btock  to  thi 

1  it  led    t.i    a    pi  efei  em  ■  i    in 

dei,i i  dness  of  t he  rai 

the   rentals    which   accrui 

such    consolidated    lease    and    during    thi 

istence    of    i  he    rec<  ivership.      «  entral 


leases  —  but  leaving   the   title   to    the   rolling     Co.   \.   Ohio  Southern    R.    I:.   Co.,    I.    0    I 
stock    in  the  lessor's,   with    conditions   of   for      633   (1898);   -.    ,,  9  C.   D    317. 

§  3378b.  IN  WRITTEN  CONTRACTS  FOR  LEASING  SUCH  PROPERTY.  PAR- 
TIES MAY  PROVIDE  FOR  CONDITIONAL  SALE  OF  SAME;  PARTIES  MAY 
PROVIDE  THAT  THE  PROPERTY  SHALL  REMAIN  IN  THE  LESSOR  OR 
VENDOR  UNTIL  PURCHASE  MONEY  PAID.—  In  any  written  contract  for  the 
renting,  leasing,  or  hiring  of  such  property  (to  be  used  as  aforesaid),  it  shall  be 
lawful  to  stipulate  or  provide  for  a  conditional  sale  of  such  property  at  the  termina- 
tion of  such  renting,  leasing,  or  hiring,  and  to  stipulate  or  provide  that  the  rental 
reserved  shall,  as  paid,  or  when  paid  in  full,  be  applied  to  and  treated  as  purchase 
money;  and  in  such  contract  it  shall  be  lawful  to  stipulate  or  provide  that  the  title 
to  such  property  shall  remain  in  the  lessor  or  vendor  until  the  purchase  money  shall 
have  been  fully  paid,  notwithstanding  delivery  to  and  possession  by  the  other  party; 
subject,  however,  to  the  requirement  as  to  recording  or  filing  contained  in  the  fore- 
going section  of  this  act.     (March  16,  1882,  79  v.  45.) 

§  3378c.  SECRETARY  OF  STATE  TO  FILE  CONTRACTS:  HIS  FEES.  ETC.— 
The  secretary  of  state,  when  so  requested,  and  upon  being  paid  the  proper  fees,  shall 
record  any  such  contract,  and  shall  file  in  his  office  a  copy  of  any  such  contract,  when 
the  same  shall  be  delivered  to  him  for  that  purpose,  and  for  every  such  copy  so  filed 
he  shall  be  entitled  to  receive  one  dollar.     (March  16,  1882,  79  v.  45.) 

§  3378d.  CONSTRUING  APPLICATION  OF  FOREGOING  SECTIONS.— The 
provisions  of  the  foregoing  sections  three  thousand  three  hundred  and  seventy- 
eight  (a),  three  thousand  three  hundred  and  seventy-eight  (b)  and  three  thousand 
three  hundred  and  seventy-eight  (c),  shall  extend  and  apply,  not  only  to  contracts 
made  with  a  railroad  company,  as  vendee  or  lessee,  but  also  to  all  contracts  which 
may  be  made  with  any  corporation,  company,  or  person,  as  vendee  or  lessee,  by  which 
any  such  corporation,  company,  or  person  shall  undertake  to  purchase,  rent,  lease,  cr 
hire  any  railroad  equipment,  cars,  rolling  stock,  or  other  personal  property,  designed 
for  use  on,  or  in  connection  with,  a  railroad  or  railroads,  in  this  or  other  states. 
(April  12,  1889,  86  v.  255.) 

§  3378-1.  AUTHORIZING  RAILWAY  COMPANIES  TO  ISSUE  STORAGE  OR 
WAREHOUSE  CERTIFICATES.— Any  railway  company,  organized  under  the  laws 
of  this  state,  upon  the  receipt  of  iron  ore  or  grain  or  other  merchandise  from  any 
vessel,  water-craft  or  other  source  for  storage  and  deposit,  duly  consigned  to  said 
company  may,  upon  the  request  or  demand  of  the  owner  or  owners  of  said  ore.  grain 
or  other  merchandise,  and  with  the  written  con-ent  of  the  consignee,  issue  to  the 
owner  or  owners  of  said  ore,  grain  or  other  merchandise,  a  certificate,  receipt  or 
voucher,  which  certificate,  receipt  or  voucher,  shall  name  the  railway  company  by 
whom  said  ore  or  grain  or  other  merchandise  is  held  at  the  time  said  certificate, 
receipt  or  voucher  is  issued,  to  whom  said  ore.  grain  or  other  merchandise  was  con- 
signed, the  quantity  held  by  said  company,  and  so  near  as  may  be  the  quality  or  grade 
thereof,  but  not  incurring  any  liability  for  the  grade  or  quality,  which  certificate, 
receipt  or  voucher,  shall  be  signed  by  the  president  or  vice-president  of  said  com- 
pany, and  countersigned  by  the  general  agent  of  said  company  appointed  for  that 
purpose,  or  such  other  officers  as  may  be  appointed  by  said  railway  company,  and 
shall  be  transferable  and  negotiable  by  indorsement  thereon,  by  the  person  or  per- 


268 


Private  Corporations  in  Ohio. 


Baggage  —  Bills  of  Lading  —  Consolidation,   SS  3378-2-3379. 


sons  to  whose  order  the  same  is  made  payable.  That  on  the  presentation  of  said  cer- 
tificate, receipt  or  voucher,  so  indorsed  to  said  railway  company  at  its  general  offices, 
(by)  the  holder  or  holders  thereof  and  on  demand,  the  said  railway  company  shall 
deliver  to  said  holder  or  holders,  the  iron  ore  or  grain  or  other  merchandise  so 
described  therein,  on  the  payment  by  such  person  or  persons  to  said  railway  company 
(of)   all  proper   charges  thereon.     (February  22,    1889,   86  v.   52.) 

False    warehouse    receipts  —  crime. 

See  §  7086. 

§  3378-2.  BICYCLE  AS  BAGGAGE.—  That  hereafter  for  the  purposes  herein 
specified,  bicycles,  with  or  without  lanterns  or  tool  boxes  attached,  are  declared  to  be 
baggage,  and  shall  be  transported  as  baggage  for  passengers,  by  all  railroad  com- 
panies operating  in  this  state,  and  be  subject  to  the  same  charges  and  liabilities 
as  other  baggage,  and  no  passenger  shall  be  required  to  crate,  cover,  or  otherwise  pro- 
tect any  such  bicycle;  provided,  however,  that  a  railroad  corporation  shall  not  be 
required  to  transport,  under  the  provisions  of  this  act,  more  than  one  bicycle  for  a 
single  person.     (March  3,  1898,  93  v.  24;  April  27,  1896,  92  v.  372.) 

§§  3378-3.  RAILROAD  COMPANIES  REQUIRED  TO  FURNISH  BILLS  OF  LAD- 
ING- EFFECT  OF  SUCH  RECEIPT. —  All  railroad  companies  operating  any  line  of 
railway  in  the  state  of  Ohio,  upon  demand  of  any  person  or  corporation  desiring  to 
ship  goods  or  merchandise  of  any  kind  in  car  lots,  at  any  railway  station  or  shipping 
point  in  the  state  of  Ohio,  shall  count  or  check  the  packages  composing  each  lot 
or  car  load,  and  furnish  to  the  shipper  of  such  goods  a  receipt  or  bill  of  lading,  speci- 
fying the  number  of  packages  shipped  in  each  car;  and  such  receipt  shall  bind  the 
railroad  company  so  executing  the  same  to  deliver  the  same  number  of  packages  so 
specified,  at  the  place  of  destination  named  in  such  bill  of  lading.  (May  8,  1894,  91 
v.  207.) 


Effect    of    bill    of    lading    when    goods 
were   never  received. 

Prior  to  the  enactment  of  this  section  it 
was  held  in  an  action  by  a  shipper  against 
the  owners  of  a  steamboat  engaged  in  the 
business  of  common  carriers,  to  recover  for 
the  nondelivery  of  goods  as  per  bill  of  lading, 
the  defendants  were  liable  only  for  so  much 
of  the  goods  as  was  actually  received  on  the 
boat  or  delivered  to  some  one  authorized  to 
receive  freight  on  her  account. —  Dean  v. 
Kin"  22  Oh.  St.  118  (1871).  See  Little  Miami, 
etc.,  R.  R.  Co.  v.  Dodds,  1  C.  S.  C.  47    (1870). 

Parol  evidence. 

In  such  action,  parol  evidence  is  admissible 
for  the  purpose  of  explaining  or  contradicting 
the  terms  of  the  bill  of  lading,  in  so  far  as  it 
purports  to  be  a  receipt  for  freight  delivered 

§  3378-4.  PENALTY. —  Any  railroad  company,  or  any  agent  or  officer  thereof, 
refusing  to  comply  with  the  provisions  of  this  act  shall  be  liable  to  a  penalty  of  fifty 
dollars,  to  be  recovered  by  civil  action  against  the  railroad  company  by  which  such 
agent  or  officer  is  employed,  or  to  which  company  such  goods  are  offered  for  ship- 
ment.    (May  8,  1894,  91  v.  207.) 

§  3379.  WHEN  COMPANIES  WHOSE  ROADS  ARE  IN  THE  STATE  MAY 
CONSOLIDATE. —  When  the  lines  of  road  of  any  railroad  companies  in  this  state  or 
any  portion  of  such  lines,  have  been  or  are  being  so  constructed  as  to  admit  the  pas- 
sage of  burthen  or  passenger  cars  over  any  two  or  more  of  such  roads  continuously, 


to   the  boat.— Dean  v.  King,   22   Oh.   St.   118 

(1871). 

Scope  of  agency. 

The  mere  employment  of  an  officer  or  agent 
for  such  boat  does  not  clothe  him  with  ap- 
parent authority  to  issue  bills  of  lading  for 
goods  not  on  board,  or  not  delivered  to  one 
authorized  to  receive  freight  on  account  of 
the  boat :  and  in  case  such  officer  or  agent 
does  carelessly  or  fraudulently  issue  a  bill  of 
lading  acknowledging  the  receipt  of  freight, 
the  owners  are  not  estopped  to  deny  the  re- 
ceipt thereof. —  Dean  v.  King.  22  Oh.  St.  118 
(1871).  See  Second  National  Bank  v.  Wal- 
bridge,  19  Oh.  St.  419  (1869);  Wood  v.  Perry, 
Wright,  240   (1S33). 

False  bill  of  lading  —  crime. 

Sec   §  70S5. 


I\.\l  LRO  \ii    (   ORP<  ik.\  ll". 


269 


Consolidation  —  Domestic  and  Foreign  Companies,   |  .". 


without   break   or   interruption,    such    companies   may   CO 
single  company.     (March  30,   1877,  74  v.  71,  §   1.) 


msolidatc   then  uto  a 


Power  of  state  to   impose   conditions. 

A  state  in  granting  a  corporate  privilege  to 
its  own  citizens,  or  whal  i-  equivalent,  in  per 
mitting  a  foreign  corporation  ii>  become  one 
of  the  constituent  elements  of  a  consolidated 
company,  may  impose  such  conditions  as  it 
seems  proper,  and  thai  the  acceptance  of  the 
franchise  in  either  case  implies  a  submission 
to  the  conditions  without  which  the  franchise 
could  not  have  been  obtained.—  Ashley  v. 
Ryan,  L53  U.  S.  436,  143  (1893);  3.  c,  8  0.  F. 
D!  215;   s.  c,  49  Oh.  St.  504,  527. 

Consolidated  companies  subject  to  gen- 
eral laws. 

Consolidated  railroad  companies  organized 
in  pursuance  of  the  consolidation  act  arc  cor 
porations  formed  under  a  general  law.  within 
the  meaning  of  the  constitution,  and  as  such 
subject  to  the  limitations  and  reservations  of 
the  constitution;  and  the  genera]  assembly 
has  power  to  alter  and  regulate  rates  of  fare 
chargeable  bv  such  companies.— Shields  v. 
State.  26  Oh.  St.  86  (1875);  s.  c.,  95  U.  S. 
319;  s.  c,  4  0.  F.  D.  471. 

Powers    of    corporations    pending    con- 
solidation. 

Corporations,  which  are  parties  to  an  agree- 
ment to  consolidate,  continue  in  the  full  en- 
joyment of  their  powers  and  franchises  re- 
spectively, and  may  accept  subscriptions  to 
their  capital  stock  at  any  time  before  con- 
solidation is  consummated  by  filing  the  agree- 
ment of  consolidation  with  the  secretary  of 
state. —  Mansfield,  etc.,  R.  R.  Co.  v.  Brown, 
26  Oh.  St.  223  (1875). 


What  companies  are  connected. 

'I  w  <»    ra  ilroad    companies    ow  ning    lin< 
railroad    connected    onlj    bj    othei 
which   such  companies  led. I  by  lea 
•mi  hoi  ized  to  consolidate  into  on.-  i  ..>  pi 
imder   iin-    section. 
oh.  St.  590   (1881). 

Same  subject. 

(  ompaniee  connected  by  the  line-  of  a  union 
depot    and    terminal   company,   in   which 
has    .mi    interest,    maj    consolidate       But 
Cleveland,    etc..     Ry.    Co.,    22    \V.     1..    B.    II 
i  L889).     See       3300  and  □ 

What  lines  are   competing. 

The  lines  of  two  railroad  companies,  which 
are    in    i heir    genei al    features    par. ill. ; 
competing,  cannol    In-  connected   i"i    I 
riage    of    freighl    and    pa  •  \ er    both 

"continuously"    within    the    meaning   of   this 
sect  ion.  and  hence  cannol   consolidate. 
v.   Vanderbilt,  37   Oh.   St.   590    (1881);    Burke 
v.    Cleveland,    etc.,    Ry.    I  ....    22    \\".    L.    B.    11 
i  1889).     See  §  3300  and  uotes. 

Subscriptions  to   stock. 

Subscriptions    to    capital    Btock    are    i"    be 
construed  with  reference  to  consolidation 
ute-.    in     force,    and     subscribers    arc    hound 
thereby  a-  if  the  statutes  were  a  part  i 
contracts  of  subscription.      Mansfield,  etc.,   R. 
R.  Co.  v.   Brown,  26  Oh.  St.  22; 

Right  of  stockholders  of  constituent 
companies  to  enforce  operation  of 
roads. 

Sec   Port   Clinton,  etc.   R.   R.   Co.   v.   Cleve- 
land, etc..  R.  R.  Co..  13  oh.  St.  544.  560     I 


§  3380.  CONSOLIDATION  OF  DOMESTIC  WITH  FOREIGN  RAILWAY  COR- 
PORATION.—  A  company  organized  in  this  state  for  the  purpose  of  constructing, 
owning  and  operating  a  line  of  railway,  or  whose  line  of  road  is  made  or  is  in  process 
of  construction  to  the  boundary  line  of  this  state,  or  to  any  point  either  in  or  out  of 
the  state,  may  consolidate  its  capital  stock  with  the  capital  stock  of  any  company  in 
an  adjoining  state,  organized  for  a  like  purpose,  and  whose  line  of  road  has  been 
projected,  constructed  or  is  in  process  of  construction  to  the  same  point,  where  the 
several  roads  so  united  and  constructed  will  form  a  continuous  line  for  the  passage 
of  cars,  and  roads  running  or  to  be  constructed  to  the  bank  of  a  river  which  is  not 
bridged,  or  to  the  tracks  and  property  of  a  union  depot  company,  the  use  of  which 
is  enjoyed  by  either  of  the  companies  so  proposed  to  be  consolidated,  shall  be  held 
to  be  continuous  under  this  section.  (April  18,  1890,  87  v.  219;  April  22.  1885. 
82  v.   150;  March  30,  1877,  74  v.  71,  §  1.) 


Status    of    company   formed    under    this 
section. 

The  result  is  that  by  consolidation,  whether 
between  Ohio  companies  or  between  an  Ohio 
company  and  companies  of  another  state,  a 
new  company  is  formed  by  the  extinguishment 
of  the  old  ones. 

Many  difficulties  have  been  suggested,  as 
arising  if   a   company  formed  by   the   consoli- 


dation  of  an   <>iii.i  company  with  a   company 

of  another  -talc  should   be  held   t..  '..    a  new 

corporation.     We    would    have   it    i- 

the   anomaly    of  a    corporation   with   a   capital 

stock,   without   the   individual  liability 

stockholders.      The     fallacy     consists     in     the 

assumption,   for   such   would  not    l»-  th< 

There   ha-  '.ecu  some  diversity  of  opini 

to  the   status  of  a  corporation  formed  by  the 


270 


Private  Corporations  in  Ohio. 


Consolidation   of  Consolidated    Companies,    §    3380a. 


consolidation  of  companies  under  the  laws  of 
different  states.  But  it  seems  pretty  well 
settled,  upon  principle  at  least,  that  where 
formed  under  co-operative  legislation  of  the 
different  states,  it  becomes  a  corporation  in 
each  state  where  its  road  is  located.  _  It  is  a 
legal  entity  residing  and  doing  business  in 
different  states,  with  a  status  in  each,  derived 
from  and  determined  by  the  laws  of  that  state. 
If  by  the  laws  of  one  of  these  states  an  indi- 
vidual liability  attaches  to  the  holder  of  stock 
in  an  incorporated  company,  the  same  liability 
will  attach  to  its  stockholders.  The  liability 
will  in  this  regard  depend  upon  the  laws  of 
the    state   where   it    is   used. 

The  stockholders  of  the  company  in  the 
other  states  must  be  presumed  to  know  what 
the  Ohio  law  is  in  this  regard:  and  by  agree- 
ing to  consolidate  with  an  Ohio  company  must 
be  presumed  to  assent  to  the  individual  liabil- 
ity attached  by  Ohio  law  to  the  ownership  of 
stock  in  an  Ohio  company. —  Ashley  v.  Ryan, 
49  Oh.  St.  504.  529  (1892).  See  Ohio,  etc., 
R.  R.  Co.  v.  Wheeler,  1  Black  (U.  S.)  2S6 
(1861). 

Adjoining  state  —  meaning. 

This  act  may  as  properly  be  construed  to 
mean  the  state  adjoining  the  state  in  which 
the  first  company  has  its  line  of  road,  as  the 
state  adjoining  the  state  in  which  the  first 
company  is  incorporated,  so  as  to  enable,  for 
example,  an  Ohio  company  to  consolidate  with 
Indiana  and  Illinois  companies. —  Adelbert 
Colleoe  v.  Toledo,  etc..  Ry.  Co..  3  X.  P.  15 
(1894")  •  s.  c.  5  Dec.  14.  See  Union  Trust  Co. 
v.  New  York.  etc..  R.  R.  Co..  17  W.  L.  B.  176, 
177  (1887);  Continental  Trust  Co.  v.  Toledo, 
etc..  R.  R.  Co..  82  Fed.  642  (1897);  s.  c„  9 
0  F  D  321;  Toledo,  etc.,  R.  R.  Co.  v.  Con- 
tinental Trust  Co.,  95  Fed.  497   (1899). 

Removal  of   causes. 

Notwithstanding  the  consolidation  of  two 
railroad  corporations  of  different  states,  each 
retains  its  identity  as  a  corporation  of  the 
state  in  which  it  was  originally  created;  and 
in  a  suit  against  the  consolidated  corporation 
brought  in  one  of  such  states,  it  cannot  ob- 
tain a  removal  to  the  federal  courts  on  the 
ground  that  it  is  a  citizen  of  the  other  state, 
although  the  consolidation  was  had  under  the 
laws   of  the  latter.— Paul  v.   Baltimore,   etc., 


R.  R.  Co..  44  Fed.   513    (1890):   Ohio.  etc..  R. 
R.  Co.  v.  Wheeler,  1  Black  (U.  S.)  286  (1861). 

Roads  connected  by  union  companies. 

Where  two  railway  companies  owning  lines 
of  railroad,  seeking  consolidation,  are  con- 
nected by  the  tracks  of  a  •'union"'  company 
organized  by  several  railway  companies  to 
secure  union  depot  and  terminal  facilities, 
and  where  by  law  the  interest  of  each  com- 
pany in  the  union  company,  in  its  capital 
stock,  and  in  its  property  and  effects  of  every 
kind,  are  deemed  an  appurtenance  to  the 
railroad  of  such  proprietary  company,  and 
are  not  alienable  except  with  and  as  part  of 
the  railroad  of  such  proprietary  company 
it  will  be  held  that  the  companies  do  unite 
and  form  a  continuous  line  within  the  mean- 
ing of  this  section. —  Burke  v.  Cleveland,  etc., 
Ry.  Co..  22  W.  L.  B.  11   (1889). 

De  facto  consolidation. 

Where  two  roads  not  coming  under  this  sec- 
tion attempt  and  apparently  complete  con- 
solidation by  colorable  proceedings  in  a  formal 
way  to  the  approval  of  the  proper  state  offi- 
cers, the  certificate  of  incorporation,  duly 
certified,  being  admitted  to  record  in  the  office 
of  the  secretary  of  state,  and  its  rights  as  a 
corporation  having  never  been  challenged  by 
the  state,  it  will  be  entitled  to  be  considered 
at  least  a  corporation  de  facto  with  power  to 
mortgage  its  property,  after  it  has  acquired 
and  disposed  of  valuable  property  and  in- 
curred numerous  obligations. —  Union  Trust 
Co.  v.  New  York.  ete.^R.  R.  Co..  17  W.  L.  B. 
176  (1887).  See  Toledo,  etc.,  R,  R.  Co.  v. 
Continental   Trust  Co.,  95  Fed.  497    (1899). 

Estoppel. 

A  railroad  company  having  possession  of 
and  operating  property  obtained  through  con- 
solidation and  foreclosures  in  which  the  con- 
solidation was  recognized  as  valid,  is  estopped 
to  question  the  validity  of  the  consolidation. — 
Adelbert  College  v.  Toledo,  etc..  Ry.  Co.,  3  N". 
P.  15  (1894);  s.  c.  5  Dec.  14;  Farmers'  Loan 
Co.  v.  Toledo,  etc..  Rv.  Co.,  67  Fed.  50  (1895)  ; 
s.  c,  8  O.  F.  D.  435,  9  O.  F.  D.  230. 

Under  old  acts  road  was  required  to  be 
in  process  of  construction. 

See  Mansfield,  etc.,  R.  R.  Co.  v.  Stout,  26 
Oh.  St.  241  (1S75);  Union  Trust  Co.  v.  New 
York,  etc.,  R.  R.  Co.,  17  W.  L.  B.  176  (1887). 


§  3380a.  CONSOLIDATED  COMPANIES  MAY  CONSOLIDATE.— Any  railroad 
company  formed  by  the  consolidation  of  a  company  or  companies  of  this  state  with 
a  company  or  companies  of  another  state  or  states,  may  make  a  further  consolidation 
with  a  company  or  companies  of  another  state  or  states  owning  a  continuous  and 
connected,  but  not  parallel  or  competing  lines.  The  constituent  companies  shall 
have  power  to  fix  by  the  agreement  for  such  consolidation  the  terms  and  conditions 
upon  which  the  same  shall  be  made,  which  terms  and  conditions  may  include  the 
payment  or  retirement  of  the  preferred  stock  of  either  or  any  of  the  constituent  com- 
panies, if  they  have  such;  and  in  case  the  new  company  shall  issue  preferred  stock, 
the  par  value  of  the  shares  thereof  may  be  fixed  by  the  agreement  of  consolidation, 


Railroad  Corpi  irai  [i 


271 


Consolidation  —  Proceedings  for,  g  3381. 


or  by  the  resolution  for  the  issue  thereof  without  .  m  of 

the  common  stock  of  such  company.     (May  2,  1902,  95  v.  3 


§  3381.  PROCEEDINGS  TO  EFFECT  SUCH  CONSOLIDATION  — The  consoli- 
dations shall  be  made  under  the  conditions  and  rest! 

1.  The    directors   of   the    several   companies    may    enter    Into    a   Joint   agree, 
under  the   corporate  seal  of  each  company,    for    the  consolidation  of  the  con 
and  prescribing  the  terms  and  conditions  thereof,  the  mode  of  carrying  I 
effect,  the  name  of  the  new  company,  the  number  of  directors  and  other  officer 

and  their  places  of  residence,   the  amount  of  the  capital  stock  of  the  new  company 
agreed  upon,   the  number  of  shares   of  capital  stock,  the  amount  of  each  share  and 
the   manner   of   converting   the    capital    stock   of   each    of   the   constituent   c 
into  that  of  the  new  company,  with  such  other  details  as  they  may  deem  necessa: 
perfect  the  new  organization  and  the  consolidation  of  the  companies. 

2.  The  agreement  shall  be  submitted  to  the  stockholders  of  each  of  the  companies, 
at  a  meeting  thereof  called  separately  for  the  purpose  of  taking  the  same  into  con- 
sideration; due  notice  of  the  time  and  place  of  holding  such  meeting,  and  the  object 
thereof,  shall  be  given  by  written  or  printed  notices  addressed  to  each  of  the  persons 
in  whose  names  the  capital  stock  of  the  companies  stands  on  the  books  thereof,  and 
also  by  a  like  notice  published  in  some  newspaper  in  the  city  or  town  where  such  com- 
pany has  its  principal  office  or  place  of  business;  provided,  that  in  case  all  the  stock- 
holders are  present  at  such  meeting,  in  person  or  by  proxy,  such  notice  may  be 
waived  in  writing.  At  the  meeting  of  stockholders  the  agreement  of  the  directors 
shall  be  considered,  and  a  vote  by  ballot  taken  for  the  adoption  or  rejection  of  thf» 
same,  each  share  of  stock  on  which  has  been  paid  all  the  installments  called  for  by 
the  board  of  directors,  entitling  the  holder  thereof  to  one  vote;  the  ballots  shall  be 
cast  in  person  or  by  proxy,  and  if  two-thirds  of  all  the  votes  cast  at  the  meeting  be 
for  the  adoption  of  the  agreement,  that  fact  shall  be  certified  thereon  by  the  secre- 
tary of  each  of  the  companies,  and  the  agreement  so  adopted,  or  a  certified  copy  thereof 
shall  be  filed  in  the  office  of  the  secretary  of  state.  And  all  consolidation  agreements 
heretofore  entered  into  and  ratified  by  such  companies  substantially  in  manner  as  in 
this  section  prescribed,  shall  be  as"  valid  as  if  entered  into  and  ratified  by  virtue  of 
this  section.     (April  22,  1885,  82  v.  150;  R.  S.  1880;  March  30.  1877,  74  v.  71.  j  2.) 


Preliminary    agreement    for    consolida- 
tion of  corporations. 

A  preliminary  agreement  appointing  parties 

named  as  agents  and  proxies  to  cany  out  an 
agreement  and  perfect  the  consolidation  of 
corporations,  authorizing  them  to  attend  anj 
and  all  meetings  of  the  corporation,  called 
for  the  purpose  of  carrying  out  the  terms 
of  the  agreement,  and  to  vote  the  stock  in 
such  manner  as  they  shall  find  necessary  t<> 
carry  out  the  purposes  of  the  agreement,  ami 
agreeing  to  deliver  to  such  parties  stock 
of  the  consolidating  companies,  with  the  fur- 
ther provision  that  the  shave-  of  the  consoli- 
dated company  shall  he  delivered  to  the  con- 
stituent companies,  apparently  contemplating 
delivery  to  such  companies  in  their  corporate 
capacity,  hecomes  merged  in  the  contract 
of  consolidation,  and  does  not  fix  the 
rights  of  the  parties:  it  has  no  legal  effecl 
in  and  of  itself,  but  is  purely  preliminary. 
—  Robison  v.  Cleveland  City  Ry.  Co..  13 
Dec.  1. 

Number  and  residence  of  directors. 

The  agreement  of  the  directors  of  the  con- 
solidating companies  is  fatally  defective  if  it 


does  not   state   the  number  and   residem 
the  new  directors.    This  provision  of  the  -'    '• 
ute   is   mandatory. —  State    v.    Vanderbilt,    37 
oh.  St.  590,  654  '   L882).     See  Trester  v.   M". 
Pac.   K.  R.  Co.,  :;::  Neb.  171    (18 

Constituent   companies  after  consolida- 
tion. 

Upon   the    in-tant    of   the    consolidation   of 
the  corporations  the  consolidating  com] 
cease    to    exist    except    a-    to    creditors,    and 
they  survive   then,  under  -  : 

for    the    mere    purpose    of    enabling   creditors 
to  collect  their  debts  against  them. 
v.   Cleveland    City    Ry.   Co.,    13   Dec.    1. 

Powers    of   constituent    companies. 

Under  this  section  the  pari i<  -  I 
dation   agreement    continue   in   the  full 
cise  of  their  franchises  and  power-,  and  may 

:    subscriptions  to   their  capit 
any  time  before  consolidation  i-  consun 
by  filing  the  agreement  i 
the  secretary  of  state. —  Mansfield,  etc..  R.  R. 
Co.  v.  Brown.  26  Oh.  St     __ 


272 


Private  Corporations  in  Ohio. 


Consolidation  —  Proceedings  for,  §  3381. 


Amount  and   nature    of  capital   stock. 

The  companies  may  agree  upon  the  number 
and  amount  of  shares  of  the  proposed  con- 
solidation company,  may  classify  such  new 
stock  into  "  common  "  and  "  preferred,"  and 
may  issue  a  greater  or  less  number  of  shares 
than  that  of  the  aggregate  of  the  constituent 
companies  to  secure  a  just  and  equitable  divi- 
sion of  property  between  the  shareholders  of 
the  companies. —  Burke  v.  Cleveland,  etc.,  By. 
Co..  22  W.  L.  B.  11    (1889). 

Contract     giving,  veto     power     to     pre- 
ferred  stockholders. 

Where  a  contract  of  consolidation  provided: 
"  The  consolidated  company  shall  not  issue 
any  evidences  of  funded  debt,  or  execute  any 
lease  of  railway  property  which  may  entail 
fixed  charges,  except  by  the  consent  of  a  ma- 
jority in  interest  of  the  holders  of  the  said 
preferred  stock,  to  be  expressed  in  writing 
under  their  signatures  respectively."  etc.,  it 
was  held  that  it  did  not  conflict  with  §  3248 
or  §  3257. —  Burke  v.  Cleveland,  etc.,  By.  Co., 
22  W.  L.  B.  11,  15   (1889). 

Delivery   of   new   stock    to    old    company 
or  its  officers,  etc. 

A  delivery  of  stock  of  a  consolidated  com- 
pany to  constituent  companies,  as  such,  could 
not  be  made,  inasmuch  as,  after  the  consoli- 
dation, such  companies  do  not  remain  in 
existence,  for  any  such  purpose;  such  com- 
panies could  not  surrender  the  old  stock 
without  consent  of  the  holders  nor  are  they 
authorized  to  receive  the  new. —  Bobison  v. 
Cleveland  City  By.  Co.,  13  Dec.  1. 

Nor  could  the  stock  of  a  consolidated  com- 
pany be  delivered  to  the  officers  of  the  con- 
stituent companies,  as  such,  for  the  reason 
that  when  the  consolidation  goes  into'  effect, 
such  officers  cease  to  have  any  official  rela- 
tion to  the  old  company,  except  so  far  as  is 
necessary  for  the  protection  of  creditors. — 
Bobison  v.  Cleveland  City  By.  Co.,  13  Dec.  1. 

Blanket  certificates  representing  the  total 
amount  of  stock  belonging  to  holders  of  stock 
in  constituent  companies  after  consolidation, 
executed  by  the  vice-president  and  secretary 
of  the  consolidated  company  upon  represen- 
tation of  the  transfer  agent,  and  by  advice 
of  genei'al  counsel  that  it  would  be  all  right, 
that  the  same  were  to  be  used  simply  for 
bookkeeping  purposes,  and  that  individual 
certificates  subsequently  issued  would  be 
charged  against  them,  cannot  be  regarded  as 
a  delivery  of  the  constituent  companies'  stock. 
—  Bobison  v.  Cleveland  City  By.  Co.,  13 
Dec.  1. 

Valid     issue    of    stock    of     consolidated 
company. 

In  order  to  constitute  a  valid  issue  of  cer- 
tificates of  stock  of  a  corporation  formed  by 
the  consolidation  of  other  corporations,  cer- 
tificates of  the  stock  of  the  constituent  com- 
panies should  be  surrendered  and  canceled. — 
Bobison  v.  Cleveland  City  By.  Co.,  13  Dec.  1. 


Trust    relation     as     to     distribution     of 
stock. 

Where  several  companies  are  consolidated 
into  one  company,  the  new  company  sustains 
a  trust  relation  to  the  holders  of  the  stock 
in  the  constituent  companies  with  reference 
to  the  new  stock  and  its  distribution  to 
them.— Fuller  v.  Cleveland,  etc.,  By.  Co.,  8  N 
P.  605  (1901);  Cleveland,  etc..  By.  Co.  v. 
First  Nat.  Bank,  22  0.  C.  C.  165  (1901). 

Issue  of  stock,  statute  of  limitations. 

In  an  action  against  a  consolidated  com- 
pany by  one  entitled  to  a  portion  of  the 
new  stock  the  statute  of  limitations  does  not 
begin  to  run  until  there  is  a  demand  of  the 
stock,  and  refusal  to  deliver. —  Fuller  v. 
Cleveland,  etc.,  By.  Co.,  8  N.  P.  605  (1901). 

■Wrongful    diversion    of    stock    of    con- 
solidated company. 

Where  negligence,  under  ordinary  circum- 
stances, will  not  in  and  of  itself  constitute 
an  estoppel,  but  inasmuch  as  the  law  casts 
upon  a  director  the  duty  of  exercising  or- 
dinary care,  with  reference  to  the  concerns  of 
the  company,  and  failure  to  do  so  makes  the 
director  liable  for  such  wrongs  as  follow  from 
his  negligence,  if  he  is  directly  concerned  with 
the  wrongful  diversion  of  stock,  and  his  neg- 
ligence was  the  proximate  cause  thereof,  it 
would  bar  his  recovery  for  losses  which  he 
might  sustain  thereby. —  Bobison  v.  Cleveland 
City  By.  Co.,  13  Dec.  1. 

Where  it  appears  that  the  transfer  agent 
of  a  corporation  formed  by  the  consolidation 
of  other  corporations  was  permitted  by  the 
registrar  and  executive  officers  of  the  cor- 
poration to  issue  certificates  of  stock  in  the 
consolidated  companies  without  surrender  of 
the  stock  in  the  constituent  companies, 
whereby  all  the  stock  of  the  consolidated 
company  was  issued  and  in  part  wrongfully 
diverted,  leaving  about  $800,000  of  the  stock 
of  a  constituent  company  unpaid  and  uncan- 
celed, the  majority  of  which  was  owned  by 
the  vice-president  (a  director,  but  not  a  sal- 
aried or  active  officer),  the  proximate  cause 
of  the  loss  was  in  permitting  new  stock  to 
be  issued  without  a  surrender  of  the  old, 
and  the  corporation  is  liable  to  the  vice- 
president  stockholder  for  his  losses. —  Bobison 
v.  Cleveland  City  By.  Co.,  13  Dec.   1. 

Where  it  appears  that  the  officer  and  stock- 
holder in  question  had  no  actual  knowledge 
that  the  transfer  agent,  a  man  of  high  busi- 
ness standing,  was  wrongfully  diverting  the 
stock,  and  had  no  reason  to  distrust  him, 
the  mere  fact  that  he  was  guilty  of  negli- 
gence generally,  in  that  he  failed  to  insist 
upon  having  the  contract  of  consolidation, 
which  contemplated  an  exchange  of  stock 
within  a  reasonable  time,  promptly  executed, 
is    not    sufficient    to    defeat    his    recovery,    in 


Railroad  (  i  irpora  noNS. 


273 


Consolidation  —  Effects  of;  Defects  in,  182   1 


view  of  the  commissive  negligence  of  execu- 
tive officers  in  permitting  the  stock  to  !><• 
wrongfully  issued. —  Robison  v.  Cleveland  <  itj 
Ry.  Co.,  13  Dec.   1. 

The  measure  of  damages  in  such  case  is  the 
amount  of  plaintilf's  stock,  less  his  sliare  of 
the  indebtedness  of  the  constituent  company. 
The  fact  that  since  the  consolidation  the  in- 
debtedness has  been  paid,  dues  not  entitle 
plaintiff  to  recover  his  stock  free  from  debts 
where  it  does  appear  that  his  money  con- 
tributed to  the  payment  of  such  debts. 
Robison  v.  Cleveland  City  Ry.  Co.,  13  Dee.   1. 

Duties  and  liabilities  to  pledgee  of 
stock  of  constituent  company. 
The  consolidated  company  has  no  rigid  to 
issue  its  stock  in  lieu  of  stock  of  one  of  the 
constituent  companies  which  was  pledged  to 
secure  a  debt  of  the  owner.  If  such  issue  is 
made,  it  is  liable  to  the  pledgee. —  Cleveland 
City  Ry.  Co.  v.  First  Nat.  Bank,  22  0.  C.  C. 
165   (1901). 

Duty  where  old  stock  is  deposited  with 
trustee   for  transfer. 

See    Fuller    v.    Cleveland,    etc.,    Ry.    Co.,    8 
N.    P.   605    (1901). 


Contract  partly  Illegal. 

Where   one   cla  use   ol    t  hi    i  ont  ract    ol 
Bolidation    is    illegal,    and    can 
from    the    legal    pari 
not  i»'  enjoined,  and  i  he  p 
litigate    the   question    as    to 
cla  use  when  i  i  a    requin  - 

Cleveland,  etc.,   Rj  .Co.,  22   U  .   I.    B     1 1.   Lfl 
(1889). 

Agreement    to    protect    bonds. 

Where    bonds    were    issued    I 
which   afterward    was   consolidated    with    an 
other    under    a    stipulation    thai    said    bonds 
should  be  pi  oteeted  bj   i  he  new  i  on 
holders  of  Buch  bonds  have  a  lien  on  the  prop- 
erty of  t  he  company        5e<    i  Dmpton  \ 
way   <  o.,    15   I  lh.    Bt    592 

Application     to     street     railroad      com- 
panies. 
For  the  application  of  g{   3381    I 

street  railroad  companies,   see   .-   2505b. 

Application  to  other  corporations. 
See  §§   3864  and  3865. 


§  3382.  EFFECT  OF  THE  AGREEMENT  TO  CONSOLIDATE.—  When  the  agree- 
ment is  made  and  perfected,  as  provided  in  the  preceding  section,  and  the  same  or  a 
copy  thereof  filed  with  the  secretary  of  state,  the  several  companies  parties  thereto 
shall  be  deemed  and  taken  to  be  one  company,  possessing  within  this  state  all  the 
rights,  privileges,  and  franchises,  and  subject  to  all  the  restrictions,  disabilities,  and 
duties,  of  a  railroad  company.     (April  10,   1856,  53  v.    143,  §  3.) 


New  company  is  formed. 

By  the  consolidation  of  companies,  whether 
of  Ohio  companies,  or  Ohio  and  foreign  com- 
panies, a  new  corporation  is  formed  which 
succeeds  to  all  the  property  of  the  original 
companies  and  assumes  their  liabilities. 
Ashley  v.  Ryan,  49  Oh.  St.  504,  529  (1892); 
Wabash,  etc.,  Rv.  Co.  v.  Ham,  114  U.  S.  587, 
595  (1884);  Shields  v.  Ohio,  95  U.  S.  319 
(1880);  s.  c,  4  0.  F.  D.  471:  Lee  v.  Sturges, 
46  Oh.  St.  153,  169  (1889);  Robison  v.  Cleve- 
land, etc.,  Rv.  Co.,  5  N.  P.  293,  301  (1898); 
a.   c,   7   Dec.  312. 


When    old    companies    deemed    in    exist- 
ence. 

So  far  as  concerns  unpaid  dissent 
holders,  the  old  companies  may   be  deemed  in 
existence  after  the  filing  of  the  agreement.— 
Railway   Co.  v.   Garrett,   50  Oh.  St.  40:,.  417 
L893). 

Decree  against  company. 

A  decree  against  a  company  funned  by  the 
consolidation    of   companies   of   several    - 
may  be  made  againsl  the  whole  road,  and  not 
me'relv   against    BO  much  as   is   in   I 
Scofield  v.   Railway   Co.,   43  Oh.   St.   571,  621 

1  885  I . 


§    3382-1.     DEFECTS    IN     CONSOLIDATION     AGREEMENTS;     HOW    CURED: 
PROVISO.—  In  all  cases  where  the  agreement  for  the  consolidation  of  railroad  com- 
panies heretofore  filed  in  the  office  of  the  secretary  of  state  is  defective  by  reason  of 
the  omission  of  a  statement  either  of  the  number  of  the  directors  or  other  officers, 
or  their  places  of  residence,  or  the  number  of  shares  of  capital  stock  as  required  in 
such  agreement  by  the  laws  of  this  state,  such  defect  may  be  cured  by  filing 
office  of  the  secretary  of  state  a  certificate  signed  by  the  president  and  the  secretary 
of  the  consolidated  company  named  in  such  agreement  under  its  corporate  seal,  set 
forth  such  omitted  statements,  which  shall  thereupon  be  considered  a  part  of  the  agree- 
ment of  consolidation,  the  same  as  if  originally  incorporated  therein,  and  sai 
ment  and  all  rights,  remedies,  powers,   duties,  and  acts  thereunder  be  construed  ac- 

LAW   GOV.    PRIV.    COR.  — 18. 


274  Private  Corporations  in  Ohio. 


Consolidation  — Deiec.s  in  Agreements,   §§  3382-2,  3382-3. 


cordingly,  and  the  said  agreement  and  certificate,  and  copies  thereof,  duly  certified  by 
the  secretary  of  state,  shall  be  held  and  received  in  all  courts  and  other  places  as  con- 
stituting the  agreement  of  the  consolidation  of  such  companies  to  all  intents  and 
purposes,  as  if  no  such  omission  or  defect  had  ever  existed  in  such  agreement;  pro- 
vided, that  nothing  in  this  act  shall  impair  the  rights  of  any  person  or  corporation 
acquired  prior  to  the  passage  of  this  act.     (April  17,   1882,  79  v.    126). 

§  3382-2.  AUTHORIZING  TEE  CURING  OF  DEFECTS  IN  THE  CONSOLIDA- 
TION OF  CERTAIN  RAILWAY  CJMPANIES;  PROVISO.— In  all  cases  where  the 
agreement  or  certified  copy  thereof  for  the  consolidation  of  railroad  companies,  here- 
tofore filed  in  the  office  of  the  secretary  of  state,  is  defective  by  reason  of  the  omission 
of  a  statement  of  the  place  of  residence  of  the  directors,  and  the  number  and  places 
of  residence  of  the  other  officers,  as  required  in  such  agreement  by  the  laws  of  this 
state,  but  when  in  pursuance  to  such  agreement  an  election  of  directors  has  been  had, 
and  other  officers  have  been  elected  or  appointed,  all  such  defects  in  said  agreement, 
and  any  defect  in  the  certificates  thereon,  may  be  cured  by  filing  in  the  office  of  the 
secretary  of  state  a  copy  of  the  proceedings  of  said  election,  duly  certified  by  the  sec- 
retary of  said  company  to  be  such  copy  under  the  corporate  seal  of  such  company,  and 
a  certificate  signed  by  the  president  and  secretary  of  the  consolidated  company  named 
in  such  agreement  under  its  corporate  seal,  setting  out  the  places  of  residences 
respectively  of  the  directors  first  elected,  and  of  the  officers  first  elected  or  appointed, 
at  the  time  they  were  so  first  elected  or  appointed,  as  well  as  their  residences  respec- 
tively at  the  time  of  the  filing  of  the  certificates  last  above  mentioned,  which  shall 
thereupon  be  considered  a  part  of  the  agreement  of  consolidation,  the  same  as  if 
originally  incorporated  therein;  and  upon  filing  said  certified  copy  of  said  proceedings 
and  certificate,  all  such  defects  existing  prior  to  the  filing  of  said  certified  copy  of 
said  proceedings  and  certificates  shall  be  cured,  and  the  several  acts  of  said  company 
shall  be  held  valid,  and  the  said  agreement  and  all  rights,  remedies,  powers,  duties, 
and  acts  thereunder  be  construed  accordingly,  and  the  said  agreement,  proceedings 
and  certificates  and  copies  thereof,  duly  certified  by  the  secretary  of  state,  shall  be 
held  and  received  in  all  courts  and  other  places  as  constituting  the  agreement  of  con- 
solidation of  such  companies,  to  all  intents  and  purposes  ps  if  no  omission  had  ever 
existed  in  such  agreement  or  the  certificate  thereto.  Provided,  that  nothing  in  this 
act  shall  impair  the  rights  of  any  person,  firm  or  corporation  acquired  prior  to  the 
passage  of  this  act.     (January  20,  1887,  84  v.  3.) 

§  3382-3.  AUTHORIZING  THE  CURING  OF  DEFECTS  IN  CERTAIN  RAIL- 
WAY CONSOLIDATION  AGREEMENTS;  PROVISO.— In  all  cases  where  the  agree- 
ment or  a  certified  copy  thereof  for  the  consolidation  of  railroad  companies  heretofore, 
filed  in  the  office  of  the  secretary  of  state,  states  the  number  of  shares  of  the  capital 
stock  of  the  new  company,  and  the  amount  of  each  share,  but  is  defective  by  reason 
of  the  omission  of  a  statement  of  the  amount  of  the  capital  stock  of  the  new  company 
agreed  upon  as  required  by  the  laws  of  this  state  in  such  agreement,  such  defect  may 
be  cured  by  filing  in  the  office  of  the  secretary  of  state  a  certificate  signed  by  the 
secretary  of  said  consolidated  company,  under  its  corporate  seal,  setting  out  the 
amount  of  the  capital  stock  of  the  new  company  agreed  upon,  which  shall  be  ascer- 
tained by  multiplying  the  number  of  shares  of  capital  stock  named  -u  said  agree- 
ment by  the  amount  of  each  share  named  in  said  agreement  in  dollars,  as  shown  in 
the  original  agreement  or  the  certified  copy  thereof  filed  in  the  office  of  the  secretary 
of  state,  and  which  said  certificate  shall  thereupon  be  considered  a  part  of  the  agree- 
ment of  consolidation  the  same  as  if  originally  incorporated  therein;  and  upon  filing 
said  certificate  such  defect  shall  be  cured  and  such  consolidation  and  the  several  acts 
of  said  company  shall  be  held  valid,  anJ  the  said  agreement  and  all  rights,  remedies, 
powers,  duties,  and  acts  thereunder  be  construed  accordingly;  and  certified  copies  of 


I\.\l  I. ROAD    (  lORPORAl  l«  I  275 


Consolidation  — Directors;  Title  to  Property, 


the  said  certificate  and  the  agreement  of  consolidation,  duly  certified  by  the 
of  state,  shall  be  held  and  received  in  all  courts  and  other  places  a 
agreement  of  consolidation  of  such  companies,  to  all   intents  and  purposes, 
omission  or  defect  had  ever  existed   in  such  agreement.     Provided 
this  act  shall  impair  the  rights  of  any  person,  firm  or  corporation  acquire! 
the  passage  of  this-  act.     (February  18,   1887,  84  v.  29.) 

§  3383.  ELECTION  OF  DIRECTORS.— The  stockholders  at  the  meeting  called 
to  take  into  consideration  the  agreement,  shall,  after  the  adoption  of  the  same,  app 
a  time  and  place  for  the  election  of  the  directors  and  other  officers  of  the  new  comp 
notice  of  which  shall  be  given  by  the  secretary  of  each  of  the  companies  in  some 
newspaper  printed,  or  of  general  circulation  at  the  place  of  the  principal  office  of  each 
company,  at  least  three  weeks  previous  thereto;  provided,  that  if  at  such  meeting  all 
the  stockholdex-s  of  the  constituent  companies  are  present,  either  in  person  or  by 
proxy,  they  may,  in  writing  or  by  resolution,  waive  such  notice,  and  consent  to  hold 
such  meeting  and  election  at  any  time,  which  election  shall  be  conducted  in  such 
manner  as  may  be  prescribed  by  the  stockholders  at  such  meeting.  (April  22,  1885, 
82  v.  150;  53  v.   143,  §  4.) 

Enjoined  election  —  receiver.  "When  election  may   be  held  —  power  of 
At  the  meeting  provided  for  by  this  section         old  companies. 

the   stockholders   have   no   corporate   duty    to  "The  <'li-rii.ni   of  directors  under  this  section 
perform;   therefore,  the  fact  that   -nun-  of  the  '   is  unauthorized  until   the 

stockholders  have  been  enjoined  from  partici-  filed    with   the   secretary    of  Btate.     The 

pating  in  such  a  meeting  does  not  constitute  a  solidating  companies  continue  for  tl 

ground  for  the  appointment  of  a   receiver  of  of  holding  and  controlling  all  rights  and 

either  of  the  consolidating  companies,  for  such  chises  until  the  election  is  had.     The  div< 

persons    could    act    only    in    the    capacity    of  of  tl Id   and   the  investing  of  • ;   •  nev 

stockholders. —  Railway  Co.  v.  Jewett,  37  Oh.  porations    are   simull 

St.  649   (1882),  R.   R.  <  o.  v.   Brown,  26  0      St.  *2 

§  3384.  PROPERTY  OF  THE  OLD  COMPANIES  VESTS  IN  THE  NEW.—  Upon 
the  election  of  the  first  board  of  directors  of  the  company  created  by  the  agreement 
of  consolidation,  all  and  singular  the  rights,  privileges,  and  franchises  of  each  of  the 
companies  to  the  agreement,  and  all  the  property,  real,  personal,  and  mixed,  and  dsbts 
due  on  account  of  subscriptions  of  stock,  or  other  things  in  action,  shall  be  deemed 
to  be  transferred  to  and  vested  in  such  new  company,  without  further  act  or  deed; 
all  property,  rights  of  way,  and  other  interests,  shall  be  as  effectually  the  property 
of  the  new  company  as  they  were  of  the  companies  parties  to  the  agreement;  the  title 
to  real  estate,  either  by  deed,  gift,  grant,  or  by  appropriations  under  the  laws  of  this 
state,  shall  not  be  deemed  to  revert  or  be  impaired  by  reason  yi  the  consolidation; 
but  all  rights  of  creditors,  and  all  liens  upon  the  property  of  either  of  such  companies, 
shall  be  preserved  unimpaired,  and  the  respective  companies  may  be  deemed  to  be  in 
existence  to  preserve  the  same;  and  all  debts,  liabilities,  and  duties  of  either  of  said 
companies,  shall  thenceforth  attach  to  the  new  company,  and  be  enforced  against  it  to 
the  same  extent  as  if  such  debts,  liabilities,  and  duties  had  been  contracted  by  it. 
(April   10,    1856,   53  v.    143,   §   5.) 


Equitable  lien  for  debts  of  old  company. 

On    the    consolidation    of    companies 
this  act  the  new  company  takes  the  property 
in  its  own  right,  subject  only  to  the  pa^ 
of    the    debts    of   the    constituent    companies. 


Notice  of  equitable  lien. 

This  i   is   a   result   of   th 

ceedings   under  which    the   new  compa-  ■ 
quired  its  title  to  the  property,  and  •  f  it  the 
creditors   ,,f  the  new   company  have    in 


™  .l,ur  U;'LS  ?l  l"\'  ":mr:  -"■!■""—  the  same  notiee  thev  hnvp  „f  prior 

This   liability   is   created    by    statute,    and   an  ^  ^   ^ 

equitable    lien    results     as    a     consequence. —  (  ^      (.    (  , 
Compton    v.    Railway    Co.,    4.".    Oh.    St.    592 

(1888).     See  Continental  Trust  Co.  v.  Toledo,  Agreement   to  protect  debt's, 

etc.    R.  R.  Co.    86  Fed.  929    (1898).  'Where   the    consolidation    agreement    under- 
take-                         ertain   unsecured   debts 


276 


Private  Corporations  in  Ohio. 


Consolidation  —  Stock,  Bonds,  etc.,  SS  3384a,  3384b. 


one  of  the  constituent  companies  an  equitable 
lien  is  established  on  the  property  of  the  old 
company  to  the  extent  of  the  debt. —  Compton 
v.  Railway  Co..  45  Oh.  St.  592  (1888).  See 
Wabash,  etc.,  R.  R.  Co.  v.  Ham,  114  U.  S.  595 
(1884)  j  Compton  v.  Jesup,  68  Fed.  263 
(1895);  Tysen  v.  Wabash  Ry.  Co.,  15  Fed. 
763    (1883). 

Claim  of  dissenting  stockholder. 

A  dissenting  stockholder  may  prosecute  his 
claim  against  the  new  company  which  takes 
the  property  of  the  old  company  charged  with 
the  payment  of  its  debts. —  Railway  Co.  v. 
Garrett,  50  Oh.  St.  405,  417   (1893).  * 

Property  of   old   companies   not   held   in 
trust. 

A  corporation  formed  by  the  consolidation 
of  two  or  more  companies  holds  its  property 
acquired  by  such  consolidation  in  its  own 
right,  and  not  in  trust  for  the  constituent 
companies,  and  such  property  cannot  be 
reached  bv  creditor's  bill. —  Greene  v.  Wood- 
land, etc.,  R.  R.  Co.,  62  Oh.  St.  67    (1900). 

Liability  of  new   company  for  torts. 

The  new  consolidated  company  is  liable  for 
the  torts  of  the  original  company. —  Cincin- 
nati, etc.,  Ry.  Co.  v.  Fullbright,  7   W.   L.   B. 


18/    (1882).     See  Indianapolis,  etc.,  R.  R.  Co. 
v.  Jones,  29  Ind.  465    (1868). 

Subscriptions  to   capital  stock. 

See  Mansfield,  etc..  R.  R.  Co.  v.  Brown,  26 
Oh.  St.  223  (1875);  Mansfield,  etc.,  R.  R.  Co. 
v.  Stout,  26  Oh.  St.  241    (1875). 

Execution  against  property  for  debt  of 
old  company. 

See  State  of  Ohio  v.  Brimson,  46  W.  L.  B. 
275   (1901). 

Statute   of  limitations. 

An  action  to  enforce  a  lien  upon  the  prop- 
erty of  a  consolidated  railroad  company,  based 
upon  an  amount  alleged  to  be  due  on  equip- 
ment bonds  issued  by  a  constituent  company, 
is  an  action  not  upon  a  liability  created  by 
statute,  nor  upon  a  written  agreement,  but  is 
solely  for  equitable  relief,  and  the  period  of 
limitation  of  such  actions  is  ten  years  from 
the  date  when  the  cause  of  action  accrues,  and 
the  cause  of  action  accrues  as  to  each  install- 
ment when  the  same  matures;  the  right  to 
enforce  the  lien  as  to  subsequently  accruing 
installments  of  interest,  or  as  to  the  principal 
of  the  bonds,  cannot  be  said  to  have  accrued 
prior  to  the  time  when  such  installments  and 
principal  respectively  matured. —  Adelbert 
College  v.  Toledo,  etc..  Ry.  Co.,  3  N.  P.  15 
(1894);    s.    c,  5   Dec.    14. 


§  3384a.  CONSOLIDATED  COMPANIES  MAY  DISPOSE  OF  STOCK  AND 
BONDS  ACQUIRED  BY  CONSOLIDATION. —  That  any  consolidated  railroad  com- 
pany formed  by  the  consolidation  of  a  railroad  company  or  companies  created  by  or 
existing  under  the  laws  of  this  state  and  any  other  state  or  states,  with  a  railroad 
company  or  companies  of  this  state  or  of  any  other  state,  may  take,  hold,  pledge  or 
otherwise  dispose  of  under  such  terms  and  agreements  as  the  board  of  directors  of 
such  consolidated  railroad  company  may  prescribe,  the  stock  and  bonds  of  any  other 
company  acquired  upon  consolidation  or  received  by  virtue  of  any  purchase  or  lease 
or  operating  contract  heretofore  or  hereafter  made  or  executed,  and  may  maintain 
and  operate  any  railroad  purchased  under  authority  of  law,  and  may  lease  or  contract 
to  operate  any  part  or  all  of  a  railroad  constructed  or  in  the  course  of  construction  by 
another  company  of  this  state  or  of  any  other  state,  if  the  line  of  road  covered  by  such 
lease  or  operating  contract  is  connected  with  the  line  of  road  of  such  consolidated 
railroad  company,  upon  such  terms  as  may  be  agreed  upon  between  the  companies. 
(April  11,  1890,  87  v.  183.) 


§  3384b.  CONSOLIDATED  COMPANY  MAY  ISSUE  ITS  OWN  STOCK  IN  LIEU 
OF  PURCHASE  MONEY;  RIGHTS,  FRANCHISES,  ETC..  OF  RAILROAD 
ACQUIRED  BY  PURCHASE  VESTED  IN  CONSOLIDATED  COMPANY.—  When- 
ever any  consolidated  railroad  company  described  in  the  next  preceding  section  of  this 
act,  is  in  possession  of  or  operating  in  connection  with  or  extension  of  its  own  rail- 
road line  or  lines,  any  other  railroads  or  railroad  in  this  state  or  in  any  other  state 
or  states  under  any  purchase,  conveyance,  lease,  contract,  or  agreement,  such  con- 
solidated railroad  company  may  take  a  surrender  or  transfer  of  the  whole  or  any 
part  of  the  capital  stock  of  the  company  conveying,  leasing,  or  owning  such  railroad, 
from  any  one  or  more  stockholder  of  stockholders,  and  issue  in  exchange  therefor  the 
like  additional  amount  of  -its  own  capital  stock  at  par,  or  on  such  other  terms  and 
conditions  as  may  be  agreed  upon  by  the  directors  of  the  consolidated  railroad  com- 


Railroad  (  !orpor  \i  u  in 


277 


Consolidation  —  Principal  Office;  Action;  Taxation,   SS  3385 


pany;   and   whenever   the  whole   of   the   said    capital    stork    shall    have   been   so  sur- 
rendered or  transferred,  and  a  certificate  thereof  filed  in  the  office  of  the  secretary  of 
state,  under  the  common  seal  of  the  consolidated   railroad    company  to  whom 
surrender  or  transfer  shall  have  been  made,  the  estate,  property,   rights,  privileges, 
and  franchises  of  the  said  company  whose  stock  shall  have  been  so  surrendered  or 
transferred,  shall  thereupon  vest  in  and  be  held  and  enjoyed  by  the  said  consolidated 
railroad  company  to  whom  such  surrender  or  transfer  shall  have  been  mad.-.  .,     fully 
and  entirely,  and  without  change  or  diminution,  as  the  same  were  before  held 
enjoyed,   and  be  managed  and  controlled  by  the  board  of  directors  of  the  said  con- 
solidated railroad  company  to  whom  such  surrender  or  transfer  of  the  said  stock  shall 
have  been  made,  and  the  two  companies  shall  thenceforth  be  consolidated  and  be  one 
company  under  the  corporate  name  of  such  consolidated  railroad   company,  wit] 
any  other  formalities  or  proceedings   whatever;   but  nothing  herein   contained   shall 
relieve  the  said  consolidated  company  from   paying  the  fee  specified   in   pa' 
two  (2)  and  three  (3)  of  section  148a  of  the  Revised  Statutes,  as  amended  February 
12,    1889.     The   rights   of   any   stockholder  not   so   surrendering   or  transferring 
stock,  shall  not  be  in  any  way  affected  hereby,  nor  shall  existing  liabilities  cr  the 
rights  of   creditors  of  the  company,   where  stock  shall  have  been  so  surrendered  or 
transferred   be   in   any  way   affected   or   impaired   by  the  provisions   of  this   section. 
(April  11,  1890,  87  v.  183.) 


Constitutionality. 

This  section,   in   requiring   the   consolidated 
company  to  pay  a  percentage  fee  on  the  cap 


itai    stock    acquired,    is    constitutional 
Ashley  v.  Ryan,  153  U.  S.  136;  -      ,80    1'.  D. 
215;   s.  ,...  49  Oh.   St   504    I  L89 


§  3385.  PRINCIPAL  OFFICE  TO  BE  ESTABLISHED;  AS  TO  DIRECTORS  AND 
GENERAL  OFFICE. —  The  new  company  shall  as  soon  as  convenient  after  the  con- 
solidation, establish  a  principal  office  at  seme  point  in  this  state  on  the  line  of  its 
road,  and  may  change  the  same  at  pleasure;  but  public  notice  of  such  establishment  or 
change  shall  be  given  in  some  newspaper.  But  this  section  and  the  other  laws  of  this 
state  respecting  the  residence  of  directors  of  corporations  and  the  keeping  of  a  princi- 
pal or  general  office  and  the  records  of  corporations,  shall  not  apply  to  consolidated 
railroad  companies  formed  by  the  consolidation  of  a  railroad  company  or  companies 
created  by  or  existing  under  the  laws  of  this  state  and  any  other  state  or  states,  with 
a  railroad  company  or  companies  of  this  state  or  of  any  other  state;  and  the  eler 
for  directors  of  such  consolidated  railroad  companies  may  be  held  at  the  principal 
office  of  the  company,  whether  located  in  this  state,  or  in  any  other  state  under  the 
laws  of  which  the  said  consolidated  railroad  company  may  have  been  created;  pro- 
vided, however,  that  at  least  two  of  the  directors  of  such  consolidated  railroad  com- 
pany shall  be  residents  of  this  state,  and  that  a  general  office  of  the  company  shall  be 
maintained  at  some  place  within  this  state,  of  which  notice  shall  be  given  as  aforesaid. 
(April  11,   1890,  87  v.   184;  April  10.  1856,  53  v.   143,  §  6.) 

See   §   3311. 

§  3386.  ACTIONS  AGAINST  NEW  COMPANY.—  Suits  may  be  brought  and 
maintained  against  the  new  company  in  the  courts  of  this  state,  for  all  causes  of 
action,  in  the  same  manner  as  against  otner  companies.  (April  10,  1856.  53  v. 
143,  §  7.) 


§  3387.  TAXATION  OF  ROAD  PARTLY  IN  STATE.— That  portion  of  the 
road  of  such  consolidated  company  in  this  state,  and  all  its  real  and  personal  property, 
shall  be  listed  for  taxation  and  taxed  in  the  same  manner  as  the  road  and  property 
of  other  railroad  companies  in  this  state;  and  to  ascertain  the  proportion  of  the  rolling 
machinery  subject  to  taxation  in  this  state,  the  officer  listing  the  same  shall  ascer- 
tain the  value  of  all  the  rolling  machinery  of  the  company,  and  return  a  sum  bearing 


278 


Private  Corporations  in  Ohio. 


Consolidation  —  Dissenting   Stockholders,    SS   3388-3390. 


such  proportion  to  the  value  of  the  whole,  as  the  length  of  the  line  of  such  road  in 
this  state  hears  to  the  length  of  the  whole  line.     (April  10,  1856,  53  v.  143,  §  8.) 

See   §  2744. 

§  3388.  STOCKHOLDER  REFUSING  TO  CONSOLIDATE  TO  BE  PAID 
HIGHEST  MARKET  ^RICE  OR  MUST  ARBITRATE.—  A  stockholder  who  refuses  to 
convert  his  stock  into  tho  stock  of  the  consolidated  company,  shall  be  paid  the  highest 
market  value  of  such  stock  at  any  time  within  two  years  next  preceding  the  time  of 
the  making  of  such  agreement  for  consolidation  hj  the  directors,  if,  previous  to  such 
consolidation,  he  so  require;  and  if  a  stockholder  so  refusing  to  consolidate,  and  the 
hoard  of  directors  of  the  company  desiring  to  consolidate,  can  not  agree  as  to  the  value 
of  such  stock,  the  parties  may  submit  the  question  to  arbitration,  which  arbitration 
shall  be  conducted  in  accordance  with  the  law  regulating  arbitrations,  so  far  as  the 
same  may  be  applicable,  by  three  disinterested  persons,  to  be  appointed  upon  the 
motion  of  either  of  the  parties  by  the  judge  of  the  probate  court  of  the  county  in 
which  the  person  owning  the  stock  resides,  or,  in  case  he  is  a  non-resident  of  any 
county  through  or  into  which  the  road  passes,  then  in  the  county  in  which  the  prin- 
cipal office  of  the  company  is  kept.  If  the  person  so  refusing  to  convert  his  stock 
refuses  to  submit  the  question  to  arbitration,  the  probate  judge,  upon  the  application 
of  either  of  the  companies  desiring  to  consolidate,  shall  appoint  the  arbitrators,  who 
shall  proceed  to  ascertain  the  value  of  the  stock,  the  same  as  if  the  question  had  been 
submitted  by  the  consent  of  both  parties;  and  if  the  party  owning  the  stock  refuses 
to  receive  the  amount  awarded  in  any  case,  the  company  may  deposit  the  same  with 
the  probate  court  of  the  county  in  which  the  arbitration  is  held,  which  deposit  shall 
authorize  the  parties  to  proceed  to  consolidate  without  further  payment  to  such  stock- 
holder. Provided,  however,  if  the  agreement  of  consolidation  provide  that  the  pre- 
ferred stock  of  the  consolidated  companies,  or  either  of  them,  shall  become  and  be  the 
preferred  stock  of  the  consolidated  company  upon  the  same  terms  and  conditions  as 
those  upon  which  it  was  issued,  then  this  section  shall  not  apply  thereto.  (March  15, 
1892,  89  v.  88;  April  4,  1890,  87  v.  159;  April  10,  1856,  53  v.  143,  S  10.) 


Arbitration. 

For  ruling  on  arbitration  proceedings  under 
act  of  April  4,  1890,  87  v.  159,  see  Railway  Co. 
v.  Garrett,  50  Oh.  St.  405    (1893). 

Right  of  dissenting  stockholder. 

The  right  to  consolidate  on  the  vote  of  two- 
thirds  of  the  stock  is  a  part  of  the  contract  of 


each  stockholder  and  the  company  and  other 
stockholders,  and  if  a  stockholder  does  not 
assent  he  must  sell  his  shares  as  provided  by 
statute.— Burke  v.  Cleveland,  etc.,  Ry.  Co., 
22  W.  L.  B.  11,  16   (1889). 


§  3388a.  LAST  SECTION  APPLIES  ONLY  TO  DOMESTIC  CORPORATIONS.— 
In  all  cases  of  consolidation  provided  for  in  section  3330  of  the  Revised  Statutes,  the 
provisions  of  the  section  hereby  supplemented  shall  apply  only  to  stockholders  of 
companies  created  and  organized  under  the  laws  of  this  state,  and  not  to  stockholders 
of  any  corporation  organized  or  existing  under  the  laws  of  any  other  state  or  states, 
it  being  the  inten/Hon  that  the  rights  of  stockholders  of  such  companies  shall  be  de- 
termined by  the  law  ot  such  other  state  or  states.     (March  15,  189a:,  89  v.  88.) 

§  3390.  NOTICE  TO  BE  GIVEN  OF  APPLICATION  FOR  SUCH  APPOINT- 
MENT.— In  all  such  cases  of  arbitration  the  party  desiring  the  arbitration  shall 
give  the  opposite  party  at  least  ten  days'  notice  of  his  intention  to  apply  to  the  judge 
for  the  appointment  of  arbitrators,  which  notice  shall  be  served  in  the  same  manner 
as  is  provided  for  the  service  of  a  summons,  and  shall  specify  the  time  and  place  of 
the  hearing  of  the  application;  and  in  cases  of  non-residents  the  notice  shall  be  by 
publication,  for  four  consecutive  weeks,  in  some  newspaper  printed  in  the  county. 
(April  10,  1856,  53  v.  143,  §  11.) 


Railroad  (  i  >rporai  u  i  279 


Consolidation  —  Joint  Ownership,  etc.,  §g  3391    33 


§  3391.     EFFECT  OF  THE  AGREEMENT  OF  CONSOLIDATION  AS  EVIDJ 
—  A  copy  of  the  agreement  and  act  of  consolidation,   duly  certified   by 
of  state,  shall  be  received  in  the  courts  of  this  state  as  prima  facie  evidi  at 
existence  of  the  several  companies  parties  to  the  agreement,  prior  to  and  al 
of  the  execution  of  the  agreement,  of  the  consolidation  of  the  comp  specified 

in  the  agreement,  that  such  consolidation  was  authorized  by  the  laws  ol 
states  within  which  the  several  companies  were  chartered,  and   into  which    I 
solidated  road  extends,  and  of  all  and  singular  the  facts,  statements,  and  coven 
set  forth  and  recited  in  the  agreement  and  act  of  consolidation,  and  in  the  certificates 
indorsed  thereon.     (February  19,   1858,  55  v.  8,  g   1.) 

§  3392.  IN  ACTIONS  AGAINST  NEW  COMPANY  CERTAIN  PROOF  DIS- 
PENSED WITH. —  It  shall  not  be  necessary  to  produce  or  prove  the  charters  of  the 
companies  parties  to  such  consolidation,  the  laws  of  the  several  states  under  and  by 
virtue  of  which  such  consolidation  was  effected,  or  the  original  articles  of  consolida- 
tion, in  any  suit  brought  to  charge  such  consolidated  company  with  any  liability  of 
either  of  the  companies  parties  to  the  act  of  consolidation,  any  law  or  custom  to  the 
contrary  notwithstanding.     (February   19,   1858,  55  v.   8,   g   2.) 

§  3392-1.  TWO  OR  MORE  COMPANIES  OWNING  A  RAILROAD  MAY  MAKE 
DIVISION  OF  INTERESTS  AND  DISPOSE  OF  SAME.—  In  case  two  or  more  rail- 
road companies,  being  the  owners  in  common  of  the  whole  or  any  part  of  a  railroad 
situated  within  this  state,  and  by  reason  of  inequality  in  the  amount  of  business 
done  thereon  by  each  company,  require  a  different  degree  and  extent  of  improvement 
and  development  of  the  same,  it  shall  be  lawful  for  such  companies  to  enter  into  any 
arrangement  that  may  be  agreed  upon  between  them  for  enlarging,  improving,  de- 
veloping or  increasing  the  facilities  of  such  railroad  or  any  part  thereof;  and  in 
pursuance  of  such  agreement,  or  otherwise,  to  make  such  division  of  the  railroad  and 
appurtenances  so  owned  in  common,  and  to  execute  and  deliver  each  to  the  other,  or 
to  any  other  railroad  company  having  authority  to  purchase  the  same,  such  deed  or 
deeds  of  conveyance  for  the  whole  or  any  part  of  such  railroad,  as  may  be  agreed 
upon  between  such  companies;  provided,  nothing  herein  contained  shall  impair  the 
lawful  lien  of  any  creditor  upon  the  railroad  which  may  be  conveyed  as  aforesaid. 
(April  11,  1883,  80  v.  111.) 

§  3392-2.  PROCEEDINGS  WHEN  SUCH  COMPANIES  CAN  NOT  AGREE 
UPON  DIVISION. —  In  case  such  companies  shall  be  unable  to  agree  upon  an  equita- 
ble plan  for  improving  and  developing,  or  for  the  division  and  sale  of  the  railroad  and 
appurtenances  or  any  part  thereof  so  owned  in  common,  it  shall  be  lawful  for  either 
company  from  time  to  time  to  file  with  the  commissioner  of  railroads  and  telegraphs  a 
statement,  under  the  seal  of  such  company,  of  the  character  and  estimated  cost  of  any 
addition  to,  or  change  in  the  nature  of  the  road-bed.  the  right  of  way,  main  or  side 
track  or  tracks,  bridges,  culverts,  buildings,  structures,  fixtures,  or  appurtenances, 
or  either  or  any  part  thereof,  of  said  railroad,  or  part  of  railroad,  desired  by  such  com- 
pany, and  of  its  inability  to  agree  with  the  other  joint  owner  or  owners  in  respect  to 
the  making  of  such  additions  or  improvements.  Upon  the  receipt  of  such  statement 
the  commissioner  of  railroads  and  telegraphs  shall,  within  thirty  days  of  the  filiner 
of  such  statement,  appoint  a  time  when  the  owners  of  such  railroad  or  part  of  rail- 
road, may  be  heard  respecting  the  reasonableness  and  necessity  of  such  proposed 
additions  or  improvements,  and  give  due  notice  in  writing  of  the  time  and  place  of 
such  hearing  to  each  of  the  owners  aforesaid,  and  it  shall  be  lawful  for  such  commis- 
sioner to  make  such  order  in  respect  to  the  reasonableness  or  necessity  of  the  whole 
or  any  part  of  such  additions  or  improvements,  as  well  as  the  manner  in  which  the 
same  shall  be  made,  and  the  periods  within  which  the  same  shall  be  paid  for.  as  to 


280  Private  Corporations  in  Ohio. 

Joint  Ownership  —  Reorganization,    §§  3392-3-3393. 

him  shall  seem  proper,  and  his  decision  in  the  matter  shall  be  final.  (April  11,  1883, 
80  v.  111.) 

§   3392-3.     THE   COST   OF  ADDITIONS   OR  IMPROVEMENTS;   HOW  PAID.— 

The  cost  of  such  additions  or  improvements  shall  in  all  cases,  unless  otherwise 
agreed  between  the  joint  owners,  be  paid  by  them  in  proportion  to  their  ownership 
in  the  joint  property,  irrespective  of  the  amount  of  traffic  which  each  owner  may  then 
have  passing  over  such  railroad.  If  either  owner  shall  fail  or  refuse  to  pay  the  share 
of  such  cost  as  may  be  due  from  it  on  the  basis  herein  fixed,  or  within  the  period  or 
periods  which  may  be  fixed  by  the  commissioner  of  railroads  and  telegraphs,  as  afore- 
said, suit  may  be  entered  and  judgment  taken  against  the  party  so  in  default,  and  the 
judgment  so  entered  shall  be  a  valid  lien  upon  the  interest  of  the  party  in  default  in 
said  railroad  or  part  of  railroad  owned  jointly  as  aforesaid,  and  such  interest  may  be 
sold  at  public  sale  as  in  other  cases  upon  execution,  and  it  shall  be  lawful  for  any  rail- 
road company  having  authority  to  own  or  operate  a  railroad  in  this  state  to  purchase 
such  interest  at  such  sale,  and  to  enjoy  and  exercise  in  respect  to  the  interest  so  pur- 
chased, all  the  rights,  privileges  and  franchises  which  were  exercised  or  enjoyed  by 
the  company  owning  the  same  at  the  time  of  said  sale.  Provided,  that  the  compul- 
sory power  of  enforcing  additions  or  improvements  provided  for  in  this  and  the  pre- 
ceding section  shall  not  extend  to  local  cr  terminal  depot  or  shop  grounds  or  facilities, 
the  joint  use  of  which  shall  not  be  needed  by  all  the  joint  owners.  (April  11,  1883, 
80  v.   111.) 

Cited  in  Stewart  v.  Railway  Co.,  53  Oh.  St.  151   (1895). 

§  3392-4.  PARTITION  NOT  TO  BE  COMPULSORY.—  Nothing  contained  in  this 
act  shall  be  held  to  imply  or  confer  a  right  or  power  of  compulsory  partition  of  the 
joint  property  against  the  will  of  either  of  the  joint  owners;  but  the  same  may  be 
sold  upon  execution  as  herein  provided.     (April  11,  1883,  80  v.  111.) 

§  3392-5.  COMPANY  SELLING  INTEREST  IN  ROAD  MAY  PURCHASE  OR 
CONDEMN  LAND  ALONG-  CHARTERED  ROUTE.— In  case  either  company  shall, 
pursuant  to  the  agreement  or  to  the  proceedings  aforesaid,  sell  or  convey,  or  suffer  to 
be  sold  or  conveyed,  its  interest  in  the  railroad  or  part  thereof  so  owned  in  common, 
it  shall  be  lawful  for  such  company  to  acquire  by  purchase  or  condemnation,  such 
land  as  may  be  needed  to  enable  it  to  construct  and  maintain  and  operate  a  railroad 
along  and  adjacent  to  such  portion  of  its  chartered  route  as  may  have  been  sold  or 
conveyed  aforesaid,  and  such  company  shall  have  and  enjoy  all  rights  and  franchises 
in  respect  to  such  newly  acquired  railroad  as  were  held  and  enjoyed  in  respect  to  said 
railroad  sold  or  conveyed  as  aforesaid.     (April  11,  1883,  80  v.  111.) 

§   3392-6.     TO    WHICH    COMPANIES    THIS    ACT    APPLIES.— This    act    shall 

apply  in  case  one  or  more  companies,  owners  in  common  as  aforesaid,  shall  have  leased 
its  interest  in  the  portion  of  railroad  so  owned  in  common,  and  the  lessee  of  such 
interest  may  unite  with  the  lessor  in  the  agreement  provided  for  in  section  one 
(S  3392-1)  of  this  act,  or  may  with  such  lessor  and  owner  be  compelled  to  make  or  pay 
for  the  addition  and  improvements  contemplated  in  this  act.  (April  11,  1883,  80  v. 
111.) 

§    3393.     WHEN   PROCEEDINGS   FOR    REORGANIZATION   MAY   BE   HAD.— 

When  proceedings  are  pending  in  any  court  for  the  sale  of  the  road  of  a  company, 
under  a  mortgage  or  deed  of  trust,  and  two-thirds  in  interest  of  the  creditors  and 
two-thirds  in  interest  of  the  stockholders  of  the  company  agree,  in  writing,  upon  a 
plan  for  the  readjustment  or  capitalization  of  the  debt  and  stock  of  the  company,  the 
court  shall  render  judgment  against  the  company  for  the  amount  due  and  in  arrear 


RA]  LR(  IAD   (  Dun  ira  no 


281 


Reorganization  —  Meetings,  etc.,  for,   SS  3394,  3305. 


upon  such  securities,  which  judgment  shall,  from  its  rendition,  become  a  lien  on 

the  property  embraced  in  such  securities,  and  upon  all  the  franchisee  and   j 

the  company,  including  its  franchise  to  be  and  act  as  a  corporation,  conferred   by  the 

charter  and  the  amendments  to   the  charter   of  the   company;   and    upoi 

under  such  judgment,  and  a  purchase  at  such  sale  by  trustees,  on  be]  the  parties 

to   such  agreement,   appointed  by  the  agreement,  all  the  property  so   b-und   by   the 

judgment,    including    said   franchises,    shall    vest   in   such   trustees;    but   eveiy 

agreement  shall  provide  that  the  unsecured  debts  of  the  company,  incurred  for  repairs 

or  running  expenses,  shall  be  paid  in  money,  or  bonds  of  the  reorganized  com; 

of   the  highest   class   issued,   as  hereinafter  provided;   and   a  copy   of  the  agreement 

shall  be  filed  in  such  court,  before  the  rendition  of  the  judgment.     (April   11,    1 

58  v.  70,   §   1.) 


Act   of   1863  —  constitutionality. 

See  Mather  v.   Cincinnati,   etc.,   Rv.   Co.,   3 
O.  C.  C.  2S4   (1888);  s.  c,  2  C.  D.   161. 


Construction   of   agreement. 

See   Hal  ry  v.   Pa  iin--\  ille,  et<  1   <  >. 

('.  (  .   126  (1886)  ;  -.  c,  LCD    - 


§  3394.  MEETING  OF  CREDITORS,  AND  PROCEEDINGS  THEREAT.— The 
trustees  shall,  as  soon  as  practicable  after  the  sale,  call  a  meeting  of  the  parties  to  the 
agreement  by  a  notice  signed  by  a  majority  of  the  trustees,  or  of  their  survivors,  and 
published  not  less  than  once  a  week,  for  four  consecutive  weeks,  in  a  newspaper 
printed  in  the  cities  of  New  York  and  Philadelphia,  and  in  a  newspaper  printed  in 
each  county  on  the  line  of  the  railroad,  specifying  the  day,  place,  and  object  of  such 
meeting  —  the  place  to  be  on  the  line  of  the  ."oad;  at  such  meeting  each  of  the  parties 
to  the  agreement  shall  be  entitled  to  vote  according  to  the  provisions  thereof,  but  not 
exceeding  one  vote  for  every  fifty  dollars  of  the  par  value  of  the  debt  or  stock  of  such 
party,  according  to  a  list  of  voters  and  of  their  respective  interests,  which  shall  be 
prepared  by  the  majority  of  the  trustees,  who  are  empowered  to  act  as  judges  of  the 
election;  such  meeting,  by  a  majority  in  interest  of  the  persons  present,  in  person  or 
by  proxy,  shall  be  competent  to  retain  or  change  the  name  of  the  company,  to  decide, 
for  the  time  being,  the  amount  of  iis  capital,  and  the  number  of  shares  into  which 
such  capital  shall  be  divided,  to  fix  the  number  of  directors,  and  their  term  of  office, 
to  elect  such  directors,  a  majority  of  whom  shall  be  residents  of  the  state  or  states  in 
which  such  railroad  is  situate,  and  to  do  all  things  necessary  or  proper  to  reorganize 
the  company;  but  any  creditor  shall  be  entitled  to  become  a  party  to  the  agreement 
aforesaid,  either  at  or  any  time  before  the  meeting  in  this  section  provided  for,  and 
any  stockholder  shall  be  entitled  to  become  a  party  to  such  agreement  at  any  time 
within  one  year  after  such  meeting.     (April  11,  1861,  58  v.   70,   §  2.) 


When  bondholder  may  vote. 

Where  a  railroad  corporation  reorganizes 
under  the  act  of  April  11,  1861,  and.  in  the 
agreement  therefor,  it  is  stipulated  thai  cer- 
tain bonds  of  the  original  company  shall  be 
assumed  by  the  new  company,  and  the  holder 
thereof  entitled  to  vote  at  all  meetings  of 
stockholders,  upon  conditions  specified,  which 
he  performs,  the  new  company  becomes  liable 
to  pay  the  bonds,  and  the  holders  thereof  enti- 
tled  to   vote,   without   further   action   on  the 


part    of    the    new    company.  Mo- 

Daniel,  22  Oh.  St.  354    I  18 

Directors. 

In  a  corporation  reorganized  under  this  act. 
it    i-,  no!    necessary  thai    the  directors  should 
be    stockholders.     The   statute   only    requires 
them  to  be  residents  of  the  state,  and  in  the 
absence  of  a   Btatute  requiring  it.  the 
tion  of  the  stockholders  in  electing  dire*  I 
nol    limited    to    stockhol 
Daniel.  22  Oh.   St.   354    I  It 


§  3395.  WHAT  MUST  BE  CERTIFIED  TO  THE  SECRETARY  OF  STATE  — 
A  certificate  under  the  common  seal  of  the  company,  specifying  its  name,  and  the 
railroad  which  it  is  to  hold,  maintain,  and  operate,  shall  be  filed  in  the  office  of  the 
secretary  of  state;  and  a  copy  of  such  certificate  duly  certified  shall,  in  all  courts  and 
places    be  pvidence  of  a  compliance  with  all  the  conditions  and  provisions  of  the  two 


282  Private  Corporations  in  Ohio. 

Reorganization  —  Powers  of  New  Company,    §§   3396,   3397. 

preceding   sections,    and  of    the  due  reorganization  and   existence   of   the   company. 
(April  11,  1861,  58  v.  70,  §  3.) 

§  3396.  THE  PROPERTY  AND  POWERS  OE  THE  NEW  COMPANY.— Upon 
such  reorganization,  and  a  conveyance  by  the  trustees,  or  of  such  of  them  as  shall  be 
vested  with  the  legal  title,  or  their  survivors,  all  the  railroad  and  other  property  and 
franchises  and  things  purchased  as  aforesaid,  and  all  the  franchises,  powers,  faculties, 
privileges,  and  immunities  which  were  possessed  or  enjoyed  by  the  original  company, 
or  by  any  company  with  which  it  had  been  consolidated,  shall  pass  to  and  be  vested 
in  the  company  as  reorganized;  and  the  same,  and  all  property  and  things  which  the 
reorganized  company  shall  thereafter  acquire,  except  as  hereinafter  provided,  shall 
be  taken,  held,  and  disposed  of  for  the  use  and  benefit  of  the  creditors  and  stockholders 
of  the  company,  who  shall  have  become  such  upon  and  after  such  reorganization, 
according  to  their  respective  rights,  but  subject  to  the  powers  of  the  company,  and 
shall  be  in  no  wise  chargeable  in  respect  to  any  debt,  liability,  or  claim  of  any  creditor 
or  stockholder  which  subsisted  prior  to  the  sale  and  reorganization  herein  provided 
for,  but  all  property  of  the  original  company  not  embraced  in  the  sale  shall,  upon  the 
reorganization,  be  vested  in  the  company  as  reorganized,  in  trust  for  all  parties 
interested  therein  as  creditors,  stockholders,  or  otherwise.  (April  11,  1861,  58  v. 
70,   §  4.) 

§  3397.  FURTHER  POWERS  OF  THE  NEW  COMPANY.—  Such  company  shall 
likewise  have  power,  at  any  time  within  six  months  after  the  organization,  to  assume 
such  debts  or  liabilities  of  the  original  company,  and  to  make  such  adjustments  or 
exchanges  with  any  bondholder  of  the  original  company,  and,  within  one  year,  with 
any  stockholder,  as  it  may  deem  expedient,  and  may  use  for  such  purpose  any  bonds 
or  stock  which  it  may  be  authorized  to  issue  or  create;  and  it  may  make  and  issue 
such  bonds,  payable  at  such  times  and  places,  and  bearing  such  rates  of  interest  not 
exceeding  six  per  centum  per  annum,  as  it  may  deem  expedient,  and  may  secure  the 
payment  of  any  bonds  which  it  may  issue  or  assume  to  pay,  by  mortgages  or  deeds 
of  trust  of  its  railroad,  or  any  other  of  its  property,  real  or  personal,  and  may  include 
therein  with  its  road  all  its  cars  and  other  rolling-stock  and  equipments,  and  any 
machinery,  tools,  implements,  fuel,  materials,  and  all  other  things  then  held  or  there- 
after acquired  for  constructing,  operating,  or  repairing  the  road,  or  for  repairing  or 
replacing  any  of  its  equipments  or  appurtenances,  as  part  and  parcel  of  the  road,  and 
as  constituting  with  the  road  one  property,  and  may  include  in  such  mortgages  or 
deeds  of  trust  all  franchises  held  by  the  company,  and  connected  with  or  related  to  the 
road,  and  all  other  corporate  franchises  of  the  company,  all  which  franchises,  includ- 
ing the  franchise  to  be  a  corporation,  in  case  of  sale  by  virtue  of  any  such  mortgage 
or  deed  of  trust,  or  of  any  judgment  specified  in  the  next  section,  are  hereby  declared 
to  pass  to  the  purchasers,  so  as  to  enable  them  to  reorganize  the  company  in  the 
manner  hereinbefore  provided;  and  such  company  may  issue  capital  stock  to  such 
aggregate  amount  as  it  may  deem  proper,  not  exceeding  any  limit  which  may  be 
fixed  by  agreement  with  the  trustees  purchasing  as  aforesaid,  and  may  establish 
preferences  in  respect  to  dividends,  in  favor  of  any  class  of  the  stock,  in  such  order 
and  manner  as  it  may  deem  expedient,  not  exceeding  such  limit  as  may  be  fixed  by 
agreement  as  aforesaid;  and  may,  if  authorized  by  the  agreement,  confer  on  holders 
of  any  bonds  which  it  may  issue  or  assume  to  pay,  such  rights  to  vote  at  all  meetings 
of  stockholders,  not  exceeding  one  vote  for  every  fifty  dollars  of  the  par  amount  of 
the  bonds,  as  may  have  been  provided  for  in  the  agreement,  which  rights,  when  once 
fixed,  shall  attach  to  and  pass  with  such  bonds,  under  such  regulations  as  the  by-laws 
may  prescribe,  to  the  successive  holders  thereof,  but  shall  not  subject  the  holder  to 
any  assessment  by  the  company,  or  to  any  liability  for  its  debts,  or  entitle  any  holder 
to  dividends.     (April  11,  1861,  58  v.  70,  §  5.) 


Railroad  <  !orporai  [o  283 


Stocks  and  Securities  —  Liti 


§   3397a.     ISSUE   OF   STOCK   OR   SECURITIES   BY   COMPANII.:;    ORGAN] 
OR    REORGANIZED    UNDER    AGREEMENTS;    TERMS    OF    SUCi 

TO    APPEAR    ON    STOCK   AND    SECURITIES    ISSUED;    RIGHTS    OF  US.— 

In  all  cases   of  railroad  companies  heretofore  or  hereafter  organized   I 
under  the  laws  of  Ohio,   wherein  the  organization  or  reoi 

vides  and  stipulates  that  any  class  of  creditors,  bondholders  or  stockl.  :    the 

original  company,  shall  in  any  wise  be  restricted  or  limited,  in 
or  dividends,   or  in  respect  to  liens  or  the  right  to  vote  as  the  holdei 
securities  in  said  reorganized  company,   the  said  reorganized  company, 
and  officers,  shall  issue  the  certificates  of  stock  or  securities  into  which 
stock,  securities  or  debt  may  be  convertible,  bearing  upon  the  face  of  each,   plainly 
and  distinctly  set  forth,  such  restrictions  or  limitations,  so  that  pure!.  y  be 

advised  of  the  terms  thereof,  and  all  holders  of  stock  or  securities  created  u: 
reorganization  agreements,  shall  hereafter  have  only  such  restricted  or  limit' 
liens,  participation  in  profits,  dividends  and  right  to  vote  thereon,  as  may  be  in  such 
agreements,  certificate  of  stock  or  securities  provided  and  set  forth.     (March  19.  1887, 
84  v.    142.) 

§  3398.  LIEN  OF  MORTGAGES,  ETC.—  The  lien  of  the  mortgages  and  deeds  of 
trust  authorized  to  be  made  by  the  preceding  section  shall  be  postponed  to  the  lien  of 
judgments  recovered  against  the  company,  after  its  reorganization,  for  labor  there- 
after performed  for  it,  or  for  materials  or  supplies  thereafter  furnished  to  it,  or  for 
damages,  losses,  or  injuries  thereafter  suffered  or  sustained  by  the  misconduct  of  its 
agents,  or  in  any  action  founded  on  its  contracts  or  liability  as  a  common  carrier 
thereafter  made  or  incurred.     (April   11.    1861,   58  v.  70,   g   6.) 

Cited  in  Stewart  v.  Railway  Co.,  53  Oh  St.     incut  and  thai  the  cause  of  action  upon  which 
151,  172   (1895).  it   was  obtained  was  such   as  I  within 

the    terms    i>i    ihi- 
Applicable  to  foreign  companies.  ,.,,.    Co.  v.  Cincinnati,  etc.,  K.  K.  '  0.,  Jl  W.  L. 


B.  275    (1889). 

Parties  to  action  for  judgment. 

In  an  original  action  to  obtain  a  judgment 
for  the  value  or  price  of  the  supplies  fur- 
nished,   other    Iienholders    are    ii"' 


Sec   King   v.    Thompson,   46   W.   L.   B.   210 
(1901). 

Construction. 

This  section  should  ho  fairly  construed  (not 
strictly)   so  as  to  effect  the  purpose  for  which 

it  was  enacted.- Farmers'   Loan    etc..  Co.  v.     o""^^"^^ 
Cincinnati,  etc,  R.  R.  Co.,  21  W.  L.  B.  275     ejmJ  ]i(.'  ,„,,,„.,.,,.   determined   in   a    subsequent 
.l°kJ).  ;|(,t  i(1)1  1()  marshal  liens 

Constitutionality.  ( '"•  v-  Cincinnati,  etc.,  1:    R.  I        ii  W.  I.    B 

See   King   v.    Thompson,    46  W.   L.   B.   210     2/o   (1889). 
(1901 


Burden  of  proof. 

Where  the  holder  of  a  judgment  for 
materials  and  supplies  claims  a  priority 
over  mortgages  existing  before  the  supplies 
were  furnished,  the  burden  of  proof  i<  on  such 


Assignment  of  claims. 

claim-    for    Bupplies    furnished    under    thi- 
section  may  be  assigned  and  judgment  tl 
taken  by  the  assignee,  w  ho  '  n< 

he    rights    of    tl riginal    claimant.— 

Farmers'  Loan,  etc.,  <  !o.  v.  <  incinn   I 


claimant  to  show  that  he  has  obtained  a  judg-     R.   Co.,  21   W.  L.  B.  275 

§  3398a.  LIEN  FOR  LABOR  PERFORMED  FOR  RAILROAD  COMPANY  — 
That  in  all  actions  now  pending  or  hereafter  commenced  in  any  of  the  courts  of  this 
state,  either  as  original  actions,  or  as  proceedings  in  error  against  any  railroad  cor- 
poration now  existing  or  hereafter  created,  or  any  foreign  railroad  company  operat 
and  carrying  on  business  in  this  state,  when  such  action  is  for  the  purpose  of  recover- 
ing judgment  against  said  corporation,  for  labor  performed  for  it.  or  for  materials 
or  supplies  furnished  to  it,  or  for  damages  or  losses,  or  injuries  suffered  or  sustained 
by  the  misconduct  of  its  agents,  or  in  any  action  founded  on  its  contracts  or  liabilities 
as  a  common  carrier  made  or  incurred,  which  action,  by  virtue  of  statutory  enact- 


284  Private  Corporations  in  Ohio. 


Liens  for  Labor,  etc.,   S§   3398b-3399. 


ment,  or  upon  principles  of  equity,  would,  when  reduced  to  judgment,  become  a  lien 
upon  the  property  of  such  corporation  prior  in  law  or  equity  to  the  lien  of  any  mort- 
gage or  deed  of  trust  authorized  to  be  made  by  any  of  the  statutes  of  this  state,  such 
Judgment  shall  be  and  remain  a  prior  lien  upon  such  railroad  property,  notwith- 
standing any  sale  or  conveyance  of  such  property  by  virtue  of  any  judgment  or  decree 
of  foreclosure  founded  upon  a  breach  of  the  terms  and  conditions  of  any  such  mort- 
gage or  deed  of  trust.  (February  17,  1882,  79  v.  11.) 
See  §  3207  et  seq.,  and  §  3231-1  et  seq. 

§  3398b.  HOW  SUCH  LIEN  ENFORCED.— That  the  party  prosecuting  such 
action  in  order  to  avail  himself  of  the  provisions  of  section  three  thousand  three  hun- 
dred and  ninety-eight  (a)  of  this  act,  shall,  before  the  day  fixed  for  the  sale  of  the 
property  of  any  such  railroad  under  any  judgment  or  decree  of  foreclosure  and  sale, 
file  with  the  clerk  of  the  court  wherein  such  judgment  or  decree  of  foreclosure  and 
sale  was  rendered,  a  notice  in  writing,  setting  forth  the  title  of  his  action,  the  court 
wherein  pending,  the  amount  of  his  claim,  the  date  from  which  he  claims  interest 
thereon,  the  probable  amount  of  costs,  and  that  he  claims  that  the  judgment  by  him 
sought  to  be  recovered  would,  when  obtained,  become  a  lien  prior  in  law  or  equity  to 
the  "lien  of  the  judgment  or  decree  of  foreclosure  and  sale.  That  he  shall  also  before 
the  day  of  sale,  or  at  the  time  thereof,  serve  a  certified  copy  of  such  notice  upon  the 
officer  or  other  person  making  such  sale,  who  shall,  before  offering  said  property  for 
sale,  read  such  notice  publicly  at  the  time  and  place  of  sale,  and  shall,  with  his 
return  of  such  sale,  return  such  certified  copy  of  notice  with  the  endorsement  of  his 
proceedings  thereunder  upon  the  same,  to  the  court.     (February  17,  1882,  79  v.   11.) 

§  3398c.  IN  CASE  OF  SALE,  COURT  TO  RETAIN  AMOUNT  OF  LIEN.—  That 
the  court,  on  the  return  of  the  officer  or  other  person  making  such  sale,  before  con- 
firming the  same  and  ordering  distribution  of  the  funds  arising  therefrom,  shall 
retain  in  its  custody  or  under  its  control,  a  sufficiency  of  such  proceeds  applicable  to 
distribution  to  the  claimants  under  the  liens  of  the  mortgage  or  deed  of  trust,  to 
satisfy  any  judgment  which  may  be  recovered  in  the  action  provided  for  in  section 
three  thousand  three  hundred  and  ninety-eight  (a)  of  this  act,  when  ended  and  deter- 
mined.    (February  17,   1882,  79  v.   11.) 

§  3398d.  WHAT  TO  BE  DONE  IN  CASE  JUDGMENT  RECOVERED.— That 
within  sixty  days  after  the  determination  of  the  action  referred  to  in  section  three 
thousand  three  hundred  and  niney-eight  (a),  the  party  claiming  such  priority  of 
lien,  if  he  shall  have  recovered  judgment  against  said  railroad  company,  shall  file 
his  answer  and  cross-petition  in  the  action  pending  in  the  court  holding  the  fund  as 
provided  in  section  three  thousand  three  hundred  and  ninety-eight  (a)  setting  forth 
his  legal  and  equitable  claim  thereto,  and  such  court  shall  make  the  proper  orders 
necessary  to  the  determination  of  the  questions  of  priorities  and  distribution  of  the 
retained  fund,  as  in  section  three  thousand  three  hundred  and  ninety-eight  (c)  pro- 
vided.    (February  17,   1882,  79  v.   11.) 

§  3399.  THESE  PROVISIONS  APPLICABLE  TO  OTHER  CORPORATIONS  — 
FOREIGN  CORPORATIONS.— The  provisions  of  the  seven  preceding  and  the  next 
succeeding  sections  shall  extend  and  apply  to  companies  whose  railroads  are  partly 
within  and  partly  without  this  state;  a  company  of  this  state,  possessing  such  a  rail- 
road, shall  have  capacity  to  exercise  without  this  state  all  its  powers,  privileges, 
faculties,  and  franchises;  a  corporation  of  another  state  possessing  a  railroad  which 
is  partly  in  such  other  state  and  partly  within  this  state,  may  exercise  and  enjoy 
within  this  state  all  its  powers,  privileges,  faculties,  and  franchises,  for  the  purpose 
of  such  railroad  and  its  business,  not  inconsistent  with  the  laws  of  this  state;  and  all 


Railroad  Corpora! 


285 


Sale  and  Reorganization  under  Mortgage,  etc., 


mortgages  and  deeds  of  trust  made  by  such  corporation  up'  -nts, 

or  other  property  within  this  state,  shall  operate  in  the 

like   effect  as   hereinbefore  provided  with   respect   to   companies   so   reoi 

Buch  part  of  the  railroad  as  is  within  this  state  shall  be  subject  to  tax 

all  regulations  of  law,  in  the  same  manner  as  railroads  of  this  state  in  '. 

the   corporation  owning  the   same   shall  be   subject  to   all    duties    in    respect   thi 

imposed  by  law,  and  may  sue  and  be  sued  in  all  cases  and   in  the  same  mannei  as  a 

company  of  this  state  might  sue  or  be  sued.     (April  llf  1861,  58  v.   70,       7  > 


Power  to   condemn  land. 

There  is  not  only  no  law  of  Ohio  prohibit- 
ing the  ownership  and  use  of  railroads  in  1 1n- 
state by  foreign   corporations,   and   no  public 

policy  of  the  state  to  be  contravened  thereby, 
but  there  is  abundant  legislation  directly  to 
the  contrary.  Where  the  act  incorporating  a 
foreign  corporation  gives  it  the  power  to  con- 
demn and  appropriate  private  property,  if  its 
road  is  partly  in  this  state  and  partly  in  a 
foreign  state,  it  may  exercise  and  enjoy  within 
this  state  all  its  powers,  privileges,  faculties, 
and  franchises,  for  the  purpose  of  said  rail- 
road  and   its  business  not   inconsistenl    with 


the  laws  of  this   state. 

i  he   right    t ndemn   and  appn 

private  propertj    in  Ohio  to  all   rai 
porations    oi    other  •     tin- 

power    of    condemnation     and     ap| 
given  them  in  their  charters  of  incorpoi 
where  their  road-  lie  partly  within  thin 
—  State  v.  Sherman,  22  Oh.  St.  il  1. 

Foreign  corporation   does   not   beeoau    ■> 
domestic   corporation   by   lr-asim;   road. 

Baltimore,  etc.,  R.  R.  '  o.  v.  I 
■jos    ,  1876)  :    Railway    I  Stru 

si.   168   (1877). 


§  3400.  THE  PROPERTY  MORTGAGED  MAY  BE  SOLD  WITHOUT  AP- 
PRAISEMENT.—  Railroads,  and  other  property  mortgaged  therewith  by  such  com- 
pany may,  if  the  court  deems  it  expedient,  be  sold  without  appraisement,  at  judicial 
sales  under  judgments  upon  such  mortgage;  but  in  such  case,  in  order  to  prevent  sac- 
rifices, and  protect  the  interests  of  all  concerned,  the  court  shall  fix  a  minimum  sum 
below  which  no  such  sale  shall  be  made;  and,  in  order  to  fix  that  amount,  the  court 
may  if  it  deems  it  expedient  to  do  so,  refer  the  subject  to  a  master,  with  instructions 
to  take  testimony,   and  report  the  sum.     (April   11,   1861,   58  v.  70,   5  8.) 

§  3401.  WHEN  CREDITORS  OF  COMPANIES  MAY  AGREE  ON  CAPITALIZA- 
TION.—  When  judicial  proceedings  are  pending  in  any  court  sitting  in  this  state  for 
the  sale  of  any  railroad,  and  the  same  is  in  the  hands  of  a  receiver  appointed  by  such 
court,  two-thirds  in  interest  of  each  class  of  mortgagees,  or  holders  of  the  bonds  issued 
under  a  mortgage,  and  two-thirds  in  interest  of  all  other  classes  of  creditors  of  such 
company,  and  the  owners  of  two-thirds  of  the  shares  of  the  stock  thereof,  may  agree 
in  writing  upon  a  plan  for  the  adjustment  of  such  indebtedness,  by  capitalization  or 
otherwise.     (April  7,   1863,  60  v.  55,  §  1.) 


tional.    -  Mather   v.   <  inch  3   0. 

I      i      284    i  L888)  :   s.  c,  -'  '  .   !».   161. 


Constitutionality. 

In   so   far   as   this   section    applies    to   debts 
created   before   its   passage,   it   is   unconstitu- 

§  3402.  SECRETARY  OF  STATE  TO  PUBLISH  NOTICE  OF  THE  AGREEMENT. 
—  When  such  agreement  is  made,  and  filed  in  the  office  of  the  secretary  of  s 
shall  cause  public  notice  thereof  to  be  given  in  a  newspaper  of  general  circulation  pub- 
lished in  each  of  the  cities  of  Cclumbus.  Cincinnati,  and  Cleveland,  and  also  in  a  news- 
paper of  general  circulation  published  in  each  of  the  counties  through  or  in  which 
the  road  is  located,  which  publication  shall  be  made  immediately  after  the  agreement 
is  filed,  and  be  continued  for  six  consecutive  weeks,  and  the  cost  thereof  shall  be  paid 
by  the  company.     (April  7,   1863,  60  v.  55.  §  2.) 

§  3403.  OTHER  CREDITORS  MAY  SIGN  THE  AGREEMENT.—  A  duplicate  of 
the  agreement  shall  be  kept  at  the  principal  office  of  the  company:  and  all  persons 
in  interest,  not  parties  thereto,  shall  be  at  liberty,  for  the  period  of  four  months  from 
and  after  the  date  of  the  first  publication,  to  appear  and  become  a   party 


286 


Private  Corporations  in  Ohio. 


Sale  and  Reorganization  under  Mortgage,  etc.,  §S   3404-3408. 


agreement,  either  in  person  or  by  proxy,  by  signing  the  same,  and  thereby  secure  the 
benefits  thereof.     (April  7,   1863,  60  v.  55,   §  3.) 

§  3404.  RIGHT  OF  THOSE  WHO  DO  NOT  SIGN  —  All  persons  in  interest  who 
fail  to  become  parties  to  the  agreement  within  the  time  aforesaid  shall  thereafter  be 
entitled  to  the  same  rights,  interest,  and  estate,  remedy,  liens,  and  action,  and  none 
other  which  parties  in  interest  of  like  class  and  amount  who  signed  the  agreement 
obtained  by,  through,  and  under  the  agreement;  but  if  any  person  in  interest  neglect 
and  fail  for  the  period  of  six  years  after  the  publication  of  the  notice  mentioned  in 
section  three  thousand  four  hundred  and  two,  to  apply  at  the  principal  office  of  the 
company,  either  in  person  or  by  proxy,  to  become  a  party  in  interest  in  the  agreement, 
such  person,  unless  an  infant,  a  married  woman,  or  insane  shall  be  barred  of  all  inter- 
est, claim,  right,  or  action  under  the  agreement,  or  otherwise;  and  in  case  of  such  dis- 
ability the  rights  above  enumerated  shall  be  extended  for  the  period  of  two  years  after 
the  termination  of  the  disability.     (April  7,  1863,  60  v.  55,  §  4.) 

§    3405.     WHEN  THE   COURT  TO  MAKE   ORDER   TOUCHING  COSTS.— When 

the  agreement  is  made,  filed,  and  notice  thereof  given,  and  proof  thereof  made,  or 
offered  to  be  made,  in  the  court  in  which  the  proceedings  are  pending  the  court  shall 
dismiss  the  proceedings;  but  the  court  may  make  such  order  or  decree  touching  the 
costs  and  expenses  thereof  as  it  may  deem  just  and  proper.  (April  7,  1863,  60 
v.    55,    §    5.) 

§  3406.  AGREEMENT  MAY  BE  BETWEEN  EACH  INTEREST  AND  THE  COM- 
PANY.— The  agreement  shall  not  be  required  to  be  between  the  several  interests 
hereinbefore  specified,  but  may  be  between  each  interest  separately,  and  the  railroad 
company.     (April  7,  1863,  60  v.  55,  §  7.) 

§  3407.  WHEN  THE  ROAD  IS  USED  BY  TWO  COMPANIES.—  If  the  railroad 
involved  in  such  judicial  proceedings  is  used,  in  whole  or  in  part,  by  such  company 
in  common  with  any  other  railroad  company,  on  the  same  track,  between  any  points 
on  the  line  common  to  both,  and  within  the  limits  of  the  termini  established  by  the 
charters  of  both  companies,  the  company  owning  the  railroad,  if  the  same  can  be  done 
without  impairing  the  usefulness  thereof  to  it,  may  lease  for  a  period  of  years,  for 
an  annual  rent,  or  sell  for  a  fixed  sum,  to  the  company  to  which  the  line  of  road,  in 
whole  or  in  part,  is  common,  an  undivided  interest  in  the  same,  upon  such  terms  and 
conditions  as  may  be  agreed  upon;  and  such  lease  or  sale  shall  be  reported  to  and 
approved  by  the  court,  and  when  so  made  and  approved,  the  lessee  or  vendee  thereof 
shall  hold  the  same  free  from  any  previous  lien  which  had  been  put  thereon.  (April 
7,  1863,  60  v.  55,  §  8.) 


Partition. 

"Where  by  the  purchase  of  an  undivided  in- 
terest under  this  section,  a  tenancy  in  com- 
mon becomes  established,  partition  cannot  be 


compelled  by  either  party  under  the  statutes 
in  relation  to  partition  or  in  equity. —  Rail- 
way Co.  v.  Railroad  Co.,  38  Oh.  St.  Gi4  (1SS3). 


§  3408.  WHEN  STOCK  OR  BONDS  ARE  HELD  IN  A  FIDUCIARY  CAPACITY. 
—  When  any  portion  of  the  stock  or  bonds  of  a  company  is  held  by  the  state,  or  a 
county,  township,  city,  village,  or  other  municipal  corporation,  or  by  an  executor, 
administrator,  or  a  guardian,  or  otherwise  in  a  fiduciary  capacity,  the  governor, 
county  commissioners,  township  trustees,  council,  or  other  authority  of  the  municipal 
corporation,  or  person  holding  in  a  fiduciary  capacity,  may  become  parties  to  any 
agreement  for  the  reorganization  of  such  company,  and  may  control,  excliange,  or 
manage  such  stock  or  bonds  according  to  the  terms  of  the  agreement,  and  take  and 
receive  new  stock  or  bonds  to  be  issued  in  lieu  of  the  original  stock  or  bonds,  which 


Railroad  (  287 


Sale  of  Road-bed,  Regulation  as  to, 


shall  be  held  on  the  same  terms,  and  subject  to  all  liens,  which 

inal  stock  or  bonds.     (April  11,  1861,  58  v.  70,    |  9;  April  7,   L868,  80 

§    3409.     WHEN  A  COMPANY  MAY  SELL  ITS  ROAD-BED,  ETC.       A 
owning  in  whole  or  in  part  any  road-bed  and  right  of  way 
state,    including   those   acquired   by   purchase   at   judicial   sale,    which, 
means,  or  other  cause,  is  unable  to  complete  the  construction  of  its  proposed  li;; 
road  thereon,  may  sell,  assign,  and  transfer  the  same,  oi  rl    thereof 

other  company  incorporated  under  the  laws  of  this  state,  with  authority  to  cons' 
and  operate  a  railroad  over  the  same  route,  or  any  part  thereof,  which  trao 
include  all  work  done  upon  such  line  of  road,  together  with  all  materia  1    : 
therefor,   not  exempted  by  the  terms  of  the  grant,  with  all  rightfs).  privileges,  and 
easements,  as  fully  as  the  same  are  or  may  be  possessed  by  the  company  making  the 
same,  and  shall  to  the  same  extent,  vest  the  title  of  and  the  right  to  enjoy  the  same 
in  such  grantee.     (May  5,  1868,  65  v.  142,  §  1;  May  7,  1869,  66  v.  334.  H   1.  2.) 


i  ■>  -i  ock,  a  ml  a  sale  by  >  n< 

.,['  it  -  road  under  this  seel  ion  • 

i  he  subscriber  excepl  when,    >  nd    >  -    pr< 

i-  made  thcn-for  by   statute.     Armstrong  v. 


No  power  to   sell   stock   subscriptions. 

This  section  confers  no  authority  on  rail- 
way companies  to  soil  subscriptions  t<>  their 
stock  along   with  their   road-   when   they   find 

it  impossible  to  complete  the  same,  from  lack     Karshner,  47  Oh.   St.  J 7 •  ">    (1890 
of  means.    And  if  it  were  attempted  to  trans- 
fer a  conditional  subscription  to  the  company     Rights  of  conditional  subscriber. 
purchasing  the  road,  such  company  could  not         See    Armstrong  v.   Karshner,  47  0 
by    performing    the    condition     precedent    fix     298    (1890). 
the  liability  of  the  subscriber. —  Railroad  Co. 
v.  Hinsdale,  45  Oh.  St.  556  (18S8). 


Power     of     railroad     company      to 

sell 

property. 

-    •  Donner  v.  Dayton,  etc.,   I:.  B 

1     C. 

s.  (  .  L3C  (1871). 

Subscriber  not  released  by  sale  of  road. 

This  section  is  a  part  of  every  subscription 

§  3410.  THE  TRANSFER  TO  BE  BY  DEED.—  Such  transfer  shall  be  by  deed, 
duly  executed  by  the  president  of  the  company  grantor,  in  the  manner  provided  by 
law  for  the  conveyance  of  real  estate,  and  shall  be  for  such  consideration  as  the 
parties  may  agree  upon.     (May  5,  1868,  65  v.  142,  §  2.) 

§   3411.     TWO-THIRDS  IN  INTEREST  OF  STOCKHOLDERS  MUST  CONSENT. 
—  Before  any  such  transfer  shall  be  made,  the  president  of  the  company  shall  call  a 
meeting  of  the  stockholders  of  the  company,  at  some  convenient  point  on  the  line,  or 
at  a  terminus  of  the  road,  of  whch  he  shall  cause  at  least  thirty  days'  notice  to  be 
published,    in   some  newspaper  printed  or  in   general   circulation  in   each   county   in 
which  such  road-bed  and  right  of  way  are  situate;  such  meeting  may.  by  a  concur- 
rent vote  of  two-thirds   in  interest  of  the   stock   represented   thereat  by  the  owners 
thereof,  in  person,  or  by  proxy,  declare  by  resolution  the  inability  of  such  company 
to  complete  its  line  of  road,  prescribe  the  terms  of  the  proposed  transfer  of  i' 
bed  and  right  of  way,  and  direct  the  president  of  the  company  to  execute  the 
and  all   such  proceedings,   resolutions,   and  directions   shall   be  duly  recorded  in  I 
proper  record  book  of  the  company,  and  a  copy  thereof  delivered  to  the  grantee,  and 
they  shall  also  be  recited  in  the  deed.     (May  5.  1868.  65  v.  142,  ><  3.) 

§   3412.     WHAT  INTEREST  DISSENTING   STOCKHOLDER    MAY   RETA 
No  transfer  shall  be  made  against  the  dissent  of  any  stockholder,  expressly  declared 
and  filed  in  writing  at  such  meeting,  without  the  guaranty  of  the  company  grant* 
that  it  will  cause  to  be  issued  to  him  certificates  of  its  capital  stock,  equal  in  amount 


288 


Private  Corporations  in  Ohio. 


Road-bed,  etc.;  Sale  and  Forfeiture  of  —  Receiver,  Action  by,  etc.,  §§  3413-3415. 

to  his  pro  rata  interest  as  a  stockholder  of  the  grantor,  in  the  amount  for  -which  the 
property  is  sold.     (May  5,  1868,  65  v.  142,  §  4.) 


Rights  of  conditional   subscribers. 

Conditional  subscribers  to  capital  stock  do 
not  acquire  any  rights  under  this  section  until 
the  happening  of  the  contingency  upon  which 


payments  on  the  subscription  are  made  de- 
pendent.—  See  Railroad  Co.  v.  Hinsdale,  45 
Oh.  St.  573  (1888);  Armstrong  v.  Karshner, 
47  Oh.  St.  276,  299   (1890)  ;  R.  S.  §  3298. 


§  3413.  TITLE  TO  PROPERTY  VESTS  IN  GRANTEE.—  The  title  to  the  prop- 
erty so  transferred,  together  with  the  right  to  use,  occupy,  and  enjoy  the  property, 
for  any  and  all  purposes  proper  for  the  construction,  maintenance,  and  operation  of  a 
railroad  thereon,  shall  pass  to  and  vest  in  the  company  grantee,  by  the  execution 
of  the  deed,  to  the  same  extent  as  the  granting  company  might  or  could  use,  occupy, 
and  enjoy  the  same.     (May  5,  1868,  65  v.  142,  §  5;  May  3,  1873,  70  v.  245,  §  1.) 

§  3414.  CERTAIN  RIGHTS  OP  WAY  FORFEITED.—  Where,  upon  an  unfinished 
road,  a  right  of  way,  or  any  part  thereof,  remains  for  ten  years  unused  for  railroad 
purposes,  it  shall  be  held  forfeited,  and  shall  revert  to  the  owner  of  the  land,  unless 
at  least  twenty  miles  of  the  road  have  been  completed  by  the  company  during  that 
period,  or  unless  an  average  of  one  thousand  dollars  per  mile  has  been  expended  for 
construction  before  the  expiration  of  said  period  of  ten  years.  (May  5,  1868,  65  v. 
142,  §  6;  April  22,  1898,  93  v.  207.) 

Abandonment  of  easement. 

See  §  3281.  notes. 


§    3415.     MAY  SUE  AND  BE  SUED  WITHOUT  LEAVE  OF  COURT.— When  a 

line  of  railroad,  the  whole  or  any  part  of  which  lies  within  the  limits  of  this  state, 
has  been  placed,  by  order  of  court,  in  the  hands  of  a  receivei*,  who  has  taken  charge 
of  and  is  operating  the  same  for  the  purpose  of  carrying  passengers  and  freight,  and 
doing  such  other  things  as  ordinarily  belong  to  the  running  and  management  of  rail- 
roads, such  receiver  may,  in  his  official  capacity,  sue  or  be  sued  in  the  courts  of  this 
state  without  leave  previously  granted;  provided,  however,  that  no  person  shall  act 
as  such  receiver  unless  he  be  a  resident  citizen  of  this  state.  (March  12,  1872, 
69  v.  31,  §  1.) 


Suits  against  receivers,  effect  of  section. 

This  section  authorizes  suits  to  be  brought 
against  the  receiver  of  a  railroad,  and  the 
same  prosecuted  to  final  judgment  without 
leave  of  court;  in  other  words,  such  suits 
stand  upon  the  same  footing  and  entitle  those 
bringing  them  to  the  same  rights  and  priv- 
ileges as  if  leave  had  been  granted,  and  no 
move.  But  this  section  does  not  authorize  a 
levy  or  sale  of  property  in  possession  of  the 
receiver  without  leave  of  court. —  Crov  v.  Mar- 
shall, 3  0.  C.  C.  489   (1888)  ;  s.  c.  2  C.  D.  280. 

Ditch   proceedings. 

A  receiver  of  a  railroad  company  is  a  com- 
petent party  plaintiff  in  a  suit  to  restrain 
ditch  proceedings  against  the  company,  com- 
menced and  prosecuted  after  his  appointment 
.i-  such  receiver. —  Caldwell  v.  Trustees,  2  0. 
('.('.  10   (18S6);  s.  c,  1  C.  D.  332. 

Property    -wrongfully    in    hands    of    re- 
ceiver. 

If  a  creditor  claims  that  property  is  im- 
properly in  the  hands  of  a  receiver,  he  must 
apply  to  the  court  appointing  the  receiver  to 


release  the  same  so  he  may  levy  upon  it.— 
Croy  v.  Marshall,  3  0.  C.  C.  4S9  (1888)  ;  s.  c, 
2  C*.  D.  280. 

Judgments     against     companies     in    re- 
ceiver's hands. 

Where  a  plaintiff  in  an  action  against  a 
railroad  company,  whose  property  is  then  in 
the  hands  of  a  receiver  (appointed  by  the 
same  court)  to  which  action  such  receiver  is 
not  a  party,  recovers  against  the  company  a 
money  judgment,  the  same  is  not  void  or  in- 
valid on  the  ground  that  the  court,  had  no 
jurisdiction.  Such  judgment  is  valid  as  against 
the  company,  and  operates  as  a  lien  on  its 
lands,  and  may  be  enforced  after  the  discharge 
of  the  receiver. —  Mather  v.  Cincinnati,  etc..  Ry. 
Co.,  :;   0.  C.  C.  284    (1SSS);  s.  c,  2  C.  D.   161. 

Effect  of  section  on  U.  S.  courts. 

This  section  cannot  affect  the  power  or  au- 
thority of  a  federal  court  to  pass  on  a  motion 
for  leave  to  sue  a  receiver  appointed  by  it. — ■ 
Hayes  v.  Columbus,  etc.,  Ry.  Co.,  34  W.  L.  B. 
2    (1895). 


R.A]  LROAD    <   I  »RP(  >B  '. 


289 


Receiver,  Regulations  as  to  —  Purchaser  of  Roads,         3416  3419 


Liability   of   receiver   for  negligence. 

Sec    Meara    v.    Receivers,  20    Oh.    St.     L37 

(18701  j    Potter    v.    Bunnell,  20    Oh.    St.    150 
(1870). 

Powers      of     nonresident     receivers      of 
Ohio  roads. 

sec  Caldwell   v.    Pittshurg,  etc.,   R.    R.  Co., 
33  W.  L.  B.  134  (1894). 

Powers    of    foreign    receivers  —  right    to 
sue   in    Ohio. 

See  Bank  v.  McLeod,  38  Oh.  St.   171   (1882). 


Section   olted. 

Cleveland  : 

0    I     I  l  i      I) 

Receiver   not    agenl    <<i    oomptnj 

•  onsolidated    I 
■  i>      R.  R.  i         L0  W.  L.  B.  42 

Collection  of  taxen  from   reeeivei 

treasurer  v.  D 

Appointment  of  nonresidents. 

See    Bayne  \ .   Br 
L897).     See  J  3248. 


§  3416.  WHERE  ACTION  MAY  BE  BROUGHT,  AND  SERVICE.—  Actions  may 
be  brought  against  the  receiver  of  a  railroad  in  any  county  through  or  into  which  the 
road  is  constructed,  and  service  of  summons  may  be  had  upon  the  receiver,  or  upon  the 
superintendent  of  the  road,  or  upon  any  ticket  or  freight  agent  who  is  in  the  employ- 
ment of  or  acting  for  the  receiver;  but  no  service  made  upon  the  ticket  or  freight 
agent  shall  be  valid,  unless  the  office  or  place  of  business  of  such  agent  is  in  the 
county  where  suit  is  brought.     (March  12,   1872,  69  v.  31,   §  2.) 


Section  cited. 

See   Railroad  Co.   v.   Orme,   1   0.  C.   C.   513 

(1885);   s.  c,  1  C.  D.  285. 


Service  upon  receivers. 
See  §§    1988,   1991,  5044a 


§  3417.  APPLICATION  OF  FUNDS,  AND  LIEN  THEREON.—  The  earnings  of 
a  railroad  in  the  hands  of  a  receiver,  and  all  other  money  which  comes  into  his  hands 
as  such  receiver,  shall  be  applied  first  to  pay  costs  and  expenses  of  the  suit  in  which 
he  was  appointed,  and  the  expenses  of  operating  and  managing  the  road,  including 
all  materials  and  supplies  procured  by  him  therefor,  and  liabilities  incurred  by  him 
in  such  operation  and  management;  and  all  judgments  recovered  against  the  receiver 
of  a  railroad  for  injuries  to  person  or  property,  or  for  wages  of  employes  or  work  done 
or  materials  furnished  while  he  is  operating  or  managing  the  road,  shall  be  a  lien  on 
the  funds  in  his  hands  as  receiver,  but  shall  affect  him  only  in  his  trust  capacity,  and 
not  individually.     (March  12,  1872,  69  v.  31,  §  3.) 


Judgments  against   receivers. 

Satisfaction  on  a  judgment  rendered  againsl 
a  receiver  in  an  action  for  the  recovery  of 
damage  for  personal  injuries  can  only  be  ob- 
tained out  of  the  fund  in  his  hands,  as  may 
be  directed  by  the  court  appointing  him. 
Meara  v.  Receivers,  20  Oh.  St.  137    (1870). 


Riehts  of  state  —  taxes. 

The   state   is   nol    included   in   this 
inn   t he  superiority   of  ii -  cla im   '   i 
not  thereby   affected. —  Treasurer   < 
Oh.  St.  180  (1899). 


§  3418.  WHERE  RECEIVER  MUST  DEPOSIT  MONEY.— When  the  line  of  (a) 
railroad  operated  by  a  receiver  lies  wholly  within  this  state,  all  money  which  comes 
into  the  hands  of  the  receiver,  whether  arising  from  operating  the  road  or  otherwise, 
shall  be  kept  and  deposited  in  such  place  within  this  state  as  the  court  may  direct, 
until  properly  disbursed;  but  if  any  portion  of  the  road  lies  in  another  state,  the 
receiver  shall  be  required  to  deposit  in  this  state  at  least  such  share  of  the  funds  in 
his  hands  as  is  proportioned  to  the  value  of  the  property  of  the  company  within  this 
state.     (March   12,   1872,  69  v.  31,   §  4.) 

§  3419.  HOW  PURCHASER  OF  RAILROAD  MAY  ACQUIRE  FRANCHISE — 
The  purchaser  of  a  railroad,  situate  wholly  or  partly  within  this  state,  which  has  been 
or  may  hereafter  be  sold  pursuant  to  judicial  proceedings,  may  acquire  the  franchise 
to  be  a  corporation  originally  vested  in  the  company  which  held  the  road  prior  to 
such  sale,  by  grant  of  such  company,  under  such  terms  and  conditions  as  may  be 
agreed  upon  by  the  directors  of  the  company,  with  the  consent  of  the  stockholders 

LAW    GOV.    PRIV.    COR. —  IQ. 


2S0 


Private  Corporations  in  Ohio. 


Judicial  Sale,  etc.,   §§  3420-3422. 


owning  two-thirds  of  the  stock;  which  grant  shall  be  in  the  same  form  as  is  required 
by  law  to  convey  real  estate,  and  shall  pass  such  franchise  to  the  persons  or  company 
becoming  the  owner,  by  purchase  as  aforesaid,  of  such  railroad;  but  no  such  grant 
shall  be  made  unless  provision  be  made  for  granting  to  the  stockholders  in  the  orig- 
inal company  stock  in  the  reorganized  company,  upon  equal  terms  with  the  stock- 
holders thereof,  and  as  shall  be  acceptable  to  the  directors  making  such  grant. 
(April  13,   1865,  62  v.  169,  §  1.) 


New  charter  granted. 

The  effect  of  a  transfer  under  this  section 
is  a  surrender  or  abandonment  of  the  old 
charter  by  the  corporators,  and  a  grant  de 
novo  of  a  similar  charter  to  the  so-called 
transferees  or  purchasers. —  Ohio  v.  Sherman, 
22  Oh.  St.  411,  428    (1S72). 

Constitutionality. 

This  section  is  a  general  law  within  the 
meaning  of  article  1,  section  2  of  the  constitu- 
tion.—Ohio  v.  Sherman,  22  Oh.  St.  411  (1872). 

Repeals    and    amendments    of    charters. 

Where  a  special  charter,  not  subject  to  re- 
peal or  amendment,  is  transferred  under  this 
section,  the  new  charter  granted  by  implica- 
tion, being  granted  under  the  present  consti- 
tution, would  be  subject  to  alteration  and 
repeal.— Ohio  v.  Sherman,  22  Oh.  St.  411 
(1872). 

Stockholder's  liability. 

Where  a  special  charter,  providing  for  no 
double  liability  of  stockholders  according  to 
the   present    constitution,   is    transferred,    the 


transferees  do  not  become  a  corporation  or 
do  not  acquire  the  charter  so  attempted  to  be 
transferred  for  the  reason  that  the  legislature 
has  no  power  to  create  a  corporation  without 
provisions  for  at  least  double  liability  of 
stockholders,  and  the  company  accepting  a 
transfer  under  this  section  has  no  power  to 
bind  its  stockholders  to  double  liability  by  the 
act  of  acceptance. —  Ohio  v.  Sherman,  22  Oh. 
St.  411   (1S72). 

Legality   of   corporation,    estoppel. 

In  an  action  brought  to  determine  the 
priority  of  liens  on,  and  for  the  sale  of,  a  rail- 
road, neither  lienholders  nor  general  creditors 
can  question  the  legality  of  the  incorporation 
of  the  railway  company,  or  the  validity  of 
mortgages  of  such  company  upon  the  ground 
of  such  illegality. —  Hatry  v.  Painesville,  etc., 
By.  Co.,  1  O.  C.  C.  426  (1S86);  s.  c,  1  C.  D. 
238. 

Charter    cannot    be    sold    in    absence    of 
statute. 

See  Atkinson  v.  Marietta,  etc.,  R.  R.  Co.,  15 
Oh.  St.  21    (1864). 


§  3420.  CERTAIN  ROADS  MAY  BE  SOLD  AT  JUDICIAL  SALE.—  The  real  and 
personal  property,  road-bed,  right  of  way,  fixtures,  and  franchises  of  a  company  in 
this  state  which  has  not  completed,  nor  conveyed  by  deed  of  trust,  or  mortgage,  any 
part  of  its  road,  and  which  is  insolvent,  and  whose  property  is  in  the  hands  of  a 
receiver  appointed  by  a  court  of  competent  jurisdiction,  may  be  sold  at  judicial  sale; 
and  the  title  thereto,  with  all  the  rights,  liberties,  faculties,  and  franchises,  shall  pass 
by  such  sale,  and  vest  in  the  purchaser  thereof,  as  fully  as  the  same  had  been  pos- 
sessed, exercised,  and  enjoyed  by  such  company.     (May  14,  1868,  65  v.   192,  §  1.) 

§  3421.  THE  RECEIVER  MUST  PETITION  THEREFOR.—  Before  any  such 
sale  shall  be  ordered  the  receiver  shall  file  in  such  court  his  petition  therefor,  in 
which  he  shall  set  forth  the  names  of  the  creditors  of  the  company,  with  the  sums  due 
to  each,  as  nearly  as  can  be  ascertained,  a  statement  of  its  assets,  exclusive  of  its 
road-bed,  rights  of  way,  and  franchises,  and  a  pertinent  description,  in  general  terms, 
of  the  road-bed,  right  of  way,  and  property  so  sought  to  be  sold,  and  shall  cause  notice 
thereof  to  be  published,  for  six  consecutive  weeks,  in  some  newspaper  printed  and  of 
general  circulation  in  each  of  the  counties  in  which  any  part  of  the  road-bed  is  situ- 
ate; and  any  creditor  shall,  at  any  time  before  the  distribution  of  the  proceeds  of 
the  sale,  have  the  right  to  appear  and  set  up  his  claim  by  answer,  and  have  it  deter- 
mined by  the  court,  if  it  is  omitted  from  or  inaccurately  stated  in  the  petition.  (May 
14,  1868,  65  v.  192,  §  2.) 

§  3422.  ORDER  FOR  APPRAISEMENT  OF  ROAD.—  The  court,  on  proof  of  the 
publication  of  such  notice,  and  on  being  satisfied  that  a  sale  is  necessary  for  the  pay- 
ment of  the  indebtedness  of  the  company,  shall  order  the  sale  of  such  road,  road-bedr 


Railro  \d  (  !orpi 


291 


Judicial  Sale,   etc.,    §jj   31^: 


rights  of  way,  property,  and  franchises,  upon  such  terms  of 
deem  proper,  and  shall  issue  its  order  to  the  receiver,  comman-. 

the  same  to  be  appraised  by  commissioners,  to  be  selected  by  the  court,  skilk-d  in  the 
construction  and  value  of  such  road-beds  as  they  may  be  called  upon  to 
ing  the  qualifications  of  a  freeholder,  not  less  than  three  in  numb) 
of  at  least  one  from  each  county  in  which  any  part  of  the  road-bed   \a  ill 
such  proceedings  shall  be  had  under  such  order  as  are  provided  by  law  in  case  of  sales 
of  real  estate  made  by  order  of  court  in  other  cases,  so  far  as  the  same  may  be  appli- 
cable.    (May  14,  1868,  65  v.  192,  §  3.) 

§  3423.  NOTICE  OF  SALE  TO  BE  PUBLISHED.-  Before  any  such  sale  shall  be 
made,  notice  thereof  shall  be  given  by  publication,  for  six  consecutive  weeks,  in  some 
newspaper  published  and  of  general  circulation  in  each  of  the  counties  through  or  in 
which  such  road  is  located,  and  also  in  some  newspaper  published  and  of  general  cir- 
culation in  each  of  the  cities  of  New  York  and  Cincinnati,  for  at  least  thirty  days 
prior  to  the  day  of  sale;  but  the  sale  shall  not  be  made  for  less  than  two-thirds  of  the 
appraised  value  of  the  property  and  rights,  unless,  upon  the  same  having  been  twice 
offered  and  not  sold  the  court,  in  its  discretion,  order  a  reappraisement.  (May  14, 
1868,  65  v.   192,  §  4.) 


Deposits  with   bids. 

Deposits  filed  with  bids  should  be  returned 
to   the   bidder   in   case   he   does   not   buv   the 


property. —  Feike  v.  <  inciimal 

3  O.  C.  C.  72  (1887);  s.  c,  2  C.  D.  41;  a 

VV.  L.  B.  75. 


§  3424.  CONFIRMATION  OF  SALE,  AND  DEED.— When  a  sale  is  made,  and 
reported  to  the  court,  if  the  court  is  satisfied  that  the  same  was  fairly  and  properly 
conducted,  in  all  respects,  according  to  law  and  the  order  of  the  court,  it  shall  cause 
the  sale  to  be  confirmed,  and  shall  order  the  receiver  to  execute  and  deliver  to  the 
purchaser  a  deed  of  conveyance  for  the  road,  road-bed,  rights  of  way,  real  estate,  fix- 
tures, and  franchises  so  sold.     (May  14,  1868.  65  v.   192,  g  5.) 

§  3425.  HOW  PROCEEDS  OF  SALE  DISTRIBUTED.—  The  proceeds  of  the  sale, 
after  paying  the  costs  and  expenses  thereof  and  the  unpaid  expenses  of  the  trust 
against  the  company,  shall  be  distributed  pro  rata  among  all  the  creditors  of  the 
company.     (May  14,  1868,  65  v.  192,  §  6.) 

§  3426.  WHO  MAY  PURCHASE  SUCH  PROPERTY.— A  company  organized 
under  the  laws  of  this  state  may  become  the  purchaser  of  such  property;  and  any 
number  of  persons,  not  less  than  five  may  become  the  purchasers  of  such  road,  road- 
bed, rights  of  way,  property,  and  franchises,  at  such  sale,  and  upon  filing  a  tran- 
script of  the  decree  of  confirmation  in  the  office  of  the  secretary  of  state,  shall  become 
a  corporation  of  this  state,  amenable  to  its  process,  and,  with  perpetual  succession  by 
such  name  as  they  may  assume  to  themselves,  subject  to  the  laws  of  this  state  regu- 
lating corporations,  and  shall  hold  the  property,  rights,  and  franchises  so  purchased, 
free  and  discharged  from  all  liability  for  the  debts  of  the  original  corporation.  (May 
14,  1868,  65  v.   192,  §  7.) 


§  3426a.  PURCHASER  OF  RAILROAD  AT  JUDICIAL  SALE  MAY  SELL  SAME; 
GRANT  TO  BE  RECORDED.— The  purchaser  or  purchasers  of  the  real  and  personal 
property,  road-beds,  rights  of  way,  fixtures  and  franchises  of  any  railroad  company 
in  the  state  of  Ohio,  and  situated  wholly  or  in  part  in  this  state  that  have  been  or 
shall  hereafter  be  sold  pursuant  to  judicial  order,  judgment,  or  decree,  and  which  sale 
has  been  confirmed  by  the  court  making  the  order  of  sale,  may  sell  the  same,  or  any 
portion  thereof;  and  the  title  thereto,  with  all  the   rights,   liberties,  faculties,   and 


292  Private  Corporations  in  Ohio. 


Judicial  Sale,  etc.— Railroad  Police,  S§  3426b,  3427. 


franchises  shall  pass  by  such  sale  and  vest  in  the  purchaser  or  purchasers  thereof,  as 
fully  as  if  the  same  had  been  possessed,  exercised  and  enjoyed  by  such  railroad  com- 
pany, and  which  passed  by  said  judicial  sale;  which  grant,  being  in  the  same  form 
as  by  law  required  to  pass  real  estate,  shall  be  recorded  in  the  record  of  deeds  of  the 
county  or  counties  in  which  said  real  or  personal  property  is  situated,  and  said  rights 
and  franchises  are  or  may  be  exercised.     (March  11,  1880,  77  v.  60.) 

§  3426b.  RAILROAD  COMPANY,  AND  ANY  NUMBER  OF  PERSONS,  MAY 
BECOME  PURCHASERS;  PURCHASERS  MAY  BECOME  INCORPORATED,  AND 
MAY  PAY  IN  STOCKS  AND  BONDS. —  That  any  railroad  company  organized  or 
existing  under  the  laws  of  this  state  may  become  the  purchasers  of  such  property,  as 
provided  in  the  first  section  (3426a)  of  this  act,  and  any  number  of  persons  may 
become  the  purchasers  of  such  road,  road-beds,  rights  of  way,  property  and  franchises, 
as  provided  herein,  either  directly  at  such  judicial  sale  or  by  grant  from  the  pur- 
chasers at  such  sale,  whether  the  same  shall  have  been  heretofore  or  may  hereafter 
be  made;  and  upon  filing  a  copy  of  said  deed  or  grant  in  the  office  of  the  secretary  of 
state  with  articles  of  incorporation  executed  in  accordance  with  sections  thirty-two 
hundred  and  thirty-six  and  thirty-two  hundred  and  thirty-seven  of  the  Revised  Stat- 
utes of  Ohio,  they  and  such  persons  as  they  may  associate  with  them,  not  less  than 
five  in  number,  shall  become  a  corporation,  with  perpetual  succession,  by  such  name 
as  they  may  assume  to  themselves,  with  full  capacity  to  maintain  and  operate  such 
railroads,  whether  located  wholly  within  this  state,  or  partly  within  this  state  and 
partly  within  another  state  or  states,  and  with  authority  to  provide  for  the  purchase 
price  of  the  railroad  and  other  property  so  purchased,  by  the  issue  of  its  capital  stock, 
preferred  or  common,  and  bonds  secured  by  mortgage  or  otherwise,  bearing  interest 
at  a  rate  not  exceeding  seven  per  cent,  per  annum,  and  stock  and  bonds  heretofore  or 
hereafter  issued  as  such  purchase  price,  in  whatever  amounts  the  incorporators,  in 
good  faith,  may  have  agreed  on,  shall  be  valid  and  taken  as  fully  paid  for  by  the 
transfer  to  said  corporation  of  such  railroad  and  property,  and  also  by  such  issue  of 
stock  or  bonds,  to  raise  the  necessary  means  suitable  to  improve  such  railroad  prop- 
erty and  equipment  for  the  uses  and  purposes  for  which  it  is  employed;  and  in  the 
operation  and  maintenance  of  such  railroad,  the  said  corporation  shall  be  entitled  to 
all  the  rights,  and  be  subject  to  all  the  obligations  and  restrictions  imposed  upon 
railroad  companies  by  the  general  laws  of  this  state.  (April  24,  1890,  87  v.  270; 
March  11,  1880,  77  v.  60.) 

§  3427.  APPOINTMENT  OF  RAILROAD  POLICE;  THEIR  QUALIFICATIONS, 
TERM  OF  OFFICE,  AND  REVOCATION  OF  COMMISSION.—  The  governor,  upon 
the  application  of  a  company  owning  or  using  any  railroad  in  this  state,  shall  appoint 
and  commission  such  persons  as  the  company  may  designate,  or  as  many  thereof  as 
he  may  deem  proper,  to  act  as  policemen  for  and  upon  the  premises  of  such  railroad 
or  elsewhere,  when  directly  in  the  discharge  of  their  duties  for  such  railroad;  and  all 
policemen  so  appointed  shall  be  citizens  of  the  state  of  Ohio,  and  men  of  good  char- 
acter, and  said  policemen  shall  hold  their  office  for  three  years,  unless  their  commis- 
sions be  revoked  by  the  governor  for  good  cause  shown,  or  by  the  railroad  company  as 
provided  by  section  three  thousand  four  hundred  and  thirty-two  of  the  Revised  Stat- 
utes, and  all  commissions  heretofore  issued  by  the  governor  of  this  state,  under  and 
by  virtue  of  section  three  thousand  four  hundred  and  twenty-seven  of  the  Revised 
Statutes  of  Ohio,  as  passed  March  18,  1867,  shall  expire,  and  the  authority  under  and 
by  virtue  of  the  same  shall  be  revoked  on  and  after  the  first  day  of  June,  1885. 
(February  18,  1885,  82  v.  51;  R.  S.  1880;  March  18,  1867,  64  v.  60,  §§  1,  2.) 

Police    regulations  —  constitutionality. 

See  Raihvav  Co.  v.  Railroad  Co.,  30  Oh.  St.  604  (1877). 


Railroad  (  Iorpob  \\  ions.  293 


Railroad  Police,  etc.,   SS  3428  3434. 


§  3428.  OATH;  RECORD  OF  COMMISSION;  POWERS  AND  LIABILITIES  OF 
SUCH  POLICE. —  Each  policeman  so  appointed  shall,  before  enteria  the  duties 

of  his  office,  take  and  subscribe  an  oath  of  office,  which  shall  be  endorsed  upon 
commission;  a  certified  copy  of  such  commission,  with  the  oath,  sh.-ill  be  record' 
the  office  of  the  clerk  of  the  court  of  common  pleas  in  every  county  through   01 
which  the  railroad  for  which  such  policeman  is  appointed   runs,   and   for  which 
intended  he  shall  act;  and  policemen  so  appointed  and  commissioned   shall  severally 
possess  and  exercise  all  the  powers,  and  be  subject  to  all  the  liabilities  of  polio 
of  cities  of  the  first  class,  in  the  several  counties  in  which  they  are  authorized  to  act 
while  in  the  discharge  of  their  duties  for  which  they  are  appointed.     (February    18, 
1885,  82  v.  51;  R.  S.  1880;  March  18,  1867,  64  v.  60,  §  3.) 

§  3429.  POWER  OF  SUCH  POLICE  TO  ENFORCE  REGULATIONS  OF  ROAD 
AND  MAKE  ARRESTS. —  A  company  which  avails  itself  of  the  provisions  of  the 
two  preceding  sections  may  make  needful  regulations  to  promote  the  public  conven- 
ience and  safety  in  and  about  its  depots,  stations,  and  grounds,  not  inconsistent  with 
the  laws  of  the  state,  and  cause  the  same  to  be  printed,  and  posted  conspicuously 
upon  its  depots  or  station  buildings,  and  such  policemen  may  enforce  and  compel 
obedience  to  the  same;  and  the  keeper  of  jails,  lock-ups,  or  station-houses  in  any  of 
such  counties  shall  receive  all  persons  arrested  by  such  policemen,  for  the  commis- 
sion of  any  offense  against  such  regulations  or  the  laws  of  the  state,  upon  or  along 
the  railroad  or  premises  of  any  such  company  to  be  dealt  with  according  to  law. 
(March  18,  1867,  64  v.  60,  §  3.) 

§  3430.  SUCH  POLICE  TO  WEAR  BADGES,  WHEN.—  Each  policeman  so 
appointed  and  commissioned,  shall  wear  in  plain  view,  when  on  duty,  as  heretofore 
specified,  a  metallic  shield  with  the  word  "  Police,"  and  the  name  of  the  railroad  for 
which  he  is  appointed  inscribed  thereon,  except  while  acting  as  detective  in  the  dis- 
charge of  his  duties  for  such  railroad.  (February  18,  1885,  82  v.  51;  R.  S.  1880; 
March  18,  1867,  64  v.  60,  §  4.) 

§  3431.  COMPENSATION  OF  POLICE. —  The  compensation  of  such  policemen 
shall  be  paid  by  the  company  for  which  they  are  respectively  appointed,  and  at  such 
rates  as  may  be  agreed  upon  by  the  parties.     (March  18,   1867,  64  v.  60.  i   5.) 

§  3432.  WHEN  POWERS  CEASE. —  When  a  company  no  longer  requires  tho 
services  of  a  policeman  so  appointed,  it  may  file  a  notice  to  that  effect,  under  its  cor- 
porate seal,  attested  by  its  secretary,  in  the  several  offices  where  the  commission  of 
such  policeman  is  recorded,  which  shall  be  noted  by  the  clerk  upon  the  margin  of  the 
record  where  the  commission  is  recorded,  and  thereupon  the  power  of  such  policeman 
shall  cease  and  determine.     (March  18,  1867,  64  v.  60,  g  6.) 

§  3433.  WHEN  A  PASSENGER  CONDUCTOR  IS  A  POLICEMAN.— The  con- 
ductor of  every  train  carrying  passengers  within  this  state  is  hereby  invested  with 
all  the  powers,  duties,  and  responsibilities  of  police  officers,  while  on  duty  on  his 
train.     (April  11,  1876,  73  v.  166,  §   1.) 

§  3434.  WHEN  CONDUCTOR  MAY  EJECT  A  PASSENGER.—  When  a  passen- 
ger is  guilty  of  disorderly  conduct,  or  uses  any  obscene  language,  or  plays  any  game 
of  cards  or  chance  for  money  or  any  other  thing  of  value,  upon  any  passenger  train. 
the  conductor  of  such  train  shall  stop  his  train  at  the  place  where  such  offense  is 
committed,  or  at  the  next  stopping  place  of  such  train,  and  eject  such  passenger  from 
the  train,  using  only  such  force  as  may  be  necessary  to  accomplish  such  removal: 
and  the  conductor  may  command  the  assistance  of  the  employes  of  the  company  and 
of  the  passengers  on  such  train  to  assist  in  such  removal:  but  before  doing  so  he 


294 


Private  Corporations  in  Ohio. 


Railroad  Police,  etc.,  §§  3435,  3436. 


shall  tender  to  such  passenger  such  proportion  of  the  fare  he  paid  as  the  distance  he 
then  is  from  the  place  to  which  he  has  paid  fare  bears  to  the  whole  distance  for  which 
his  fare  is  paid.     (April  11,  1876,  73  v.   166,  §  2.) 

Place  of  removal. 

The  expulsion  of  a  person  may  be  at  a 
place  other  than  a  railroad  depot,  or  usual 
stopping  place,  provided  care  is  taken  not  to 
expose  him  to  serious  injury  or  danger. — 
Railroad  Co.  v.  Skillman.  39  Oh.  St.  445  (1883). 


Damages. 

Where  a  person  is  wrongfully  ejected,  it  is 
error  to  charge  that  he  can  only  recover  the 
price  of  the  ticket,  and  for  the  labor  of  walk- 
ing to  the  place  of  destination.  The  jury  may 
in  such  a  case  take  into  consideration  the  place 
where  the  plaintiff  was  left,  the  circumstances 
under  which  it  was  done,  the  humiliation,  dis- 
grace, and  injury  to  his  feelings,  in  having  the 
train  stopped  and  being  compelled  to  leave  the 
coach  and  train  in  a  public  manner. —  Lake 
Shore,  etc.,  Ey.  Co.  v.  Teed,  14  0.  C.  C.  356 
(1895);   s.  c,  *6  C.  D.  339. 

Exemplary  damages. 

A  corporation  by  the  malicious  misconduct 
of  its  agents  or  servants  acting  within  the 
scope  of  their  employment,  may  render  itself 
liable  to  exemplary  or  punitive  damages;  but 
this  doctrine  being  capable  of  great  practical 
abuse,  the  giving  it  in  charge  to  the  jury  in 
a  case  clearly  not  warranting  its  application, 
tends  to  mislead  them;  and  where,  in  such  a 
case,  a  verdict  for  damages  is  obviously  ex- 
orbitant, it  is  error  in  the  court  to  refuse  to 
set   it  aside,  and  award  a  new  trial. —  Pitts- 


burg, etc.,  E.  E.  Co.  v.  Slusser,  19  Oh.  St.  157 
(1869).  See  Atlantic,  etc.,  Ey.  Co.  v.  Dunn, 
19  Oh.  St.  170   (1869). 

"When  force  amounts  to  wanton  assault. 
When  the  force  used  to  eject  amounts  to 
wanton  assault,  the  fact  as  to  whether  the 
plaintiff  was  rightfully  or  wrongfully  upon 
the  train  is  not  an  element  in  the  question  of 
mere  recovery. —  Toledo,  etc.,  Ey.  Co.  v. 
Marsh,  17  0.  C.  C.  379  (1898);  s.  c,  9  C.  D. 
548;  Cincinnati,  etc.,  E.  E.  Co.  v.  Boyer,  18  0. 
C.  C.  327   (1897);  s.  c,  10  C.  D.   199. 

■When  action  in  tort. 

Where  one  is  wrongfully  ejected  from  a 
railway  train,  even  in  the  absence  of  use  of 
excessive  force  by  the  servants  of  the  railroad 
company,  and  whether  or  not  the  relation  of 
the  parties  originated  in  contract,  he  may 
seek  his  remedy  as  for  tort. —  Toledo,  etc., 
Ey.  Co.  v.  Marsh,  17  0.  C.  C.  379  (1898)  ;  s.  c, 
9  C.  D.  548.  See  Pittsburg,  etc.,  Ey.  Co.  v. 
Eeynolds,  55  Oh.  St.  370  (1896). 

Car  in  motion  —  question  of  negligence. 

AVhether  it  is  due  and  proper  care  to  at- 
tempt to  remove  a  person  from  a  car.  while 
the  same  is  in  motion,  is  a  question  of  fact  for 
the  jury,  and  not  of  law  for  the  court. — 
Healev  v.  City,  etc.,  E.  E.  Co.,  28  Oh.  St.  23 
(1875).     See   §  3374,  notes. 


§  3435.  WHEN  HE  MAY  ARREST  A  PASSENGER.—  When  a  passenger  is 
guilty  of  any  offense  upon  a  passenger  train,  the  conductor  of  such  train  may  arrest 
him  and  take  him  before  any  magistrate  having  cognizance  of  such  offense,  in  any 
county  in  this  state  in  which  such  train  runs,  and  file  an  affidavit  before  such  magis- 
trate, charging  him  with  such  offense;  but  in  no  case  shall  the  liability  of  a  railroad 
company  for  damages  caused  by  the  conduct  of  its  conductor  be  affected  by  the  pro- 
visions of  this  and  the  next  preceding  section.     (April  11,  1876,  73  v.  166,  §  3.) 


§  3436.  PENALTIES  AGAINST  CONDUCTORS  FOR  VIOLATIONS  OF  CER- 
TAIN SECTIONS. —  A  conductor  having  charge  of  a  passenger  train  within  this 
state,  who  willfully  neglects  his  duty  as  required  by  the  two  preceding  sections,  or 
fails  to  use  all  the  means  in  his  power  to  carry  out  the  requirements  of  such  sections, 
shall  be  deemed  guilty  of  negligence  of  official  duty,  and  on  conviction  thereof,  before 
any  court  having  competent  jurisdiction,  shall  be  fined  not  less  than  five  nor  more 
than  twenty-five  dollars.     (April  11,  1876,  73  v.  166,  §  4.) 


t 


PART    V. 

STREET  RAILROAD  CORPORATIONS. 

|3437.        Where  street  railway  may  be  constructed. 

13439.        Written  consent  of  owners  of  more  than  one-hall  ol   feel    fronl   i 

§  3439a.       When  consents  cannot  be  withdrawn. 

§3440.        When  property  may  be  appropriated  for  Buch  rai  Coledo,  Cuyahof 

§3441.        The  authority  controlling  the  public  road   tnusl    consent. 

§3442.        Form  of  oath  in  appropriation  proceedings. 

§3443.         Council,  etc.,  may  fix  terms  and  conditions. 

§  3443a.       Watchman  at  street  crossings,  intersection   and  corners. 

§3443-1.     Street  railroad  route  in  Cincinnati  made  valid. 

§3443-2.     Authorizing  municipal  authorities  to  grant   permission  to  extend  ti  fare 

must  not  be  increased. 
§  3443-3.  Screens  for  mortorman. 
§  3443-4.     Penalty;  duty  of  prosecuting  attorney. 

f  3443-5.     Repair  of  crossings  at  intersecting  street  railroads;  stopping  of  cars  al  crossing. 
§3443-0.     Full  stop  when  approaching  intersecting  .-team  railway,  etc. 
§  3443-7.     Penalties. 

%  3443-8.     Construction,  etc.,  of  street  railroads  outside  of  municipalities. 
§3443-0.     Occupancy  and  use  of  public  highways. 
§  3443-10.  Interurban  roads  given  right  of  eminent  domain. 
§  3443-11.  Leases,  purchases,  and  traffic  arrangements. 
§  3443-12.  Consolidation. 
$  3443-13.  Regulations  and  powers. 

§3443-14.  Street  railroad  in  Mansfield  may  operate  a  light  and  power  plant. 
§  3444.         Powers  of  inclined  plane  railway  companies. 
§  3445.         How  street    crossings     to   be  made. 

§  3437.  WHERE  STREET  RAILWAYS  MAY  BE  CONSTRUCTED.—  Street  rail- 
ways, with,  single  or  double  tracks,  side-tracks,  and  turn-outs,  may  be  constructed  or 
extended  within  or  without,  or  partly  within  and  partly  without,  any  municipal  cor- 
poration or  unincorporated  village;  and  offices,  depots,  and  other  necessary  buildings 
for  such  railways  may  also  be  constructed.     (February  10,   1870.  67  v.   10.  j   1.) 


Other   statutes. 

See  §  2502  et  seq. 

What  provisions  of  railroad  act  appli- 
cable to   street  railroads. 

Nothing  in  §  3300a  or  in  the  sections  of  the 
Revised  Statutes  relating-  to  railroad  com- 
panies, prior  to  §  3437.  other  than  in  §§  3287, 
3288,  and  3280,  shall  be  construed  as  affecting 
street  railroads.     See  §  3300a. 

Street    railroad    company    may    borrow 
money. 

See  §§  3287,  3288,  and  32S9. 

Power  to  mortgage  property. 

See  Louisville  Trust  Co.  v.  Cincinnati,  etc., 
Ry.  Co.,  91  Fed.  699   (1897). 


■What  determines  character  of  road. 

When  a  road  is  laid  in  a  Btreet,  <>n  the  sur- 
face of  the  street,  because  it   i-  a  Btreet,  and 
1,,  facilitate  the  use  of  the  streel  by  the  pub- 
lic, it  i-  a  streel  railroad,  whatever  the  • 
used  to  propel  ear-  over  it.     It  i-  the  i 
of  the  use,  noi  the  motive  power,  which 
mines  whether  a  road  belongs  to  "t>>-  cl 
1  he  other,  and  a  change  from  hors<    : 
electric   or  cable  power  does  ti"t   chang< 
character  of  the  road  and  mal 
a    streel    railroad. —  Clemen!   v.  ti,   16 

W.  L.  B.  355     1886       -  I  tolumbus 

Rv  (  o  .  28  W.  L.  B.  172    1892    :  Pelton  v 
Cleveland    R.    R.   Co.,   22   W.    1 
Sanfleel  v.  Toledo,  10  O.  C.  I     I 

!).   711  :    Simmons  v 
535  (1890);  s.  c.  4  C.  D.  CO:  Oviatt  v.  Akron, 


[2951 


296 


Private  Corporations  in  Ohio. 


Grants  for  Railways,   §   3437. 


etc.,  R.  R.  Co.,  2  N.  P.  84  (1895)  ;  s.  c,  3  Dec. 
2-">2:  Harrison  v.  Mt.  Auburn,  etc.,  Ry.  Co.,  17 
W.   L.  B.  265    (1887). 

Power   to   make   grant. 

Authority  to  lay  down  the  necessary  struc- 
ture for  a' street  railway,  in  a  common  high- 
way or  street,  and  to  run  cars  thereon  for  the 
carriage  of  passengers  for  hire,  may  be  law- 
fully granted  to  a  company  incorporated  for 
that  purpose,  when  no  private  right  of  ad- 
joining landowners  is  thereby  impaired,  but 
the  property  rights  of  such  landowners  cannot 
be  impaired  without  first  making  compensa- 
tion.—  Cincinnati,  etc..  Ry.  Co.  v.  Cummins- 
ville,  14  Oh.  St.  523  (1863).  See  Cincinnati, 
etc.,  Ry.  Co.  v.  Snell,  54  Oh.  St.  206   (1S96). 

Insulation   of  wires. 

The  act  of  March  12,  1886,  S3  v.  143,  does 
not  apply  to  the  use  of  wires  in  the  streets  of 
a  city  for  conducting  electricity  to  operate 
street  railway  cars. —  Simmons  v.  Toledo,  5 
O.  C.  C.  124  ('1889)  ;  s.  c,  3  C.  D.  64. 

Right  to  use  ground  circuit. 

A  telephone  company  does  not  obtain  an  ex- 
clusive right  to  use  a  ground  circuit  by  reason 
of  having  its  poles,  wires,  etc.,  installed  first 
or  before  a  street  railroad  company  makes 
use  of  a 'ground  circuit  which  interferes  with 
the  telephone  business. —  Railway  Co.  v 
Telegraph  Co.,  48  Oh.  St.  390  (1891). 

Electrolysis  —  liability  —  remedy. 

See  Dayton  v.  City  Ry.  Co.,  12  Dec.  258 
(1902). 

Power  to   carry   freight. 

A  company  organized  under  the  general  law 
for  the  purpose  of  operating  a  street  railway 
has,  in  the  absence  of  a  statute  prescribing  its 
power,  corporate  power  to  carry  freight  as 
well  as  passengers. —  State  ex  rel.  v.  Dayton 
Traction  Co..  18  0.  C.  C.  490  (1899);  s.  c.  10 
Dec.  212:  affirmed  by  Supreme  Court  March. 
1901,  45  W.  L.  B.  225. 

A      steam     railroad     is     an      additional 
burden. 

See  Lawrence  R.  R.  Co.  v.  Williams.  35  Oh. 
St.  168  (1878);  Cincinnati,  etc.,  Ry.  Co.  v. 
Cumminsville,  14  Oh.  St.  523  (1863):  Taphorn 
V.  Cincinnati,  etc.,  R.  R.  Co.,  8  Am.  L.  R.  490 

(1880). 

Foreclosure,    subrogation. 

See  Mill  Creek,  etc.,  Ry.  Co.  v.  Carthage,  18 
O.  C.  C.  216  (1899). 

Nuisance  —  laying  tracks  without  grant. 

The  placing  of  tracks  in  a  highway,  without 
authority,  is  generally  held  to  constitute  a 
nuisance,  and  it  is  also  generally  held  that  the 
right  to  complain  rests  solely  with  the  public, 
and  not  with  any  individual,  unless  lie  suffers 
a  special  injury,  and  abutting  owners  do  not. 
in  contemplation  of  law,  from  the  mere  fact 


that  they  are  abutters  suffer  special  injury. — 
See   Glid'den   v.   Cincinnati,    30   W.   L.   B.   213 

(1893). 

Power  of  commissioners  to  grant  fran- 
chise in  hamlet. 

The  county  commissioners  have  no  power  to 
grant  a  franchise  to  a  street  railway  company 
over  the  streets  and  roads  in  a  1  amlet,  and 
cannot  maintain  an  action  to  enjoin  the  con- 
struction of  the  road  in  violation  of  the  terms 
thereof.  The  trustees  of  the  hamlet  have 
jurisdiction  by  virtue  of  §  1651. —  Verera  v. 
A.  B.  &  C.  R.'R.  Co.,  11  C.  D.  664  (1896). 

A  grant  is  a  contract  within  the  mean- 
ing of  §   1777. 

Contracts  made  by  the  council  granting  to 
street  railroad  companies  easements  in  the 
streets  of  the  city,  are  contracts  made  in  be- 
half of  the  city  which  may  be  attacked  under 
§  1777  et  seq. —  Cincinnati,  etc.,  R.  R.  Co.  v. 
Smith,  29  Oh.  St.  291  (1876). 

Exclusive    rights   cannot    be   granted. 

Municipal  corporations  have  no  power  to 
grant  an  exclusive  right  to  any  street  railway 
company  to  use  the  streets  of  the  municipality 
for  railway  purposes. —  Toledo,  etc.,  Ry.  Co. 
v.  Toledo,  etc.,  Ry.  Co.,  6  0.  C.  C.  362  (1892)  ; 
s.  c,  3  C.  D.  493;  Kinsman  Street  R.  R.  Co.  v. 
Broadway  Street  R.  R.  Co.,  36  Oh.  St.  239 
(1880):  Cincinnati  Street  R.  R.  Co.  v.  Smith, 
29  Oh.  St.  291   (1S76). 

Grant   strictly   construed. 

A  grant  to  a  street  railway  of  the  right  to 
construct  and  operate  a  street  railroad  is  to 
be  strictly  construed  against  the  company  and 
in  favor  of  the  city.  The  company  can  claim 
only  such  rights  and  privileges  as  are  con- 
ferred by  express  words  or  by  necessary  im- 
plication's. Words  of  general  description  fol- 
lowing words  of  particular  description  are  to 
be  restricted  in  meaning  to  objects  of  like 
kind  and  use  with  those  specified.  The  words 
"  other  appliances  "  in  an  ordinance  granting 
the  right  to  construct  a  street  railroad  and 
"all  necessary  side-tracks. curves, and  switches 
and  cither  appliances  for  the  proper  and  suc- 
cessful operation  of  the  road,"  must  be  re- 
stricted in  meaning  to  appliances  of  the  kind 
and  use  as  side-tracks,  curves,  and  switches, 
and  would  not  include  a  house  in  the  middle 
of  a  street  to  be  used  as  a  shelter  for  pas- 
sengers.—  Hamilton,  etc..  Transit  Co.  v.  Ham- 
ilton. 1  N.  P.  366  (1894)  ;  s.  c,  4  Dec.  10. 

Acceptance  of  grant  constitutes  con- 
Under  §§  2501,  2502,  3438,  and  3439,  the  ac- 
ceptance of  a  grant  made  by  a  city  council 
or  by  county  commissioners  constitutes  a  con- 
tract,—State  ex  rel.  v.  Cleveland,  etc.,  Ry. 
Co.,  15  O.  C.  C.  200  (1897);  s.  c,  8  C.  D.  474. 

Grant  to  trustee. 

A  grant  is  not  rendered  invalid  by  reason  of 
the  fact  that  the  grantee  is  designated  in  the 


Street  Railroad  i  orporations. 


297 


Grants  for  Railways,    ;    3437. 


ordinance   as    a   "trustee."      Simmons    v.   To 
ledo,  5  0.  C.  C.  124   i  L889)  ;  s.  c,  3  CD.  64. 

When   part    of   route    has   not   necessary 

consents,  rights. 

Where  a  portion  of  a  streel  railway  route 
fails  for  lark  of  proper  consents,  the  citj  maj 
make  a  new  grant  as  to  thai  portion  of  the 
route,  when  the  necessary  consents  have  been 
obtained;  and  such  grant  is  valid  under  the 
original  application,  notice,  and  bids.  San- 
fleet  v.  Toledo,  10  0.  C.  C.  4G0  (1893)  ;  s.  c,  8 
C.  D.  711. 

Grant  of   only  part   of   application. 

The  grant  by  a  city  council  of  the  righl  to 
construct  and  operate  a  street  railway  is  nol 
necessarily  invalid  by  reason  of  its  covering 
only  a  part  of  the  route  specified  in  the  origi- 
nal application. —  Simmons  v.  Toledo,  5  1 1.  C. 
('.   124  (1889);  s.  c,  3  C.  D.  64. 

Grant  of  use  of  park  for  street  railway 
purposes. 

See  Mathers  v.  Cincinnati,  3  W.  L.  B.  709 
(1878);  Cleveland,  etc..  Ry.  Co.  v.  Barriss,  33 
W.  L.  B.  314   (1S95). 

Effect    of    section    on    rights    of    county 
commissioners. 

An  ordinance  passed  by  the  council  of  a  city 
only  permits  the  company  to  extend  its  rail- 
way beyond  the  limits  of  the  corporation,  the 
control  of  the  county  commissioners  over 
the  state  road  is  not  affected  thereby,  nor  the 
rights  of  abutting  landowners  extinguished; 
and  such  city  ordinance  is  no  defense  to  an 
action  by  the  commissioners  to  recover  dam- 
ages for  an  injury  to  said  road  caused  by  the 
company. —  Commissioners  v.  Citizens,  etc.. 
Co.,  9  6.  C.  C.  183  (1895)  ;  s.  c,  G  C.  D.  290; 
s.  c,  31  W.  L.  B.  103. 

Bridge  in  city  built  by  county,  right  to 
use. 

See  State  ex  rel.  v.  Cincinnati,  etc.,  Ry.  Co., 
19  O.  C.  C.  79   (1899). 

Joint  use   of  tracks  —  power  of  council. 

The  council  of  a  municipal  corporation,  in 
the  exercise  of  its  discretion,  and  acting  in 
good  faith,  may  grant  to  one  street  railway 
company  the  right  to  use.  to  a  limited  extent, 
the  tracks  of  another  company,  on  provision 
being  made  for  the  payment  of  reasonable 
compensation  for  such  use.  But  the  council 
possesses  no  power  to  take  from  one  company 
a  portion  of  its  tracks,  or  railway  system,  and 
hand  it  over,  absolutely  to  another  company 
to  the  exclusion  of  the' former.— Toledo,  etc., 
Ry.  Co.  v.  Toledo,  etc..  Ry.  Co.,  6  O.  C.  C.  362 
(1892);  s.  c,  3  C.  D.  493. 

Computation    of    one-eighth    of    track- 
age, interurban  companies. 
Where  an  interurban  company  obtains  the 
riffht  to  use  existing  tracks  in  a  city,  the  part 
of  its  railway  outside  of.  as  well  as  inside  of. 


ity   should   be  considered 
h  hat    amounl  -    to  one  eipht  i 

I 
0.  C.  C.  79  (It 

Power  of   court   to   order   t  •■  iniis 

to  build  tracks  .joint  1\. 

Wlei.-    two  compai 
i  he  same  b1  i  eel .  a    -oui  I   i 
equity  jurisdicl  ion  baa  no  i  ighl  to  i 
companies    to    unite    in    the   buildii 
.    however    reasonable    ami    i 
to  i  he  ;nh  a  ntage  oi    both   coi   pai   i 
-i  i  in  I  o  be.    Such  pi  o\  i-i.. 
by   the   municipal    authorities   at    I 
t  ime,  and  i  he  com  1-  can  onlj    • 
force  the   i  parties   under   • 

made.      Hamilton,  etc.,    Ry.  Co.   \ .   Han 
Transil  Co.,  ■<  ".  C.  C.  319     1-"" 

One       company      cannot       straddle       tin 
tracks  of  another. 

Si  -    Parrish    v.    Hamilton,  etc     ' 
C.  527   I  L902). 

One     company     may      restrain     another 
from  injuring  its  tracks. 
Where,  before  grants  are  made  to  1 
panies,  t he  city  hail  by  ordinan  •>■  s 
another  streel   railroad   company   the  rig 
place   it-   tracks    in   the   center  of   • 
which  had  been  don.-,  the  oth<  r 
be    restrained    from    occupying    the   centi 
said   street    with    track-    to   the    injury    of   the 
company   having  possession.      Hamilti  • 
Electric  '  'o.   v.   I  fa  milton,  •  tc.,  Transit  I 
0.  C.  C.  319  I  Is'-")  i  ;  b.  c..  3  C.  1).  64. 

Use    of    tracks    of     another    company  — 

rights   of  abutter. 

An  abutting  owner  will  not  be  heard  in  an 
objection  to  a   street   railway  company 
granted   the   righl    to  occupy   and 
railway  track-  laid  by  another  eompanj 
being    a     matter    between     the    compai 
Sanfleel    v.   Toledo,    LO  0.  C.   I      U 
-.  c,  8  C.  D.  711. 

Invalid    grant  —  rights    of    taxpayer. 

Upon  the  refusal  of  the  solicitor  a  tax- 
may   maintain    an    action    to    enjoil 
cise  of  a  franchise  illegal! ; 
v.  Cincinnati,  etc..  R.  l:    I    •..  I  W.  L.  B 
(1880). 

Defective    grant  —  rights    of    taxpayer. 
If   a  granl    is  illegal    for  an 

than  that   the  abutting  owner-  bav< 
I.  it    i-  the  duty   of  the  publii 

enjoin  the  execution   of  the   same 

upon    tie-    request    of    a    tax]  iyt  r 
i  •]    to    enjoin,    they    I 

taxpayer    himself    has    the    righl    I 

upon  behalf  of  the   city.      '■'  incin- 

nati,  30  W.  1..  B.  213       -  Miller. 

5  0.  C.  C.  609   (1891);  3.  c,  3 


298 


Private  Corporations  in  Ohio. 


Grants  for  Railways,   §   3437. 


Same  subject. 

Where  an  action  is  brought  by  a  taxpayer, 
not  living  on  or  owning  any  property  abutting 
on  the  line  of  a  street  railroad,  to  enjoin  its 
use,  on  the  ground  that  the  grant  is  illegal 
and  void,  it  is  not  error  in  the  court  to  dis- 
miss the  case,  the  petition  not  averring,  and 
the  evidence  not  showing  that  expense  will  be 
put  on  him  by  taxation  or  otherwise,  the  pe- 
tition having  'been  filed  after  the  road  was 
completed  and  in  operation. —  See  Buning  v. 
Cincinnati,  etc.,  Ry.  Co.,  1  0.  C.  C.  323  (1886)  ; 
s  c  1  C.  D.  178;  Sloan  v.  Peoples,  etc.,  Ry. 
Co..  7  0.  C.  C.  84   (1891)  ;  s.  c,  3  C.  D.  674. 

Rights  of  taxpayer  when  mere  puppet. 

When  a  taxpayer  is  not  acting  in  his  own 
interest,  but  has  been  indemnified  against 
costs,  and  is  a  mere,  puppet,  he  cannot  main- 
tain an  action. —  Gallagher  v.  Johnson,  31  W. 
L.  B.  24    (1893). 

Defective  grant  —  rights  of  abutting 
owner. 

An  abutting  owner,  as  such,  cannot  com- 
plain of  defects  in  a  grant  other  than  that  of 
the  absence  of  the  required  consents  of  abut- 
ting owners. —  Glidden  v.  Cincinnati,  30  W.  L. 
B.  213  (1S93)  ;  Barney  v.  Mt.  Adams,  etc.,  Ry. 
Co.,  30  W.  L.  B.  286   (1893). 

Percentage  of  earnings  payable  to  city 
—  construction    of   ordinance. 

See  Cincinnati  v.  Mt.  Auburn,  etc.,  Ry.  Co., 
28  W.  L.  B.  276  (1892);  Cincinnati  v.  Cincin- 
nati Ry.  Co.,  6  N.  P.  140  (1899)  ;  s.  c,  9  Dec. 
235;  s.'c,  8  N.  P.  80. 

Repayment  by  company  of  assessments 
for  improving  street,  who  entitled 
thereto. 

Where  a  franchise  is  granted  on  condition 
that  the  company  repays  to  the  landowners 
assessments  paid  by  them  for  improvements, 
the  landowner  at  the  time  of  repayment  is 
entitled  to  the  money. —  Harkness  v.  Schiely, 
13  O.  C.  C.  177   (1896);  s.  c,  7  C.  D.  10S. 

Assessments  for  paving  —  how  paid. 

It  seems  that  a  street-car  company  has  the 
same  right  to  pay  paving  assessments  in  in- 
stallments as  abutting  owners  of  property. — 
Editorial,  35  W.  L.  B.  345   (1896). 

License  fee  per  car  —  construction  of 
ordinance. 

See  Cincinnati  v.  Mt.  Auburn,  etc.,  Ry.  Co., 
28  W  L.  B.  276  (1892);  Cincinnati  v.  Cincin- 
nati, etc.  Ry.  Co.,  6  N.  P.  140  (1899);  s.  c, 
9  Dec.  235;   s.  c,  8  N.  P.  SO. 

Abandonment  of  franchise. 

The  failure  for  over  twenty  years  to  operate 
a  railway  on  certain  streets  included  in  a 
franchise  granted,  raises  a  presumption  of  an 
abandonment  of  the  grant  so  far  as  concerns 
those  streets.—  Louisville  Trust  Co.  v.  Cin- 
cinnati, 76  Fed.  296  (1896),-  s.  c,  10  0.  F.  D. 
112. 


Rescission  of  grant. 

An  ordinance  passed  repealing  the  granting 
ordinance  can  have  no  effect  without  the  as- 
sent of  the  company. —  Cincinnati,  etc.,  Ry. 
Co.  v.  Carthage,  36  Oh.  St.  631  (1881)  ;  Cleve- 
land City  Rv.  Co.  v.  Cleveland,  94  Fed.  385 
(1899). 

Estoppel  of  city  —  rescission. 

Where  a  village,  through  its  council,  invited 
and  induced  a  street  railway  company  to  enter 
its  corporate  limits  and  occupy  its  streets 
with  tracks  for  the  purpose  of  opening  a 
street  railway,  and  the  company  thereupon 
built  and  equipped  a  railway  in  its  streets, 
and  made  large  expenditures  in  so  doing,  the 
village  cannot  thereafter  repudiate  the  action 
of  its  council  on  the  ground  their  proceedings 
were  irregular. —  Mill  Creek,  etc.,  Ry.  Co.  v. 
Carthage,  18  O.  C.  C.  216  (1899)  ;  s.  c,  9  C.  D. 
823. 

Forfeiture  —  power    of    city    to    remove 
tracks. 

Under  certain  circumstances  amounting  to  a 
forfeiture,  the  city  may  cause  the  tracks  and 
equipment  to  be  removed  from  the  street 
without  any  judicial  determination  as  to  the 
rights  of  the  parties. —  Stewart  v.  Ashtabula, 
36  W.  L.  B.  46  (1S96).  See  Cleveland,  etc., 
Ry.  Co.  v.  Cleveland,  4  N.  P.  21  (1897)  ;  s.  c, 
6  Dec.  33 ;  Akron,  etc.,  R.  R.  Co.  v.  Village,  6 
N.  P.  276  (1S99)  ;  s.  c,  8  Dec.  142;  Mill  Creek, 
etc.,  Ry.  Co.  v.  Carthage,  18  O.  C.  C.  216 
(1899);  s.  c,  9  O.  C.  D.  833  (1899);  Stewart 
V.  Ashtabula  (U.  S.  C.  C.  A.),  46  W.  L.  B. 
137    (1901). 

Forfeiture  —  who    may    take    advantage 
of. 

The  city  authorities  may  waive  the  for- 
feiture of'  a  franchise,  and  neither  an  abut- 
ting owner  nor  a  competitive  company  can 
enjoin  the  exercise  of  the  franchise,  and  thus 
prevent  the  city  from  exercising  its  right  of 
waiver. —  Barney  v.  Mt.  Adams,  etc.,  Ry.  Co., 
30  W.  L.  B.  286  (1893)  ;  Hamilton,  etc.,  Elec- 
tric Co.  v.  Hamilton,  etc.,  Ry.  Co.,  5  0.  C.  C. 
319   (1890);  s.  c,  3  C.  D.  158. 

Refusal  to  run  cars,  mandamus  not  the 
remedy. 

Mandamus  will  not  lie  to  compel  a  company 
to  operate  cars  under  a  franchise  accepted  by 
it.  The  remedy  is  under  §  1777. —  State  ex 
rel.  v.  Cleveland,  etc.,  Ry.  Co.,  15  0.  C.  C.  200 

(1S97)  ;  s.  c,  8  C.  D.  474. 

Adverse  possession  of  streets. 

The  right  to  operate  a  street  railroad  can 
be  acquired  by  adverse  possession  for  twenty 
years. —  Cincinnati  v.  Columbia,  etc.,  Ry.  Co., 
17  W.  L.  B.  192   (1886). 

Conditions  —  what  invalid. 

The  council  of  a  city  may  refuse  permission 
to  a  street  railway  company  to  construct  its 
road  in  its  streets,  but  if  it  grants  permission, 


Street  Railroad  Corporatio 


299 


Grants  for  Railway  —  Consents,  g  3439. 


it  may  not  do  so  upon  the  condition  that  the 
company  does  not  exercise  one  of  its  corporate 
powers,  and,  therefore,  a  condition  or  regula- 
tion that  the  company  shall  not  cany  freight 
is  void. —  State  ex  rel.  v.  Davton  Traction 
Co.,  18  0,  C.  C.  490  (1899)  j  s,  l\,  10  0.  C.  D. 
212. 


Effect   of   oiili M.nic .     requiring    <  <> u .1  m  - 

tois    not    to    allow    certain     paiUlglfl 
to    alight    when    car    in    mot  inn. 

East  <  leveland    I;.  R.  I 
\\\  L.  B.  220 


§   3439.     WRITTEN  CONSENT  01   OWNERS  OF  MORE  THAN  ONE-HALF  OF 
FEET  FRONT  NECESSARY.— No  such  grant  shall  be  made  until  produced 

to  council,  or  the  commissioners,  as  the  case  may  be,  the  written  consent  of  the  owners 
of  more  than  one-half  of  the  feet  front  of  the  lots  and  lands  abutting   on  the  street 
or   public   way,   along   which  it  is   proposed   to   construct  such   railway   or   < 
thereof;   and  the  provisions  of  sections  two  thousand   five   hundred    am  d   of 

two  thousand  five  hundred  and  three  to  two  thousand  five  hundred  and  five,  inclu- 
sive, so  far  as  they  are  applicable,  shall  be  observed  in  all  respects,  whether  the  rail- 
way proposed  is  an  extension  of  an  old  or  the  granting  of  a  new  route;  provided,  that 
this  act  shall  not  apply  to  any  county  containing  a  city  of  the  second  grade  of  the 
second  class.     (April  18,  1883,  80  v.  173;  R.  S.  1880;  April  29,  1868,  65  v.  112. 


"Want   of  consents  —  injunction. 

Where  a  franchise  is  granted  without  the 
consent  of  property-owners,  the  construction 
of  the  road  may  be  enjoined  at  the  suit  of 
nonconsenting  property-owners. —  Roberts  v. 
Easton,  19  Oh.  St.  78  (1869). 

Same  subject. 

Abutting  owners  of  property  upon  one 
street  are,  as  a  general  rule,  restricted  in  their 
complaint  as  to  the  absence  of  consents  to  the 
street  upon  which  their  property  abuts.  If, 
however,  the  consents  as  to  one  street  were 
given  upon  the  condition  that  the  required 
consents  should  be  secured  upon  the  other 
streets,  quaere. —  Glidden  v.  Cincinnati.  30 
W.  L.  B.  213  (1803).  See  Simmons  v.  Toledo, 
5  O.  C.  C.  124  (1889);  s.  e..  3  C.  D.  G4; 
Harrison  v.  Mt.  Auburn,  etc..  Ry.  Co.,  17  W. 
L.  B.  265    (1887). 

Rights   of  nonconsenting   abutters. 

Nonconsenting  abutting  owners  cannot  be 
heard  to  complain  of  the  violations  by  the 
grantee  of  conditions  imposed  by  those  who 
consented  when  such  consenting  owners  do  not 
themselves  complain  of  such  violations. 
Barney  v.  Mt.  Adams,  etc.,  Rv.  Co.,  30  W.  L. 
B.  286   (1893). 

What  is  interference  with  access. 

Tracks  which  leave  a  space  of  ten  feet  be- 
tween the  nearest  track  and  the  curb  do  not 
interfere  with  the  access  to  abutting  property. 
—  See  Barney  v.  Mt.  Adams,  etc.,  Ry.  Co.,  30 
W.  L.  B.  286,  288   (1893). 

Same  subject. 

The  construction  of  a  double  track  streel 
railway  in  the  middle  of  a  street  so  located 
that  the  space  between  the  exterior  and  tin- 
sidewalk  is  not  sufficient  to  permit  wagons 
with  teams  attached  to  stand  transversely  be- 
tween the  curb  lines  and  passing  cars,  is  not 
per  se  a  perversion  of  the  street  to  private 
uses,   or   an   unlawful    infringement   of   streel 


easements  appurtenant    to   abutting  pro] 

Is  v.  (  olumbus,  etc.,  Ry.  I  o„  28  \\ .  I..  B. 
172      L892).     See   Schaaff   v.    <  leveland, 
Ry.  Co.,  Hi  0.  C..C.  252     L89S  -        D 

688;  Bellaire.  i  tc,  Ry.  '  o.  v.  Smith,  41  W.  I.. 
B.  212  i  L899)  ;  Oviatl  v.  Akron,  etc.,  R.  R. 
Co.,  2  X.  P.  84   I  L895)  \  -.  ••  .  3  Dec.  252. 

Same  subject  —  trolley  poles. 

See  Mt.  Ada  ms,  etc.,  Ry.  '  'o.  v.  Wins! 
0.  C.  C.  425  (1888);  -.  c,  2  CD.  240. 

Interference     with     market,     rights     of 

abutter. 

See  Sell-  v.  Columbus,  etc.,  Ry.  Co.,  28  W. 
L.  B.  172   (189 

Liability    for    injuries    to    access    or    to 

trees  in   street. 

See  Keefe  v.  (leveland  City  R.  R.  I 
X.  p.  466  (1901);  Akron,  etc.,  R.  R.  I 
Keck,  23  0.  C.  C.  57    (1901). 

Suit    by    abutting     owners,     joinder     of 
parties. 

One  or   more   property-owners   "ii   a    -' 
join  "ii  behalf  of  others  situat 
same  street,  without  alleging  that  at  the  time 
i  [on  is  bi  i  h  and  every  member 

of  the  class  is  actually  participating  in  bring- 
ing and  prosecuting  the  action.     Tn  Bueh   at- 
tack   property-owners   on 
belong  to  the  same  class  as  tl 
street,  and  therefore  they  cannot  unite 

iction. —  Glidden  v.  Cincinnati,  30  W.  L. 
B.  213   (189 

Temporary  interference    with    access. 

The  temporary  interference  with 
which  results  to  abutting  owi 
by  the  opening  of  a  streel  for  I 
of  a  lino  of  streel  railway,  is  a  necessary  inci- 
dent to  the  ri!_dit  to  construcl  the  railway,  and 
cannol    be   complained   of  by   such   abutting 
owners. —  Glidden  v.  Cincinnati.  30  W.  L.  B. 
213    i 1- 


300 


Private  Corporations  in  Ohio. 


Grants  for  Railway  —  Consents,   §  3439. 


Contest      as      to      consents  —  burden      of 
proof. 

A  property  owner  may  contest  the  question 
whether  or  not  the  council  has  the  requisite 
number  of  consents  to  give  it  jurisdiction,  but 
the  presumption  of  law  is  in  favor  of  the 
action  of  the  council,  and  the  burden  of  proof 
lies  upon  the  plaintiff,  the  property  owner,  to 
-how  that  sutlicient  consents  were  not  given. 
—  Simmons  v.  Toledo,  8  0.  C.  C.  535  (1890); 
<  c  4  C.  D.  69.  See  Cincinnati  College  v. 
Nesinith,  2  C.  S.  R.  24  (1870);  Roberts  v. 
Easton,  19  Oh.  St.  78  (18G9). 

Absence     of     consents  —  rights     of     tax- 
payer. 

A  taxpayer,  as  such,  cannot  institute  pro- 
ceedings to  have  a  street  railway  grant  de- 
clared" void  because  of  the  absence  of  the 
necessary  consents  of  the  abutting  property 
owners.  '  Such  action  can  only  be  brought  by 
an  abutting  owner.— Glidden  v.  Cincinnati. 
30  Oh  St.  213  (1893);  Sommers  v.  Cincinnati. 
8  A  L.  Rec.  612  (1880):  Harrison  v.  Mt. 
Auburn,  etc..  Ry.  Co..  17  W.  L.  B.  265  (1887)  ; 
Hamilton  v.  C.  &  H..  etc..  R.  R.  Co.,  5  N.  P. 
457   (1S98)  ;  s.  c,  8  Dec.  174. 

Owner  niust  consent. 

Consents  must  be  in  writing  signed  by  the 
owner  of  the  property  or  his  duly  authorized 
agent.  A  signature  and  consent  signed  by  the 
husband  in  his  own  name,  where  the  wife  owns 
the  property  and  does  not  consent,  is  insuffi- 
cient and  should  not  be  received  or  counted  — 
Simmons  v.  Toledo,  8  O.  C.  C.  535  (1S90)  ; 
s.  c,  4  C.  D.  69. 

Consent     and     remainderman     and     life 
tenant. 

The  signature  of  the  owner  of  the  remainder 
in  fee.  without  the  signature  of  the  party 
holding  the  life  estate,  is  sufficient,  and  should 
be  counted  as  a  proper  consent  under  certain 
circumstances. — ■  Simmons  v.  Toledo,  8  O.  C. 
C.  535  (1890);  s.  c,  4  C.  D.  69. 

Consent   of   co-tenants. 

Less  than  the  whole  number  of  joint  ten- 
ants in  abutting  lands  cannot  give,  consent  to 
the  construction  of  a  street  railway  track  in 
a  street  under  §  2502.—  Ronnebaum  v.  Mt. 
Auburn,  etc.,  Ry.  Co.,  29  W.  L.  B.  33S  (1S93). 

Same  subject.  . 

A  tenant  in  common,  who  may  desire  to 
vote  adversely  to  his  cotenants.  has  a  right 
to  have  such  vote  counted,  and  will  be  allowed 
to  vote  the  number  of  feet  front  which  his 
undivided  interest  in  the  land  proportionately 
represents. —  Simmons  v.  Toledo,  S  O.  C.  C. 
535  (1890);  s.  c,  4  C.  D.  69. 

Consents  —  entry  on  records. 

It  is  not  necessary  that  the  consent  of  prop- 
ertv  owners  be  entered  on  the  records  of  the 
council.  It  is  sufficient  if  they  are  produced 
or  furnished  to  the  council.—  Sanfleet  v.  To- 
ledo, 10  O.  C.  C.  460  (1S93)  ;  s.  c.,  8  C.  D.  711. 


Consents    for    each    street    must    be    ob- 
tained. 

See  Mt.  Auburn,  etc.,  Ry.  Co.  v.  Neare,  54 
Oh.  St.  153  (1S96)  ;  s.  c,  29*W.  L.  B.  171 ;  Rapp 
v.  Storrs.  etc.,  R.  R.  Co.,  12  W.  L.  B.  119  (1884). 

Effect  of  §   2502  on  this  section. 

See  Neare  v.  Mt.  Auburn,  etc.,  Ry.  Co.,  29 
W.  L.  B.  171;  s.  c,  54  Oh.  St.  153    (1896). 

Consents  as  to  mode  of  operation,  etc. 

It  is  not  necessary  that  they  stipulate  the 
mode  and  manner  of  construction  and  opera- 
tion.—  Sloane  v.  Peoples,  etc.,  Rv.  Co.,  7  O.  C. 

C.  S4  (1S91);  s.  c,  3  C.  D.  674. 

Additional  switches. 

A  street  railway  company,  having  located 
and  constructed  its  railway  under  the  proper 
municipal  authority,  with  all  the  switches  or 
turnouts  which  were  then  deemed  necessary 
by  the  company,  cannot  afterward  construct 
additional  switches  or  extend  those  already 
constructed,  without  first  obtaining  the  writ- 
ten consent  of  a  majority  of  the  property 
holders,  represented  by  the  feet  front,  of  the 
property  abutting  on  that  part  of  the  street 
where  such  additional  switches  or  extensions 
are  proposed  to  be  constructed,  and  obtaining 
the  right  to  do  so  from  the  proper  municipal 
authority.—  Harner  v.  Columbus,  etc.,  Ry. 
Co.,   29  W.  L.  B.  387    (1893). 

Consent  as  to  double  track. 

Where  a  single  track  street  railroad  has 
been  lawfully  constructed,  the  consent  of  any 
of  the  property  owners  cannot  be  counted  as 
an  assent  to  the  construction  of  the  second 
track.—  Roberts  v.  Easton,  19  Oh.  St.  78 
(1869). 

Road  to  run  on  tracks  of  another  com- 
pany —  consents. 

The  consents  of  property  owners  must  be 
had.  notwithstanding  the  company  does  not 
intend  to  construct  a  new  track,  but  to  use 
the  tracks  already  laid. —  Sanfleet  v.  Toledo, 
10  O.  C.  C.  460   (1893)  :  s.  c.  S  C.  D.  711. 

See  State  ex  rel.  v.  Cincinnati,  etc..  Ry.  Co., 
19  O.  C.  C.   79    (1S99). 

Consents  as  to  county  property. 

The  board  of  county  commissioners  is  the 
proper  source  from  which  to  obtain  a  consent 
as  to  county  property,  and  the  action  of  the 
board  is  valid  although  not  entered  on  the 
journal,  and  mnv  lie  proved  by  parol. —  Near- 
ing  v.  Toledo,  etc..  Rv.  Co.,  9  O.  C.  C.  593 
(1893)  :   s.  c.  6  C.  I).  064. 

Ratification    of    unauthorized    consents. 

A  written  consent  given  by  an  unauthorized 
person,  a  stranger  to  the  title,  and  not  pur- 
porting to  be  the  consent  of  the  real  owner, 
afterward  ratified  by  such  owner  and  adopted 
as  his  own  act.  but  not  until  after  the  passage 
of  the  ordinance  granting  permission  to  con- 
struct, cannot  be  counted  as  the  written  con- 
sent of  the  owner  within  the  meaning  of  the 


Street  Railroad  Corporations. 


301 


Grants  for  Railway  —  Consents,   |  3439a. 


statute.    ■  Sommers  v.  '  incinnati,  8  A.  I..  I:  ■ 
612    (1880). 

Consents     inure     to     benefit     of     lowest 

bidder. 

The  consents  of  abutting  owners  to  the  con- 
struction  and  operation    of  a    streel    railroad 

route,  by  whomsoever  obtained,  inure  to  the 
benefit  of  the  lowest  bidder,  to  permil  the 
abutting  owners  to  dictate  to  which  of  the 
holders  their  consent  shall  inure,  would  be  to 
permit  them  to  absolutely  control  the  award 
of  the  contract,  which  the  statute  (|  2502) 
requires  shall  be  settled  by  competition  in 
rates  of  fare  only. —  Knurr  v.  Miller.  5  0.  C. 
C.  009  (1891);  s."  c,  3  C.  D.  297;  s.  c,  25  YV. 
L.  B.  128;  Mathers  v.  Cincinnati.  3  W.  L.  B. 
551  :  s.  c,  3  W.  L.  B.  70!)  (1878)  ;  State  i 
V.  Bell,  34  Oh.  St.   194    (1877). 

Consents     are     condition     precedent     to 
grant. 

Under  the  provisions  of  SS  2501  and  2505, 
inclusive,  and  S§  3437  to  3443.  inclusive,  the 
consent  of  a  majority  in  number  of  the  prop- 
erty owners  upon  the  streets  upon  which  such 
road  is  to  pass,  filed  in  writing,  is  a  condition 
precedent  to  the  power  of  the  city  council  to 
make  a  grant. —  Sommers  v.  Cincinnati,  8  A. 
L.  Rec.  C12   (1880). 

Conditional  consents. 

A  consent  given  upon  the  condition  that  the 
construction  of  the  railway  shall  be  com- 
menced and  completed  within  a  certain  time 
is  a  condition  subsequent,  and  its  effect  lies  as 
between  the  party  who  signed  the  paper  and 
the  party  who  built  the  road:  so  far  as  the 
city  council  is  concerned,  such  condition 
should  not  preclude  that  body  fmm  acting 
upon  the  consent. —  Simmons  v.  Toledo,  8  O. 
C.  C.  535   (1890)  ;  s.  c,  4  C.  D.  09. 

Conditional    consents,    nonperformance. 

Where  consents  are  conditioned  upon  the 
adoption  of  a  specified  motive  power,  even  if 
tho  result  is  not  a  mere  covenant,  but  a  con- 
dition, its  violation  does  not  ipso  facto  render 
the  consents  void,  but  only  voidable  at  the 
option  of  parties  giving  them. —  Barney  \. 
Mt.  Adams,  etc.,  Ry.  Co.,  30  W.  L.  B.  286 
(1893). 


When  consents  should   i..    obtained 

h  ia  nol   i 
t  hat  i  he  numb* 
ers    should    have   been   obi 
publii 

Sloane  v.  Peoples    eh      l 
I  1891 

Consents  —  how   long    valid. 
Consents     ol     abutting     , 

railway,  and  nol  \\  ithdrau  n,  i 
for   the    railway    at    the 
second    ordinam 
valid.      Sanfleel    v.   Toledo,    I" 

'      D.   711. 

Withdrawal  of  consent. 

A  propertj  owner  may  withdraw  lii-  i 
consenl    a1    any   t  ime   be! 
acted    upon    it    and    passed    I 
Simmons   v.   Toledo,    -    l  I 
s.  c,  4  C.   D.  69;    Parrish   v.   Hamilton 
(  o.,  23  0.  C.  C.  527   I  L902 

Right  to  grant  temporary  use  ()t    sti 
without  consents. 

See    Mathers    V.    <  incinnati.   3    \V.    [..    ! 
(1878);   8.  c  3  W.   L.   B.  551. 

Purchased   consents  are  invalid. 

The    purpose    of    I  his    seel  ion  is  1 
the   ow  ners   of   property    from    ari.it  > 
by  city  authorities,  and  each  owner 
to  an  honest,    fair,   and    unbiased    • 

from    other    owner-,    therefon osents 

tained   by   money  or   other  considi  -  I 

uring  to  one  person  are  void  and   cam 

counted.    -  Hamilton    i 

ilt, ,n.    etc.,    Traction    <  o.,    L2    I » 

Parrish    v.    Hamilton 

527   11902). 

Same  subject. 

A   t  bird    party   inten  sted   in   defi 
pro]  osed    grant    may    buy    and    a    land 
may   for   money   or   other   consi 
to  withdraw   or  withhold   hi-  i 
land    v.    Cleveland    Citv    R 
373  1 19ii2 1  ;   s.  c..   L2  Dec 

Estoppel   cannot  cure  want  of  com 

See    Parrish    v.    Hamill 
C.  C    527     1902 


§  3439a.  WHEN  CONSENTS  CANNOT  BE  WITHDRAWN.—  Nothing  contained 
in  sections  2502  and  3439  shall  permit  any  persons  owning  property  abutting  on  any 
street  along,  in  or  over  which  a  street  railroad  is  about  to  be  constructed,  to  withdraw 
his  or  their  consent  after  an  ordinance  granting  the  right  to  construct  and  operate  a 
street  railroad  shall  have  been  read  the  second  time;  provided,  a  period  o 
thirty  days  has  elapsed  since  the  first  reading  of  said  ordinance  in  the  council  or  other 
body  authorized  to  make  the  grant.  And  where  an  abutting  property  holder  has  been 
heretofore  compensated  for  his  consent,  or  has  heretofore  withdrawn  his  cons* 
withstanding  thirty  days  has  not  elapsed  since  the  first  reading  of  the  ordinance 
after  an  ordinance  granting  the  right  to  construct  and  operate  a  street  railroad  has 
been  read  the  second  time  in  the  council  or  other  body  authorized  to  make  the  grant 


302 


Private  Corporations  in  Ohio. 


Appropriation  of  Property  for  Railway,  §  3440. 


and  a  grant  has  been  made  by  the  council  or  other  public  body  to  a  company  or  indi- 
vidual, pursuant  to  such  consents,  the  grant  shall  not  be  held  invalid  by  reason 
thereof.     (May  10,    1902,  95  v.  475.) 


Purchased   consents    cannot   be   used. 

As  the  policy  of  the  law  is  to  protect  abut- 
ting owners  from  the  exercise  of  arbitrary 
power   by   city   authorities,   consents   unfairly 


obtained,  as  by  purchase,  cannot  be  used. — 
Hamilton,  etc..  Transit  Co.  v.  Hamilton,  etc., 
Traction  Co.,  12    Dee.  1   (1901). 


§  3440.  WHEN  PROPERTY  MAY  BE  APPROPRIATED  FOR  SUCH  RAIL- 
WAYS; TOLEDO;  CUYAHOGA  COUNTY. —  When  the  council  or  commissioners 
make  such  grant,  the  company  or  person  to  whom  the  grant  is  made  may  appropriate 
any  property  necessary  therefor  when  the  owner  fails  to  expressly  waive  his  claim 
to  damages  by  reason  of  the  construction  and  operation  of  the  railway;  and  in  any 
city  of  the  third  grade  of  the  first  class  any  person,  persons  or  company  which  is 
authorized  to  construct  and  operate  and  has  constructed  and  is  operating  a  street  rail- 
way, may  appropriate  any  property  necessary  for  the  purpose  of  occupying  and  using 
under  section  3438  any  existing  street  railway  track  or  tracks,  subject  to  the  limita- 
tions of  said  section,  and  for  not  more  than  one-eighth  of  the  entire  distance  between 
the  termini  of  the  route  as  actually  constructed,  operated  and  run  over,  of  the  appro- 
priating company  or  person  at  the  time  appropriation  proceedings  are  begun,  such 
appropriation  to  be  made  in  the  mode  and  manner  provided  for  the  appropriation  of 
property  in  part  third,  title  2,  chapter  8,  of  the  Revised  Statutes;  and  in  counties 
containing  a  city  of  the  second  grade  of  the  first  class  the  power  to  appropriate  may 
be  exercised,  as  hereinbefore  provided,  for  the  purpose  of  constructing  a  street  rail- 
way along  a  highway  occupied  by  a  turnpike  or  plank  road  company  when  the  person, 
persons  or  company  authorized  to  construct  such  street  railway  cannot  agres  with 
such  turnpike  or  plank  road  company  upon  the  terms  and  conditions  upon  which  such 
highway  may  be  occupied,  and  when  such  appropriation  will  not  unnecessarily  inter- 
fere with  the  reasonable  use  of  such  highway  by  such  turnpike  or  plank  road  com- 
pany; provided,  nothing  herein  contained  shall  affect  the  rights  of  the  property 
owners  to  give  or  withhold  their  consent  concerning  the  right  of  way  for  street  rail- 
roads upon  any  street  or  road.  (April  16,  1892,  89  v.  349;  April  11,  1890,  87  v.  178; 
March  27,   1866,   63  v.   55,   §  4;  March  24,   1864,  61   v.   53,   §   1.) 


Constitutionality. 

The  provisions  contained  in  this  section 
prior  to  the  amendment  of  April  11,  1890.  87 
v.  178,  are  constitutional;  whether  those 
added  by  that  amendment  are  constitutional, 
quaere?  but  if  unconstitutional,  they  are  dis- 
tinct and  separable  from  those  of  the  original 
section,  and  do  not  affect  their  validity. — 
Street  Rv.  Co.  v.  Street  Rv.  Co.,  50  Oh.'  St. 
603    (1893). 

Injunction  by  one  company  against  an- 
other. 

To  entitle  one  street  railway  company  to  an 
injunction  to  prevent  the  operation  of  an- 
other company's  cars  over  tracks  in  the  street 
in  which  it  has  appropriated  a  right  of  use. 
it  must  appear  not  only  that  the  plaintiff  was 
not  made  a  party  to  the  proceedings,  but  that 
also  it  has  a  real  interest  in  the  tracks.  It 
has  no  such  interest  when  it  has  sold  all  its 
right  of  use. —  Metropolitan,  etc.,  Rv.  Co.  v. 
Toledo,  etc..  Ry.  Co..  9  O.  C.  C.  664;  s.  c, 
6  C.  D.  733  (1893).  See  Toledo,  etc..  Rv.  Co. 
x.  Toledo,  etc.,  Ry.  Co.,  7  N.  P.  211  (1894); 
1  Dec.  33. 


Appropriation  of  existing  tracks. 

A  street  railway  company,  to  which  the 
council  of  a  city  has  granted  the  right  to 
occupy  a  part  of  the  track  of  another  com- 
pany in  accordance  with  §  3438.  is  authorized 
by  this  section,  without  the  aid  of  the  amend- 
atory provisions  of  April  11,  1890.  to  appro- 
priate the  track  according  to  the  grant,  when 
the  companies  are  unable  to  agree  upon  the 
compensation,  and  the  appropriation  proceed- 
ing may  be  prosecuted  under  chapter  8  of  title 
2  of  part  third  of  the  Revised  Statutes. — 
Street  Rv.  Co.  v.  Street  Ry.  Co..  50  Oh.  St. 
G03    (1S93). 

Tracks  must  be  condemned. 

Although  a  company  may  not  have  an  ex- 
clusive  right  in  a  street,  this  does  not  conflict 
with  its  right  of  private  property  in  the 
material  of  which  its  road  is  constructed. 
Such  material  in  place  is  as  strictly  the  pri- 
vate property  of  the  corporation  as  it  was 
before  it  was  placed,  save  in  this  only,  that 
having  been  placed  in  a  public  street,  it  was 
thereby  dedicated  to  the  ordinary  use  of  the 
public;    but    as   a    railroad    such   material    re- 


Si reet  Railroad  <  Iorpora 


303 


Appropriation  of  Property  for  Railway,  g  3440. 


mains  the  private  property  of  the  company, 
and  for  such  purpose  ii  i-  subjecl  to  the  us  ■ 
and  control  of  the  owner  exclusively.  Winn 
therefore,  a  right  of  way  for  streel  railroad 
purposes  is  granted  over  the  - 1  ae  rou 
another  company  by  the  municipal  an 
ities,  the  private  property  of  the  former  can- 
not be  appropriated  by  the  latter  company 
until  compensation  i-  firsl  made  by  the  latter 
to  the  former  company. —  Kinsman  Streel  I!. 
R.  Co.  v.  Broadway  street  R,  R.  Co.,  36  Oh. 
St.  239   (1880). 

Crossing  of  tracks. 

A  street  track  crossing  is  a  burden  incidenl 
to  the  right  to  operate  a  streel  railway  in  a 
public  street,  and  cannot  be  enjoined  pending 
appropriation. —  Metropolitan,  etc.,  Ry.  Co.  v. 
Toledo,  etc..  l!v.  Co..  9  O,  ( !.  I  .  664;  s.  c,  G 
C.  D.  733   (1893). 

Time     use     of     property     is     required  — 
pleading. 

It  is  not  necessary,  in  an  appropriation  pro- 
ceeding, for  the  petition  to  state  the  length  of 
time  the  use  of  the  property  sought  to  be 
appropriated  will  be  required  by  the  appro- 
priating company. —  Toledo,  etc.,  Ry.  Co.  v. 
Toledo,  etc..  Ry.  Co.,  12  0.  C.  C.  367  ,1893); 
s.  c.  5  C.  D.  6*43. 

Necessity  for  use   of  tracks. 

Where  a  city  council  has  duly  authorized 
the  construction  and  operation  of  a  line  of 
street  railway  upon  certain  streets  of  the 
city,  and  the  use  by  the  grantee  of  such  fran- 
chise of  a  portion'  of  existing  tracks  of  an- 
other company,  the  question  of  the  necessity 
of  such  use  cannot,  except  for  the  reason  lie- 
low  stated,  be  inquired  into  in  appropriation 
proceedings.  In  the  absence  of  evidence  im- 
peaching the.  action  of  the  council  for  fraud. 
the  probate  court  is  concluded  thereby. — 
Toledo,  etc..  Ry.  Co.  v.  Toledo,  etc..  Ry.  Co., 
6  0.  C.  C.  362  (1892)  ;  s.  c,  3  C  D.  493. 

Appropriation  of  part. 

Where  one  company  has  appropriated  the 
right  to  use  a  portion  of  the  tracks  of  another 
company  under  the  power  conferred  upon  it  by 
the  legislature  and  city,  it  will  not  be  pre- 
cluded thereby  from  '  prosecuting  another 
appropriation  proceeding  to  condemn  the  right 
to  use  more  of  the  tracks  until  it  has  obtained 
an  additional  grant  from  the  city.— Toledo, 
etc..  Rv.  Co.  v.  Toledo,  etc.,  Ry.  Co.,  12  0.  C. 
C.  367 '(1893);  s.  c,  5  C.  D.  643. 

Proof    of   application,    notice,    and    con- 
sents. 

In  a  proceeding  to  condemn  track-  or  prop- 
erty under  this  section,  it  is  not  necessary  to 
prove  that  application  to  the  council  for  the 
franchise  was  made,  and  notice  thereof  given, 
or  that  the  consents  of  abutting  property  own- 
ers were  obtained. —  Toledo,  etc.,  Ry.  (  "•  v- 
Toledo,  etc..  Rv.  Co..  6  0.  C.  C.  362  (1892); 
s.  c,  3  C.  D.  493. 


Proceedings     to     appropriate      tracks  — 

proof. 

!    ili  do     l 

Co.,   20    \V.    I..    B.    17.'    |  1891 
etc.,  Ry.  I  |       do,  etc.,   I 

c,  8  Dec.  208     1803  0.  <     <  . 

3.  c,  5  C.  D.  043. 

How    line    must    be    constructed    before 
condemnation  of  tracks   can   be    bad. 

Under  the  term-  of  thi-  section   it   i-  luffi- 
eient,  to  -li.iu  thai  at  tin-  time  the  proceedings 
in  appropi  iate    •  •  i  e  commenced,  i  he  n  • 
proportion  of  railway   had    been   constructed, 
and  operated.      Toledo 

Co.  v.  T.ded...  etc.,    Ry.  I  ....  6  O.  C.  < 
(1892)  :  -.  c,  3  <  .  I).  193;  Toledo,  etc.,  I 
..  Toledo,  etc.,  Rv.  «  o.,  12  O.  C.  C.  307 
5  C,    I).  043. 

Rigkts   acquired    by    appropriation. 

Where  a  s1  re<  i    railw  ay  compa  nj 
laiiy  appropriated,  by  proceedings   under  the 
statute,  the  right  to  run  and  operate  its 
way  cars  over  and  upon  certain   designated 
portion-  of  the  line  of  streel    railv 
other   company,   it    doe-    not    thereby    acquire 
such  an  interest  in  the  property  of  the 
company  as  to  entitle  it   to  demand  from  an- 
other   company,    which    has    subsequent 
quired,  by  contract   with  the  company  owning 
the  railway,  the  right  to  use  its  tracks,  com- 
pensat  ion  for  such  use.      Toledo,  etc.,  I 
v.    Toledo,    etc.,    Ry.    I  ....    10    0.    C.    C.    168 
1895)  :  -.  .'..  6  C.  D.  :.;-. 

When  council  may  fix   compensation. 

When  the  council,  in  making  a   grant  of  a 
franchise,   reserves  the  right    to  ti\   the   com- 
pensation for  property  taken  in  case  it  grants 
the  right  to  another  company,  the  council  may 
fix  the  compensation  to  be  paid,  and  the 
will  not  interfere  in  the  absence  of  fra 
unreasonableness. —  Kin-man     Street      R,     R. 
i  ...  v.  Broadway  street   K.  R.  I 
239  i  1880). 

Measure  of  compensation. 

The  jury  should  take  into  consideration  the 
value  of  so  much  of  the  railway  structure  and 
material-  in  place,  of  the  defendant  c<  mpany, 
as  i-  sought  to  be  appropriated,  includii  . 
cost  of  the  paving  constructed  by  the  defend- 
ant in  conformity  with  the  city  ordina 
also  the  damages,  if  any.  which  tnre 

will  sustain  in  adapting  it  to  the  uses  of  the 
appropriating    company.      But    the 
company  i-   not    entitled   to   compensation   for 
any  supposed  depreciation  in  value  of  it-  fran- 
chise  to   operate   it-   line   of   railway    i 

-   of    the    city   caused   by   th< 
joint  use  and  occupancy  of  it-  tracks 
the    lo-s    of    fares    which    may    be 
thereby,  nor  for  the  inconvenien  <■  an  I 
ruptions    to    business    which    may 
thereby,  nor  for  the  consequential  diminution 
in  value  of  other  portions  of  the  line  forming 
part  of  its  street    railway   system.     The  com- 
pensation  should   be   limited   to  the   value  of 


304 


Private  Corporations  in  Ohio. 


Consent  of  Owners  of  Road  —  Condition  of  Grants,  etc,   §§  3441-3443. 


the  use  of  the  tracks  during  the  unexpired 
term  of  the  franchise  granted  such  company 
by  the  city  council.  Whether  there  should 
also  be  included  a  just  proportion  of  the  prob- 
able expense  of  future  repairs  and  mainte- 
nance of  the  railway  system  and  future  taxes, 
or  whether  these  expenses  she  aid  be  provided 
for  by  the  respective  companies  as  they  ac- 
crue, quaere. —  Toledo,  etc.,  Rv.  Co.  v.  Toledo, 
etc.,  Ry.  Co.,  6  O.  C.  C.  362  (1892);  s.  c,  3 
C.  D.  493;  Toledo,  etc..  Rv.  Co.  v.  Toledo,  etc.. 
Ry.  Co.,  12  0.  C.  C.  367  '(1893);  s.  c,  5  C.  D. 
643. 

Agreement     between     companies  —  con- 
struction. 

Where  one  company  contracts  with  another 
whereby  it  permits  the  cars  of  such  other  com- 
pany to  run  over  its  track,  such  other  com- 
pany cannot  under  such  contract  run  the  cars 
of  the  third  company  over  the  tracks  of  such 


first  company. — ■  Toledo,  etc.,  R.  R.  Co.  v. 
Toledo  Traction  Co.,  17  0.  C.  C.  22  (1898); 
s.  c,  9  C.  D.  82S.  See  Toledo,  etc..  R.  R.  Co. 
v.  Toledo  Traction  Co.,  15  0.  C.  C.  190  (1897) ; 
a  c.  8  C.  D.  204. 

Appropriation     of     property  —  evidence. 

See  Lorain  Street  Rv.  Co.  v.  Sinning,  17  0. 
C.  C.  649  (1S95)  ;  s.  c,  6  C.  D.  753. 

Injunction  to  prevent  entry  on  private 
property  —  estoppel. 

See  Detwiler  v.  Toledo,  etc.,  Rv.  Co.,  6  N.  P. 

485   (1895)  ;  8  Dec.  166. 

Power   to   condemn    county    road. 

See  Citizens,  etc.,  R.  R.  Co.  v.  Commission- 
ers, 56  Oh.  St.  1,  8  (1897). 

Right  of  interurban  roads  to  condemn. 

See  §  3443-10. 


§  3441.  THE  AUTHORITY  CONTROLLING  THE  PUBLIC  ROAD  MUST  CON- 
SENT.—  If  the  public  road  along  which  the  railway  is  to  be  constructed  is  owned  by 
a  person  or  company,  or  is  within  the  control  or  management  of  the  board  of  public 
works  or  other  public  officer,  such  person,  company,  or  officer  may  agree  with  the  per- 
son or  company  constructing  the  railway  as  to  the  terms  and  conditions  upon  which 
the  road  may  be  occupied.     (February  19,  1870,  67  v.  10,   §   1.) 


State   and   county  roads  included. 

Citizens,  etc.,   R.   R.  Co.   v.   Commissioners, 
56  Oh.  St.   1,  7    (1897). 

"  Officer,"   meaning. 

The  term  "officer"  includes  a  board  of  county 


commissioners. — ■  Citizens,    etc.,    R.    R.    Co.    v. 
Commissioners,  56  Oh.  St.  1,  7   (1897). 


Section   cited. 

State   ex   rel.   v. 
(1896). 


Taylor,  55   Oh.   St.   61,   66 


§  3442.  FORM  OF  OATH  IN  APPROPRIATION  PROCEEDINGS.— In  case  of 
appropriation  of  property  for  such  purpose,  the  oath  to  be  administered  to  the  jury 
shall  be  as  follows:  "  You  and  each  of  you  do  solemnly  swear  that  you  will  justly 
and  impartially  assess,  according  to  your  best  judgment,  the  amount  of  compensation 
which  is  due  to  (here  name  the  owner  or  owners),  by  reason  of  the  appropriation  of 
the  street  or  avenue  (as  in  the  statement  described),  irrespective  of  any  benefit  from 
any  improvement  proposed  by  said  (here  name  the  company,  individual,  or  company 
of  individuals),  and  that  you  will  in  assessing  any  damages  that  may  accrue  to  (here 
name  the  owner  or  owners),  by  reason  of  the  appropriation,  other  than  the  compen- 
sation, further  ascertain  how  much  less  valuable  the  lot  or  lots  of  said  (here  name 
the  owner  or  owners),  will  be  in  consequence  of  such  appropriation."  And  the  jury, 
in  ascertaining  such  compensation  or  damages,  shall  determine  the  amount  thereof 
without  reference  to  the  distinction  between  a  public  and  a  private  nuisance,  and  the 
effect  of  such  distinction  upon  the  right  of  such  owner  or  owners  to  claim  compensa- 
tion or  damages,  and  the  court  shall,  if  requested,  so  direct  the  jury.  (March  27, 
1866,  63  v.  55,  §  5.) 


§  3443.  COUNCIL,  ETC.,  MAY  FIX  TERMS  AND  CONDITIONS.—  Council,  or 
the  commissioners,  as  ths  case  may  be,  shall  have  the  power  to  fix  the  terms  and  con- 
ditions upon  which  such  railways  may  be  constructed,  operated,  extended,  and  con- 
solidated.    (February  19,  1870,  67  v.  10,  §  1;  May  7,  1869,  66  v.  140,  §  1.) 

See   §§  2502,  3438. 


Street  Railroad  Corporatio  305 


Regulations  as  to,  SS  3443a  3443-3. 


§    3443a.      WATCHMEN     AT     STREET     CROSSINGS,     INTERSECTIONS     AND 
CORNERS.— Whenever  any  street  railways  are  operated   by  elect: 
pressed  air,   or  any  motive  power  other  than  horses  or  mules,   in 
the  board   of  legislation  or  council  of  such  municipalities  shall   have   I 
ordinance   to   require  the  owners   or  operators   of   any   such   street   rail. 
watchmen  at  any  street  crossings,  intersections  or  corners  which  BUCfa   l  ■'•(?la- 

lation  or  council  may  deem  dangerous;  and  to  provide  for  the  proper  enfoi- 
such  ordinances  by  penalties  in  the  way  of  fine  or  imprisonment,  or  bot:  may 

be  imposed  upon  the  owner,  officer,  or  operator  of  such  street  railways  or  by  a  penalty 
of  not  exceeding  $100  per  day,  which  may  be  recovered  by  such  municipalities  in  a 
civil  suit  against  the  owners  or  operators  of  any  such  street  railway  failing  to  place 
such  watchman  as  may  be  required.     (April  16,   1892,  89  v.  346.) 

§  3443-1.  STREET  RAILROAD  ROUTE  IN  CINCINNATI  MADE  VALID.— 
That  in  all  cases  where  in  cities  of  the  first  grade  of  the  first  class  the  council  has 
heretofore,  by  ordinance,  established  any  street  railroad  route  and  declared  the  condi- 
tions upon  which  a  street  railroad  should  be  constructed  and  operated  upon  and  along 
such  route,  and  due  publication  of  a  notice  has  been  made  calling  for  proposals  to 
construct  and  operate  such  street  railroad  to  be  awarded  to  the  corporation,  individual 
or  individuals  that  should  agree  to  carry  passengers  thereon  at  the  lowest  rates  of 
fare,  and  the  proposal  of  a  bidder  who  obtained  and  filed  the  written  consents  of 
the  owners  of  the  majority  of  the  feet  front  of  property  on  each  street  on  the  line  of  the 
route  has  been  accepted  thereon,  and  an  ordinance  passed  granting  to  such  bidder  the 
franchise  to  construct  and  operate  such  street  railroad,  and  such  bidder  has  accepted 
the  samo  and  entered  into  a  written  contract  with  such  municipal  corporation  to  con- 
struct and  operate  such  street  railroad,  such  ordinance,  grant,  contract  and  franchise 
shall  be  deemed  and  held,  in  all  respects,  to  be  valid  and  binding,  notwithstanding 
the  submission  of  another  bid  at  such  letting  by  a  bidder  proposing  to  carry  passen- 
gers on  such  route  at  a  lower  rate  of  fare,  who  failed  and  neglected  to  obtain  and  file 
the  written  consent  of  any  of  the  property  owners  on  the  line  of  said  route.  (April 
10,  1891,  88  v.  303.) 

Constitutionality. 

See  Knorr  v.  Miller,  5  0.  C.  C.  609,  623  (1891);  s.  c.  3  C.  D.  207;  Cincinnati  \.  Cincinnati, 

etc.,  Ry.  Co.,  31  W.  L.  B.  308  (1894). 

§  3443-2.  AUTHORIZING-  MUNICIPAL  AUTHORITIES  Tf  GRANT  PERMIS- 
SION TO  EXTEND  TRACKS,  ETC.;  EARE  MUST  NOT  BE  INCREASED  —  In  cities 
of  the  first  grade  of  the  first  class  the  board  of  city  affairs  or  board  of  public  improve- 
ments, or  their  successors  in  oiace,  may,  by  resolution,  grant  permission  to  any  cor- 
poration, individual  or  company  owning  or  having  the  right  to  construct  any  street 
railroad,  to  extend  their  tracks  and  route  subject  to  such  provisions  of  sections  3437, 
3438,  3439,  3440,  3441,  3442  and  3443  of  the  Revised  Statutes  as  are  applicable  and 
not  in  conflict  herewith,  on  any  street  or  streets  when  such  board  may  deem  such 
extension  beneficial  to  the  public;  and  when  any  such  extension  is  made,  the  charge 
for  carrying  passengers  on  any  street  railroad  so  extended,  and  its  connections  made 
with  any  other  road  or  roads  by  consolidation  under  existing  laws,  shall  not  be 
increased  by  reason  of  such  extension  or  consolidation.     (April  10.  1891.  88  v.  303.) 

Constitutionality. 
See  Cincinnati  v.   Cincinnati,  etc..   Ry.  Co.,  31   W.   L.  B  See  gei 

-extensions,  §   2505,  notes. 

§  3443-3.  SCREENS  FOR  MOTORMEN.—  Every  electric  street  car  other  than 
trail  cars  which  are  attached  to  motor  cars,  shall  be  provided  during  the  months  of 
November,  December,  January,  February  and  March  of  each  year,  at  the  forward  end 

LAW   GOV.    PRIV.    COR. —  20. 


306 


Private  Corporations  in  Ohio. 


Railroad  Crossings,   etc.— Regulations  as  to,   §§  3443-4-3443-6. 


with  a  screen  constructed  of  glass  or  other  material,  which  shall  fully  and  completely 
protect  the  driver,  or  motorman,  or  gripman,  or  other  person  stationed  on  such  forward 
end  and  guiding  and  directing  the  motor  power  by  which  they  are  propelled,  from, 
wind  and  storm.     (April  20,   1893,  90  v.  220.) 

§  3443-4.  PENALTY;  DUTY  OF  PROSECUTING  ATTORNEY.— Any  person, 
agent  or  officer  of  any  association  or  corporation  violating  the  provisions  of  this  act 
shall,  upon  conviction,  be  fined  in  any  sum  not  less  than  $25  nor  more  than  $100  for 
each  day  each  car  belonging  to  and  used  by  any  such  person,  association  or  corpora- 
tion is  directed  or  permitted  to  remain  unprovided  with  the  screen  required  in  sec- 
tion one  (§  3443-3)  of  this  act;  and  it  is  hereby  made  the  duty  of  the  prosecuting 
attorney  of  each  county  in  this  state  to  institute  the  necessary  proceedings  to  enforce 
che  provisions  of  this  act.     (April  20,   1893,  90  v.  220.) 

Constitutionality. 

This  act  is  not  in  conflict  with  either  the  Ohio  or  United  States  Constitutions. —  State  v. 

Nelson,  52  Oh.  St.  88  (1894). 

§  3443-5.  REPAIR  OF  CROSSINGS  AT  INTERSECTING  STREET  RAILROADS; 
STOPPING  OF  CARS  AT  CROSSING. —  Where  the  tracks  of  two  street  railroads  cross 
each  other  or  in  any  way  connect  at  a  common  grade,  when  one  or  both  such  street 
railroads  use  other  than  horse  power  for  propelling  their  street  cars,  the  crossings 
shall  be  made  and  kept  in  repair  at  the  joint  expense  of  the  companies  owning  the 
tracks,  and  all  such  cars  used  on  said  street  railroads  shall  come  to  a  full  stop,  not 
nearer  than  ten  feet  nor  further  than  fifty  feet  from  the  crossing,  and  shall  not  cross 
until  the  way  is  clear;  and  when  two  or  more  cars  approach  the  crossing  at  the  same 
time  the  car  or  cars  on  the  road  first  built  shall  have  precedence.  (May  4,  1891,  88 
v.  581.) 


§  3443-6.  FULL  STOP  WHEN  APPROACHING  INTERSECTING  STEAM  RAIL- 
WAY, ETC. —  That  whenever  the  tracks  of  any  street  railroads  in  this  state  cross  the 
tracks  of  any  steam  railway  at  grade,  the  street  railway  company  operating  said  line 
of  cars  shall  cause  their  street-cars  to  come  to  a  full  stop  not  nearer  than  ten  feet  nor 
further  than  fifty  feet  from  the  crossing,  and  before  proceeding  to  cross  said  steam 
railway  tracks,  shall  cause  some  person  in  their  employ  to  go  ahead  of  said  car  or 
cars  and  ascertain  if  the  way  is  clear  and  free  from  danger  for  the  passage  of  said 
street-cars,  and  said  street  railroad  cars  shall  not  proceed  to  cross  until  signaled  so 
to  do  by  such  person  so  employed  as  aforesaid,  or  said  way  is  clear  for  their  passage 
ever  said  tracks.     (May  4,   1891,  88  v.  581.) 


Joint  liability. 

Where  the  car  is  not  stopped  and  the  gate- 
keeper is  negligent,  the  railroad  company  and 
the  street-car  company  are  both  liable. —  To- 
ledo, etc.,  Rv.  Co.  v.  Fuller,  17  0.  C.  C.  562 
(1894);   s.  c,  8  C.  D.  134. 

Horses  and   car  considered  as  one. 

Under  this  act  the  car  and  the  horses  at- 
tached to  it  are  to  be  considered  as  one  in 
calculating  the  distance  from  the  railroad 
track  at  which  the  street  car  is  required  to 
stop.— Toledo,  etc.,  Ry.  Co.  v.  Fuller,  17  0. 
C.  C.  562  (1894) ;  s.  c,  8  C.  D.  134. 

Collision  —  prima   facie   case. 

The  fact  of  a  collision  puts  the  company 
prima  facie  in  the  wrong,  and  the  burden  is 
on  it  to  show  that  the  injury  was  the  result 


of  an  accident,  and  that  it  could  not  have 
been  prevented  bv  the  exercise  of  reasonable 
care.—  Toledo,  etc.,  Ry.  Co.,  v.  Fuller,  17  0. 
C.  C.  562  (1894)  ;  s.  c.,.8  C.  D.  134. 

Duty  to  look  out  for  persons  getting  off 
or  on  car  at  such  stop. 

Where  a  car  is  stopped  in  compliance  with 
this  section,  the  operators  of  the  car  are  not 
required  as  a  matter  of  law  to'  look  before 
the  car  is  started  to  see  whether  any  one  is 
getting  off  or  on  the  car. —  Packard  v.  Toledo 
Traction  Co.,  22  0.  C.  C.  587   (1901). 

Failure   to  lower  gates. 

Failure  of  the  steam  railway  to  lower  the 
safety  gatos  does  not  relieve  the  street  railway 
company  from  the  duty  of  sending  a  man 
ahead  to  see  if  the  crossing  can  be  safely  made. 


Street  Railroad  I  Corpora 


>07 


Railways  Outside  of  Municipalities,  etc.,  8$  3443-7 


—  Cincinnati,  etc.,  Ry.  Co.  v.  Murray,  9  0.  C. 
C.  291   (1895);  s.  c,  G  C.  D.  413;  s.  c,  53  Oh. 

St.  570   (1895). 

Proximate    cause. 

The  injury  must  have  heen  directly  caused 
by  the  negligence. —  Cincinnati,  etc.,  Ry,  Co. 
v.  Murray,  53  Oh.  St.  570  (1895). 


Questions  for  court  and  jury. 

i  in  innal  i 
Oh.  St.  570  (188 

Duty   when   only   one    man   on    r.n. 

1  incinnati,  etc  ,  1       I       r.  Mui  i 
Oh.  st.  570  i  L895). 


§  3443-7.  PENALTIES. —  Every  person  in  charge  of  any  street-car  or  cars  who 
willfully  fails  to  comply  with  the  provisions  of  this  act,  and  fails  to  bring  said  car 
or  cars  which,  he  has  in  charge  to  a  full  stop,  or  causes  the  same  before  the  way  is 
clear,  or  signaled  so  to  do  to  cross  said  steam  railroad  tracks,  shall  be  personally 
liable  to  any  person  injured  by  reason  of  such  failure  as  aforesaid,  to  a  penalty  of  one 
hundred  dollars,  to  be  recovered  by  civil  action  at  the  suit  of  the  state  of  Ohio,  in  the 
court  of  common  pleas  of  any  county  wherein  such  crossing  or  connection  is,  and 
the  company  in  whose  employ  such  person  having  charge  of  said  car  or  cars  Is,  as 
well  as  the  person  himself  shall  be  liable  in  damages  to  any  person  or  persons  injured 
in  person  or  property  (having  charge  of  such  car  or  cars)  as  aforesaid.  (May  4, 
1891,  88  v.  581.) 


§  3443-8.  CONSTRUCTION,  ETC.,  OF  STREET  RAILROADS  OUTSIDE  OF 
MUNICIPALITIES. —  Companies  incorporated  under  section  3236  of  the  Revised 
Statutes  of  Ohio  for  such  purpose  may  construct,  maintain  and  operate  electric  street 
railroads  or  street  railroads  using  other  than  animal  power  as  a  motive  power  for 
the  transportation  of  passengers,  packages,  express  matter,  United  States  mail,  bag- 
gage and  freight  upon  the  highways  in  the  state  outside  of  municipalities  or  upon 
private  rights  of  way.     (May  10,  1902,  95  v.  539;  May  17,  1894,  91  v.  285.) 


Right  to  run  in  city. 

This  section  does  not  modify,  limit  or  repeal 
§§  3437  and  3438,  nor  define  a  different  kind 
of  street  railroad.  A  street  railroad  corpora- 
tion having  a  charter  to  construct  a  street 
railroad  within  and  without  a  city  or  village 
may,  under  a  grant  from  the  city  or  village, 
build  its  line  in  and  through  the  city  or  vil- 


lage.—  Hamilton  v.  < '.  &   B.,  I  'o.,  5 

V.   P.  457   (1898);  s.  c,  8  Dec.   174. 

Constitutionality. 

Sen  Dictz  v.  C.  &  M.  Tracti  V.  P. 

399  (1897)  ;   s.  c,  6  Dec.  513. 

Construction   of   section. 

See  opinion  of  Attorney-General,  39  W .  I..  B. 
113. 


§  3443-9.  OCCUPANCY  AND  USE  OF  PUBLIC  HIGHWAYS.— All  such  com- 
panies shall  have  power  to  occupy  and  use  for  their  tracks,  cars  and  necessary  fix- 
tures and  appliances,  the  public  highways  outside  of  cities  and  villages  with  the  con- 
sent of  the  public  authorities  in  charge  of  or  controlling  such  highways,  and  with  the 
written  consent  of  a  majority,  measured  by  the  front  foot,  of  the  property  holders 
abutting  on  each  of  such  highways.     (May  17,  1894,  91  v.  285.) 


Turnpike   company  cannot   consent. 

See  McMaken  v.  C.  &  H.  R.  B.  Co.,  5  N.  P. 
367   (1898);  s.  c,  5  Dec.  358. 

When  railroad   is   additional   servitude. 

The  construction  of  an  interurban  railroad 
of  T  rails  on  one  side  of  a  highway  creates 
an  additional  burden  similar   to  that  created 


by  a  steam  road,  and  an  abutting  owner  Efl 
entitled  to  an  injunction  pending  appropria- 
tion.—Schaaf  v.  Cleveland,  etc.,   Ry.  I 

Oh.    St.   215    (19  :  R.   R- 

Co.  v.  Keek.  23  C  C.  C. 

C.   &   M.  Traction  Co.,    t   V 

s.  c,  6  Pee.  513;  McMaken  v.  C.  8t  H.  Ry.  Co.. 

5   X.  P.  367    (1899)  ;   s.  c,  5  Deo.  ::" 


§  3443-10.  INTERURBAN  RAILROADS  GIVEN  RIGHT  OF  EMINENT 
DOMAIN.—  All  companies  organized  for  the  construction  and  operation  of  inter- 
urban railroads,  using  any  motive  power  other  than  animal  power,  shall,  when 
necessary  to  enter  upon  and  use  private  property  in  such  construction  and  operation 
outside  of  municipalities,  have  the  same  power  and  right  of  eminent  domain  as  is 


3C8 


Private  Corporations  in  Ohio. 


Consolidation  —  Inclined  Plane  Companies,  etc.,  §§  3443-11-3445. 

now  possessed  by  steam  railroad  companies.     (May   10,    1902,  95  v.    538;  May   17, 
1894,  91  v.  285.) 

Note. —  Prior  to  the  passage  of  this  act  it 
was  held  in  several  probate  courts  that  these 
■companies  could  not  appropriate  private  lands, 
except  where  it  was  impossible  to  use  a  high- 
way.—  Columbus,  etc.,  Ry.  Co.  v.  Cole,  47 
W.  L.  B.  547  (1902);  Columbus,  etc.,  Ry.  Co. 
v.  Marriott.  47  W.  L.  B.  357  (1902);  Toledo, 
etc.,  Ry.  Co.  v.  Griffin  (Lucas  Co.  Probate 
Court) '(1902). 


Extent  of  power, 

This  section  does  not  confer  unlimited  power 
on  street  railroad  companies. —  See  Columbus, 
etc.,  Ry.   Co.  v.  Cole,  47  W.  L.  B.  66   (1902). 


Pleading  and  proof. 

See  Columbus,  etc.,  Rv.   Co.  v.  Cole,  47 
L.  B.  66   (1902). 


W. 


§  3443-11.  LEASES,  PURCHASES  AND  TRAFFIC  ARRANGEMENTS.— Such 
companies  shall  have  power  to  lease,  purchase  or  make  traffic  arrangements  with  any 
other  street  railroad  company  as  to  so  much  of  its  tracks  and  other  property  as  may 
be  necessary  or  desirable  to  enable  them  to  enter  or  pass  through  any  city  or  village, 
upon  the  same  terms  and  conditions  applicable  to  other  street  railroads.  And  any 
existing  street  railroad  company  owning  or  operating  a  street  railroad  shall  receive 
the  cars,  freight,  packages  or  passengers  of  any  other  road,  upon  the  same  terms  and 
conditions  as  they  carry  for  the  general  public.     (May  17,  1894,  91  v.  285.) 


Right    to    appropriate    trackage. 

A  company  operating  under  this  act  has  the 
right  to  appropriate  trackage  under  §  3440. — 


State   ex   rel.   v.   Cincinnati,   etc.,   Rv.   Co.,    19 
O.  C.  C.  79  (1899). 


§  3443-12.  CONSOLIDATION. —  Such  street  railroad  companies  may  consolidate 
on  the  terms  and  conditions  applicable  to  the  consolidation  of  railroad  companies; 
provided,  however,  no  increase  of  fare  shall  be  allowed  on  any  street  railroad  route 
by  reason  of  such  consolidation.     (May  17,  1894,  91  v.  285.) 

§  3443-13.  REGULATIONS  AND  POWERS.— Such  companies  shall  be  subject 
to  the  same  regulations  now  provided  for  street  railroads,  in  so  far  as  the  same  are 
applicable,  and  shall  have  all  the  powers,  in  so  far  as  they  are  applicable,  that  other 
street  railroad  companies  have.     (May  17,  1894,  91  v.  285.) 

§  3443-14.  STREET  RAILROAD  IN  MANSFIELD  MAY  OPERATE  A  LIGHT 
AND  POWER  PLANT. —  The  council  of  any  city  which  at  the  last  federal  census 
had  or  which  at  any  subsequent  federal  census  may  have  a  population  of  not  less 
than  13,400  nor  more  than  13,600  may  grant  permission  to  any  corporation,  indi- 
vidual or  individuals  to  construct  and  operate  an  electric  power  and  light  plant  in 
connection  with  any  street  railroad  operated  by  them,  and  may  prescribe  the  terms  of 
constructing  and  operating  the  same,  and  such  cities  may  renew  any  such  grants  at 
their  expiration  upon  such  conditions  as  may  be  considered  conducive  to  the  public 
interests.     (April  29,  1891,  88  v.  447.) 

§  3444.  POWERS  OF  INCLINED  PLANE  RAILWAY  COMPANIES.— An 
inclined  plane  railway  company  may  construct,  operate,  and  maintain  an  inclined 
plane  railway,  for  the  conveyance  of  passengers  and  freight,  or  either,  with  such 
offices,  depots,  and  other  buildings  as  it  may  deem  necessary,  and  may  establish  and 
maintain  a  park  or  pleasure-grounds,  and  for  such  purpose  may  acquire  and  hold 
real  estate.     (April   12,   1876,  73  v.  229,  §  2.) 


Acts  construed. 

Cincinnati    v.   Cincinnati,    etc..   Rv.    Co.,   30 
W.   L.  B.  321    (1893);    Louisville  Trust  Co.  v. 


Cincinnati,  73  Fed.  716  (1896);  s.  c.  8  O.  F. 
D.  704:  Louisville  Trust  Co.  v.  Cincinnati,  76 
Fed.  296  (1896)  ;  s.  c,  10  O.  F.  D.  112. 


§  3445.  HOW  STREET  CROSSINGS  TO  BE  MADE.— When  the  part  of  the 
railway  of  such  company  which  is  operated  by  steam  power  crosses  a  public  street  or 
highway,  it  must  pass  either  over  or  under  such  street  or  highway,  and  shall  be  con- 
structed in  such  manner,  and  at  such  distance  above  or  below  the  same  as  not  to 
obstruct  the  ordinary  use  of  such  street  or  highway.    (April  12,  1876,  73  v.  229,  §  10.) 


PART   VI. 

SHIP  <  ANAL  <  ORPOB  \  I  EONS. 

§3445-1.     Power  to  construct,  etc..  and  operate  Bhip  canal. 

§3445-2.     Change  of  line,  etc..  into  or  through  adjoining  Btate. 

§  3445-3.     Rights  of  companies. 

§3445-4.    Occupancy  and  use  of  stream:   appropriation   of  necessary  Lands. 

§  3445-5.     Occupancy  and  use  of  public  way  or  public  grounds. 
§  3445-fl.     Compensation   for  land  taken. 
§  3445-7.     Issuing  of  bonds. 
§  3445-8.     Borrowing  money. 
§  3445-9.     Mortgage  or  pledge  securing  loans. 
§3445-10.  Increase  of  capital  stock;  limit. 
§  3445-11.  Principal  office. 

§  3445-12.  Securities  sold  to,  and  liability  of   directors. 
§  3445-13.    Consolidations. 

§  3445-14.  Provisions  governing  consolidations. 

§3445-15.  Application   of  laws   for  protection   of   property,   and   relation   to   officers 
employees,  and  police. 

§  3445-1.  Sec.  1.  POWER  TO  CONSTRUCT,  ETC.,  AND  OPERATE  SHIP-CANAL 
AND  NECESSARY  APPURTENANCES.— A  ship-canal  company,  now  existing  or 
hereafter  created,  may  lay  out,  construct,  maintain,  and  operate  with  any  kind  of 
■motive  power  a  ship-canal,  together  with  all  such  locks,  dams,  tow-paths,  branches, 
basins,  tunnels,  aqueducts,  feeders  to  supply  water  from  any  lakes  or  rivers,  reser- 
voirs, cuttings,  apparatus,  appliances,  and  machinery  as  it  may  deem  necessary,  be- 
tween the  points  named  in  the  articles  of  incorporation,  and  when  a  terminus  named 
in  the  articles  of  incorporation  is  upon  the  boundary  line  of  the  state,  section  3271  of 
the  Revised  Statutes  shall  apply  to  said  company.     (April  27.   1896.  92  v.  410.) 

§  3445-2.  Sec.  2.  CHANGE  OF  LINE,  ETC..  INTO  AND  THROUGH  ADJOINING 
STATE. —  Any  such  company  may  change  the  line  or  grade  of  its  canal  and  branches 
thereof,  and  either  of  the  proposed  termini  of  such  canal  and  branches,  in  the  manner 
and  subject  to  the  provisions,  conditions  and  limitations  contained  in  sections  3272, 
8273,  3274,  3275,  3276,  3277,  and  3278  of  the  Revised  Statutes,  which  said  sections 
are  hereby  made  applicable  to  ship-canal  companies,  and  may  extend  its  canal  and 
branches  thereof  into  and  through  any  adjoining  state,  under  the  regulations  which 
may  be  prescribed  by  such  adjoining  state;  and  the  rights,  powers  and  privileges 
of  such  company  over  such  extension,  in  the  construction  and  use  of  such  canal  and 
branches,  and  in  controlling  the  property  and  applying  the  money  and  assets  thereon, 
shall  be  the  same  as  if  such  canal  and  branches  were  built  wholly  in  this  state. 
(April  27,   1896,  92  v.  410.) 

§  3445-3.  Sec.  3.  RIGHTS  OF  COMPANY.—  Any  such  company  shall  have  the 
right  to  enter  upon  any  land  for  the  purpose  of  examining  and  surveying  the  lines 
of  its  canal  and  branches;  to  acquire  —  by  purchase,  appropriation,  or  otherwise,  all 
such  lands  as  are  necessary  and  proper  for  the  making,  preserving,  maintaining, 
operating  and  using  the  canals,  and  other  works  and  appliances  of  the  company;  to 
make,  maintain  and  alter  any  places  or  passages  over,  under,  or  through,  the  said 
canal  or  any  of  its  branches  and  connections;  to  relocate,  alter,  move,  divert,  rebuild, 
or  change  the  grade  of  any  bridge,  street,  highway,  turnpike,  road,  tramway,  rail- 

[309] 


310  Private  Corporations  in  Ohio. 

Ship  Canal  Companies,  §  3445-3. 

road,  pipe  line,  conduit,  or  other  avenue  of  transportation,  either  public  or  private; 
or  any  electric  telegraph  or  telephone  line,  or  electric  wire,  main,  or  conduit,  or  any 
water,  gas,  or  steam-pipe,  or  sewer,  drain,  culvert,  or  tunnel,  the  present  location  of 
which  may  be  or  lie  in,  upon,  across,  under,  or  contiguous  to  the  company's  intended 
ca.nal  or  works,  and  which  may  obstruct,  prevent  or  interfere  with  the  proper  con- 
struction, maintenance,  and  operation  thereof;  to  acquire,  by  purchase,  appropriation, 
or  otherwise,  any  and  all  lands  necessary  for  relocating  and  moving  any  of  the  struc- 
tures aforesaid;  to  obtain  by  purchase,  appropriation,  or  otherwise,  and  use,  during 
the  construction  and  operation  of  said  canal  and  its  branches,  from  the  rivers,  lakes, 
brooks,  streams,  watercourses,  reservoirs,  and  other  sources  of  water-supply,  adjacent 
or  near  to  any  such  canal,  or  its  branches,  water  sufficient  for  the  purpose  of  con- 
structing, maintaining,  operating  and  using  such  canal  and  its  branches  and  works, 
and  sufficient  to  establish  and  maintain  a  current  at  the  average  rate  of  three  miles 
per  hour  throughout  the  navigable  channels  of  such  canal;  to  control  and  regulate 
the  fluctuations  of  the  lakes,  rivers,  and  creeks  by  regulating  and  overflow  dams  and 
weirs;  to  raise  and  lower  the  water-surface  in  the  lakes  and  rivers;  to  control  and 
regulate  the  flood-waters  of  rivers  and  creeks  adjacent  to  such  canal  or  its  branches, 
by  directing  or  impounding  them  as  may  be  necessary;  to  divert  or  alter,  either 
temporarily  or  permanently,  the  course  of  any  river,  stream,  creek,  brook,  or  water- 
course where  the  same  is  necessary  to  the  making,  maintaining,  and  operating  of 
such  canal  and  its  branches;  to  erect,  maintain  and  operate  dams,  regulating  dams, 
weirs,  conduits,  channels,  diversion  channels,  cuttings,  ditches,  trenches,  tunnels, 
reservoirs,  basins,  aqueducts,  and  other  works  necessary  to  the  purposes  of  such 
company;  to  condemn,  appropriate,  purchase,  acquire,  and  remove  any  dam,  pier, 
wharf,  bridge,  causeway,  trestle,  wall,  embankment,  or  other  artificial  work  or  natural 
obstacle  which  obstructs,  interferes  with,  or  threatens  the  free  navigation,  or  use  and 
operation  and  maintenance  of  such  company's  canal  and  branches,  and  the  safe  and 
easy  entrance  and  exit  of  vessels  to  and  from  the  same;  to  construct,  maintain  and 
operate,  use,  lease  or  otherwise  dispose  of  terminals,  harbors,  wharves,  piers,  docks, 
elevators  and  warehouses  upon  said  canal,  or  upon  lakes,  adjoining  or  near  the  same 
or  connected  therewith  by  waterways,  natural  or  artificial;  to  lay  out  and  lease,  or 
otherwise  dispose  of  water-lots,  and  use,  lease,  sell  or  otherwise  dispose  of  water 
brought  by  or  for  the  said  canal,  and  produce,  lease,  and  supply,  or  otherwise  dispose 
of  hydraulic,  electric,  or  other  kinds  of  power  in  connection  with  the  works  of  such 
company;  to  acquire  and  use  and  dispose  of  steamers,  tugs,  boats,  barges,  and  other 
vessels  for  the  purposes  of  said  canal,  and  propel  vessels  of  all  kinds,  in  and  through 
the  said  canal  by  any  kind  of  power  and  force;  to  erect,  maintain  and  operate  such 
structures,  machinery  and  appliances  as  are  necessary  to  produce  the  force  and  power 
required  to  operate  such  canal  and  branches;  to  open,  cut  and  erect  such  ponds  and 
basins  for  the  laying  up  and  turning  of  vessels,  boats,  or  rafts  using  the  canal,  and 
at  such  portions  thereof  as  they  may  deem  expedient;  to  build  and  erect  such  dry- 
docks,  slips  and  machinery  therewith  for  the  hauling  out  and  repairing  of  such  ves- 
sels as  they  think  proper,  and  make  and  provide  apparatus  and  appliances  for  the 
raising  and  clearing  away  of  wrecked  or  sunken  vessels  and  for  the  floating  of  sunken 
and  grounded  vessels,  and  lease  and  hire  the  same  on  such  terms  as  they  deem  expe- 
dient, or  operate  the  same  by  their  servants  and  agents;  to  construct,  or  acquire  and 
maintain  and  operate  electric  telegraph  and  telephone  lines,  and  electric  light  poles, 
wires,  machinery  and  apparatus  for  the  purpose  of  the  economic  and  convenient  con- 
struction and  operation  of  such  canal  and  branches;  to  acquire,  by  license,  purchase, 
or  otherwise,  the  right  to  use  any  patented  invention  for  the  purpose  of  constructing 
and  operating  such  canal  and  branches,  and  to  again  dispose  of  the  same;  to  con- 
struct, make  and  do  all  such  matters  and  things  necessary  or  proper  for  the  making, 
completing  and  properly  maintaining  and  operating  such  canal  and  branches,  and 
carrying  out  in  other  respects  the  objects  of  sucb  company.  Provided,  that  whenever 
such  company  shall  find  it  necessary  to  relocate,  alter,  move,  divert,  rebuild  or  in  any 
manner  change  any  bridge,  street,  highway,  turnpike,  or  other  avenue  of  travel  or 


Pow 


311 


Ship  Canal  Companies,  §§  3445-1  3 


transportation,   either  public   or  private;    or   of  any  electric   tel<  ,one 

line,  or  electric  wire,  main,  or  conduit,  or  any  water,  gas,  oi 

drain,  culvert  or  tunnel  it  shall  cause  the  same  to  be  properly   r< 

with,  at  its  own  expense,  and  on  the  most  favorable  location  procurable,  and  v.it. 

least  possible  interruption  to  the  convenient  use  of  such  structure.     (A:  :  196, 

92  v.  410.) 


Power  of  appropriation. 

A  company  incorporated  to  construci  a  line 
of  canal  is  engaged  in  making  a  public  work, 
for  which  private  property   may   be  taken   a 
in  the  case  of  other  public  uses.  —  Willyard 
v.  Hamilton,  7  Ohio  (2nd  part  )  112  I  183 

Authorizing  abandonment  of  corporate 
power,  constitutional. 

A  special  act,  authorizing  a  canal  company 
to  abandon  a  portion  of  its  canal,  is  permis- 
sion to  surrender  corporate  power,  not  an  at- 


tempt   by    special    l<  gislal  ion 

ad  i-  therefon    nol 

«  it  li  Bed  ion  I .  art  icle  13 

Penna.  <  a  oal  Co.  \ .  <  ommi 
St.  II  (1871 

Abandonment  release*  from   liability. 

i  hi'  r   n  -  i  ha  rter,  it    was  i  he  d 
compa  n\  to  repa  ii  ovei   hij 
after  Buch  abandonmenl   it   v..i-  rel< 
i his  liability.  --  Penna.  '  anal  I 
sioners.  27  Oh.  St.  14   I  1875). 


§  3445-4.  Sec.  4.  OCCUPANCY  AND  USE  OF  STREAM;  APPROPRIATION 
OF  NECESSARY  LANES.  —  Such  company  may  enter  upon  and  into  and  occupy 
and  use  any  part  or  all  of  any  river,  creek  or  stream  upon  and  along  the  route  of  its 
canal  and  branches,  and  may  enter  upon  lands  on  the  route  adjoining  or  in  the  neigh- 
borhood of  its  canal  and  branches,  and  appropriate  so  much  thereof  as  may  be  deemed 
necessary  for  such  canal  and  branches,  including  all  buildings  and  improvements 
mentioned  in  section  3  (§  3445-3)  of  this  act,  materials  for  construction,  and  rights 
of  way  sufficient  to  enable  it  to  construct  and  repair  its  canal  and  branches.  (April 
27,  1896,  92  v.  410.) 

§  3445-5.  Sec.  5.  OCCUPANCY  AND  USE  OF  PUBLIC  WAY  OR  PUBLIC 
GROUND.  —  If  it  be  necessary  in  the  location  of  a  canal,  or  branches  thereof,  to 
occupy  any  public  road,  street,  alley  way  or  public  ground  of  any  kind  or  any  part 
thereof,  the  right  to  occupy  and  use  the  same  may  be  acquired  in  the  manner  and 
under  the  conditions  and  subject  to  the  restrictions  and  obligations  provided  and  con- 
tained in  section  3283  of  the  Revised  Statutes,  which  is  hereby  made  applicable  to 
ship-canal  companies.     (April  27,  1896,  92  v.  410.) 

§  3445-6.  Sec.  6.  COMPENSATION  FOR  LAND  TAKEN,  ETC.  —  No  appropria- 
tion of  property  to  the  use  of  such  company  shall  be  made  until  full  compensation 
therefor  is  made  in  money,  or  secured  by  deposit  of  money,  to  the  owner,  to  be 
assessed  by  a  jury  without  deduction  for  benefits  to  any  property-owner,  as  pre- 
scribed by  law.  Such  appropriation  cf  property  shall  be  made  according  to  the  pro- 
visions of  title  two  (2)  chapter  eight  (8)  of  the  Revised  Statutes,  and  the  acts 
amendatory  thereof  and  supplementary  thereto.     (April  27,  1896.  92  v.  410.) 

§  3445-7.     Sec.   7.     ISSUING  OF   BONDS.  —  A   company  may   issue   bonds,   con- 
vertible or  otherwise,  bearing  a  rate  of  interest  not  exceeding  seven  per  centum  per 
annum,  to   an  amount  not  exceeding  the  amount  of   its   capital   stock   actually   sub- 
scribed, for  one  or  more  of  the  following  purposes:  Completing  or  extending  its  canal, 
constructing    branch    canals,    constructing    necessary    buildings    or    improvements, 
enlarging  or  deepening  its  canal  or  branches,  paying  its  unfunded  debts,  or  red( 
ing  its  bonds;    and  it  may  secure  the  bonds  issued  for  such  purposes  by  mortg 
its  property,  or  otherwise,  by  complying  with  the  provisions  of  section  3286  of  the 
Revised  Statutes,  which  is  hereby  made  applicable  to  ship-canal  companies  and  t 
ship-canals.     (April  27,  1896,  92  v.  410.) 

§  3445-8.  Sec.  8.  BORROWING  MONEY.  —  A  company  may  borrow  money  on 
terms,  for  the  purposes  and  subject  to  the  conditions  and  restrictions  contained  in 
section  3287  of  the  Revised  Statutes.     (April  27,  1896.  92  v.  410.) 


312  Private  Corporations  in  Ohio. 


Ship  Canal  Companies,  £§  3445-9-3445-15. 


§  3445-9.  Sec.  9.  MORTAGE  OR  PLEDGE  SECURING  LOANS.  —  Such  mort- 
gage or  pledge  may  be  made  in  the  manner  provided  by  section  3288  of  the  Revised 
Statutes,  and  when  made  may  be  recorded  as  provided  in  section  3289  of  the  Revised 
Statutes,  and  when  so  recorded  shall  constitute  a  lien  as  in  said  section  3289  provided. 
(April  27,  1896,  92  v.  410.) 

§  3445-10.  Sec.  10.  INCREASE  OF  CAPITAL  STOCK;  LIMIT.  —  A  company 
may  increase  its  capital  stock  whenever  in  the  opinion  of  the  directors  such  increase 
is  desirable  and  necessary  to  the  purposes  of  the  company,  by  complying  with  the 
provisions  of  section  3308  of  the  Revised  Statutes,  and  such  increased  stock  may  be 
"  common  "  or  "  preferred,"  as  provided  by  and  under  the  conditions  and  restrictions 
named  and  contained  in  sections  3309  and  3309b  of  the  Revised  Statutes.  Provided, 
that  the  aggregate  amount  of  the  capital  stock  and  bonded  indebtedness  of  the  com- 
pany shall  never  exceed  the  sum  of  six  hundred  thousand  dollars  per  mile  of  its  main 
and  branch  canals.     (April  27,  1896,  92  v.  410.) 

§  3445-11.  Sec.  11.  PRINCIPAL  OFFICE.  —  Each  company  shall,  as  soon  as  con- 
venient after  its  organization,  establish  a  principal  or  general  office  on  (at)  some  point 
on  the  line  of  its  canal,  and  may  change  the  same  at  pleasure,  and  shall  give  public 
notice  of  such  establishment  or  change,  in  some  newspaper  published  on  its  line, 
within  this  state;  and  the  office  of  the  president,  secretary  and  treasurer  of  the  com- 
pany  shall  be  kept  at  such  principal  or  general  office,  or  at  some  other  point  on  the 
line  of  the  canal  within  the  state,  and  a  record  kept  there  of  all  the  proceedings  of 
the  company,  to  be  cpen  at  reasonable  hours  to  the  inspection  of  any  stockholders  of 
the  company.     (April  27,  1896,  92  v.  410.) 

§  3445-12.  Sec.  12.  SECURITIES  SOLD  TO,  AND  LIABILITY  OF,  DIRECT- 
ORS. —  The  provisions  of  sections  3313  and  3314  of  the  Revised  Statutes  shall  apply 
to  ship-canal  companies.     (April  27,  1896,  92  v.  410.) 

§  3445-13.  Sec.  13.  CONSOLIDATIONS.— When  the  canals  of  any  ship-canal 
companies  in  this  state  are  so  constructed  as  to  permit  the  passage  of  ships,  boats  or 
vessels  into  and  through  any  two  or  more  of  such  canals  continuously,  without  break 
or  interruption,  such  companies  may  consolidate  themselves  into  a  single  company; 
and  any  company  organized  in  this  state  for  the  purpose  of  constructing,  owning, 
maintaining  and  operating  a  ship-canal  to  the  boundary  line  of  the  state,  or  to  any 
point  either  in  or  out  of  the  state,  may  consolidate  its  capital  stock  with  the  capital 
stock  of  any  company  in  an  adjoining  state,  organized  for  a  like  purpose,  and  whose 
canal  has  been  projected  to  the  same  point,  where  the  several  canals  when  constructed 
will  form  a  continuov:  canal.     (April  27,  1896,  92  v.  410.) 

§   3445-14.     Sec.     14.     PROVISIONS     GOVERNING      CONSOLIDATIONS.— The 

consolidations  shall  be  made  in  accordance  with  the  provisions  of  sections  3331,  3382 
and  3383  of  the  Revised  Statutes,  and  the  consolidated  companies  shall  be  entitled 
to  all  the  rights  and  benefits,  and  be  subject  to  all  the  requirements  and  restrictions 
imposed  by  sections  3384,  3385,  3386,  3388,  3388a,  3390,  3391,  and  3392  of  the 
Revised  Statutes,  all  the  above  sections  are  hereby  made  applicable  to  ship-canal 
companies.     (April  27,   1896,  92  v.  410.) 

§  3445-15.  Sec.  15.  APPLICABILITY  OF  LAWS  FOR  PROTECTION  OF 
PROPERTY,  AND  RELATING  TO  OFFICERS,  AGENTS,  EMPLOYES  AND  POLICE. 

—  All  laws  for  the  protection  of  railroads  and  their  property,  and  relating  to  or  enforc- 
ing the  duties  and  obligations  of  officers,  agents  and  employes  of  railroad  companies, 
and  relating  to  the  appointment,  powers  and  duties  of  railroad  police,  shall  be  appli- 
cable to  the  canals,  property,  officers,  agents  and  employes  of  ship-canal  companies. 
(April   27,    1896,   92  v.   410.) 


PART  VII. 

UNION   DEPOT  CORPORATE  »NS. 

§  344G.  Who  may  file  article-;  of  incorporation. 

§3447.  The  articles  of  incorporation. 

§  344S.  Stock  owned  in  equal  proportion;  powers. 

§  3449.  Who  to  be  directors  of  the  company. 

§3450.  By-laws,  rules,  and  regulations. 

§3451.  Liability  of  the  several  companies. 

§3452.  Certain  laws  applicable  to  such  companies. 

§3453.  Power  to  borrow  money  and  issue,  secure,  and  sell  notes  or  bonds. 

§  3446.  WHO  MAY  FILE  ARTICLES  OF  INCORPORATION.  —  The  presidents 
of  two  or  more  railroad  companies  running  railroads  to  the  same  city,  town,  or  village, 
may,  by  the  consent  and  under  the  direction  of  their  respective  boards  of  directors, 
file  articles  of  incorporation  in  the  office  of  the  secretary  of  state,  for  the  purpose  of 
purchasing  depot  grounds,  and  locating,  constructing,  and  maintaining  a  common 
or  union  station-house  and  passenger  depot,  and  a  union  railroad  by  two  or  more 
tracks  connecting  the  railroads  of  such  companies  for  business  purposes.  (April  3, 
1868,  65  v.  63,  §  1;  S.  &  S.  122.) 

§  3447.  THE  ARTICLES  OF  INCORPORATION.  —  The  articles  of  incorporation 
shall  specify  — 

1.  The  name  assumed  by  such  company. 

2.  The  names  of  the  companies,  and  the  city,  village,  or  town  where  such  depot 
and  connection  tracks  are  proposed  to  be  constructed. 

3.  The  amount  of  capital  stock  necessary  to  obtain  a  site  and  construct  and  main- 
tain such  depot  and  tracks. 

The  articles,  signed  by  the  presidents  in  behalf  of  the  companies,  with  the  cor- 
porate seals  of  the  companies  annexed  thereto,  shall  be  forwarded  to  the  secretary  of 
state,  who  shall  record  and  preserve  the  same  in  his  office;  a  copy  thereof,  duly  cer- 
tified by  the  secretary  of  state,  shall  be  evidence  of  the  existence  of  such  company; 
and  thereafter  such  company  may  contract  and  be  contracted  with,  sue  and  be  sued, 
locate  and  take  releases  of  right  of  way  and  depot  grounds,  and  appropriate  so  much 
land  as  may  be  necessary  for  such  depot  and  tracks.  (April  3,  1868,  65  v.  63.  1 ; 
S.  &  S.  122.) 

§  3448.  STOCK  OWNED  IN  EQUAL  PROPORTION;  POWERS.  —  The  com- 
panies whose  boards  of  directors  authorize  the  filing  of  the  articles  of  incorporation, 
or  assent  thereto,  shall  each  be  held  to  own  and  be  liable  to  pay  an  equal  proportion 
of  the  capital  stock;  and  the  provisions  of  section  three  thousand  two  hundred  and 
eighty-one,  shall  be  applicable  to  such  company.  (April  3.  1868.  65  v.  63.  g  2;  S. 
&  S.  122.) 

§  3449.    WHO  TO  BE  DIRECTORS  OF  THE  COMPANY.  —  The  president  of  eac 
company  which  enters  into  such  arrangement  shall,  ex  officio,  be  a  director  in  the 
union  company,  unless  the  board  of  directors  of  such  company  appoint   some  o 
person  as  director;    all  questions  which  affect  pecuniary  liabilities  and  expend! 
shall  require  the  concurrence  of  two-thirds  of  all  the  directors;    all  officers.  agen' 
and  employes  of  the  union  company  shall  be  appointed  by  the  concurrence  of  all  the 
members  of  the  board,  and  may  be  discharged  by  any  two  members  thereof,  and  the 

[313] 


314. 


Private  Corporations  in  Ohio. 


Union  Depot  Companies,  !>§  3450-3453. 


board  shall  keep  a  record  of  its  proceedings,  which  shall  be  open  to  the  inspection  of 
the  stockholders  and  directors  of  the  companies.  (April  3,  1868,  65  v.  63,  §  3;  S.  & 
S.  122.) 


§  3450.  BY-LAWS,  RULES,  AND  REGULATIONS.  —  The  board  may  pass  by- 
laws, rules,  and  regulations,  not  inconsistent  with  the  charters  of  the  companies,  for 
its  government,  and  for  the  regulation  of  the  depot,  depot  grounds,  and  the  business 
thereof,  and  shall  appoint  such  officers  and  agents  as  may  be  necessary;  it  shall 
adopt,  and  post  conspicuously  in  the  passenger  house,  such  rules  and  regulations  as 
will  control  the  conduct  of  all  runners,  solicitors,  hackmen,  and  drivers  of  vehicles; 
and  the  officers  and  agents  of  the  company  shall  have  the  same  authority  to  arrest 
and  bring  to  justice  pickpockets,  thieves,  and  persons  who  violate  the  public  peace, 
and  persons  who  violate  any  such  rules  and  regulations  so  posted,  and  persons  who 
commit  crimes  and  misdemeanors  while  on  the  depot  grounds,  as  constables  have  by 
law  within  their  respective  townships.     (April  3,  1868,  65  v.  63,  §  3;    S.  &  S.   122.) 


May   grant    exclusive    right   to   transfer 
company. 

A  union  depot  company  may  grant  to  a 
transfer  company  the  exclusive  privilege  of 
standing  its  vehicles  upon  its  depot  grounds 
and  soliciting  customers  thereon:  and  a  regu- 
lation excluding  therefrom  all  others  engaged 
in  a  similar  business,  excepting  only  for  the 
purpose  of  delivering  passengers  or  of  calling 
for  persons  that  have  previously  engaged  them, 
is  reasonable.  —  Snyder  v.  Union  Depot  Co.. 
19  C.  C.  369  (1899);  s.  c.  10  C.  D.  645; 
reversing  7  X.  P.  04,  where  all  the  cases  are 


reviewed:    dismissed    in    Supreme    Court,    42 
Bull.  310  (1899). 

Ordinance      prohibiting      soliciting      at 
depot. 

A  city  ordinance  prohibiting  hackmen  from 
soliciting  patronage  on  any  railroad  platform 
or  railroad  ground  is  a  reasonable  and  proper 
regulation.  —  Aloerder  v.  Fremont.  19  C.  C. 
394   (1899)  :  s.  c.  10  C.  D.  501. 

See  also  State  v.  Brown.  7  X.  P.  133  (1S99) ; 
s.  c,  10  Dec.  28. 


§  3451.  LIABILITY  OF  THE  SEVERAL  COMPANIES.  —  The  several  companies 
represented  by  the  union  company  shall  be  jointly  liable  to  the  public,  and  all  per- 
sons who  contract  with  the  union  company,  for  all  contracts  made  and  damages  caused 
by  the  union  company;  and,  as  between  themselves,  shall  be  liable  to  each  other  in 
the  proportion  of  the  interest  of  each  in  the  union  property,  and  for  all  damages,  costs 
and  expenses  which  arise  from  the  fault  or  neglect  of  their  respective  officers  and 
employes.     (April  3,  1868,  65  v.  63,  §  4;   S.  &  S.  123.) 


§  3452.  CERTAIN  LAWS  APPLICABLE  TO  SUCH  COMPANIES.  —  All  laws  for 
the  protection  of  railroads  and  their  property,  and  relating  to  or  enforcing  the  duties 
and  obligations  of  officers,  agents,  and  employes  of  railroad  companies  to  the  public 
and  to  railroad  companies,  or  to  either,  shall  be  applicable  to  the  railroad  tracks, 
property,  officers,  agents,  and  employes  of  such  union  company.  (April  3,  1868,  65 
v.  63,  §  5;   S.  &  S.  123.) 

§  3453.  POWER  TO  BORROW  MONEY  AND  ISSUE,  SECURE  AND  SELL 
NOTES  OR  BONDS.  —  Any  such  company  shall  have  power  to  borrow  money  for  the 
purpose  of  raising  means  to  carry  out  the  powers  conferred  by  the  act  authorizing  the 
incorporation  of  union  depots  without  reference  to  the  amount  of  stock  of  such  com- 
pany, and  may  issue  coupon  or  other  bonds  payable  to  bearer,  bearing  interest  not 
exceeding  the  highest  contract  rate  of  interest  which  may  be  allowable  in  this  state, 
at  the  time;  such  interest  to  be  payable  semi-annually,  and  such  company  may  also 
mortgage  its  franchises,  property  and  revenues  of  every  kind,  then  owned  or  subse- 
quently to  be  acquired,  to  secure  the  payment  of  such  loan  and  interest,  or  of  such 
bonds  and  interest;  and  the  stockholders  of  such  company  may  guarantee  the  pay- 
ment of  any  notes  or  bonds  the  company  lawfully  issues,  and  it  may  dispose  of  the 
same  at  such  rate  of  premium  or  discount,  as  the  directors  may  deem  best  for  its 
interests.     (April  3,  1896,  92  v.  118;   May  13,  1868,  65  v.  191,  §  1;   S.  &  S.  123.) 


PART  VIII. 

TELEGRAPH  AND  TELEPHONE  CORPOl  VII' 

§  3454.  Powers  of  companies. 

§3455.  Power  of  telegraph  companies;  unlawful  to  contract  for  exclusivi   rigbl  ol 

§3456.  May  cuter  upon  any  appropriate  land. 

§3457.  Limitation  upon  such  authority. 

§3458.  When  the  land  to  be  appropriated  is  held  bj   a  corpora 

§3459.  When  such  land  is  held  by  a  railroad  company. 

§  341)0.  When  the  lands  lie  in  more  than  one  county. 

§3461.  How  right  to  use  public  ground  acquired. 

§3401-1.  Lines  of  electric  telegraphs  may  he  constructed  any  place  so  they  do  not  ii 
the  public. 

§3461-2.  County  commissioners  to  appoint  three  appraisers  for  dan;' 

§  3401-3.  Pay  of  appraisers. 

§3401-4.  Fine  and  punishment  for  injuring  the  lines. 

§  3401-5.  Mode  of  prosecution. 

§  3401-0.  Legislature   may  alter  act:    taxation. 

§3402.  Must  receive  and  transmit    dispatches  for  other  M 

§  3403.  When  to  forward  messages  by  mail. 

§  3404.  Agent  must  endorse  dispatch,  when. 

§3405.  Penalties  for  not  transmitting  or  delivering  messi 

§3400.  Penalties  against   persons  connected  with   companies. 

§3407.  Penalties  for  knowingly  transmitting  dispatches  forged,  etc. 

§  3407a.  Penalty  for  unlawfully  interfering,  etc..  with  telegraphic  or  telephonic  mi 
with  electric  light  of  electric  street  railway  property. 

§  340S.  When  and  how  telegraph  structures  may  he  removed. 

§  3409.  How  and  when  repair  of  structures  enforced. 

§3470.  How  and  when  telegraph  companies  may  consolidate. 

§  3471.  Chapter  applies  to  telephone  companies. 

§  3471a.  Electric  light  companies  and  power  and  automatic  package  carrier  compi  : 
sent  of  municipality,  etc. 

§  3471-1.  Subways  for  telephone  and  telegraph  wires  in  cities;  erection  of  poles;  penalti 

§  3471-2.  By  whom  consent  given. 

§3471-3.  Powers  of  electric  light  and  power  companies. 

§  3471-4.  Contracts  with  municipalities. 

§3471-4a.  Contracts  with  municipalities  for  furnishing  light   and  water;   Ii 

§  3471-5.  Validity  of  prior  contracts. 

§3471-6.  Subways  and  conduits  for  electric  wires,  etc..  in  Cincinnati. 

§3471-7.  Permission  for  construction  of.    etc.,   by    whom   granted    and   rule-   governing  con- 
struction. 

§3471-8.  Bond  for  restoration  of  streets,  etc..  board  of  improvements   to  fix  rental. 

§   3454.     POWERS    OF    COMPANIES.—  A   magnetic   telegraph   company   hereto- 
fore  or  hereafter  created  may  construct  telegraph  lines,   from  point   to  point,  a 
and  upon  any  public  road,  by  the  erection  of  the  necessary  fixtures,  including  pos 
piers,  and  abutments  necessary  for  the  wires:  but  the  same  shall  not  incommode  the 
public  in  the  use  of  such  road.     (May  1.  1852,  50  v.  274.  §  47;  S.  &  S.  299.) 


No  injunction  against  additional  wires. 

A  pnle  and  eight  wires  had  been  continu- 
ously' used  by  a  telegraph  companv  for  a 
period  of  nine  years  in  front  of  plaintiff's 
premises.      Held."   that    an    injunction    would 

[315] 


not  he  granted  restraining  the  from 

stringing  additional  wires,  but  plaintiff  must 
resort   to  his  remedv  for  damages. —  Wirth  v. 
Postal  Tel.  Co..  7  C.  C.  200     189 
C.  D.  001. 


316 


Private  Corporations  in  Ohio. 


Powers  —  Exclusive  Right  of  Way,  §  3455. 


Grant    to    string    unlimited    number    of  I  farm,   an   oral   license   from   a   tenrnt,    though 


wires  gives   right  to   license   others   to 
nse  poles. 

A  grant  to  a  corporation  to  erect  poles  and 
string  an  unlimited  number  of  wires  carries 
with  it  the  right  to  license  an  individual  to 
string  wires  on  such  poles,  and  the  wires 
strung  by  such  individual  are  not  such  an  ob- 
struction as  will  constitute  a  nuisance. — 
Newman  v.  Avondale,  31  W.  L.  B.  123. 

But  see  Tel.  Co.  v.  Toledo,  44  W.  L.  B.  238 
(1900). 

Condition  of   road,   etc.,  to   be   observed 
—  liability   for  negligence. 

Monahon  v.  Telephone  Co.,  7  N.  P.  95 
(1898);  s.  c,  9  Dec.  532. 

Telephone  poles   in  city   not   additional 
servitude. 

Reasonable  use  of  streets  of  a  city  for  tele- 
phone poles  and  wires  is  not  a  new  burden, 
entitling  the  abutting  owner  to  compensation. 
—  Auerbach  v.  Telephone  Co..  7  N.  P.  633 
(1900^;  s.  c,  9  Dec.  389:  reviewing  decisions 
and  modifying  Smith  v.  Teleer.  Co.,  2  C.  C. 
259  (1886);  s.  c,  1  C.  D.  457;  McLean  v.  El. 
Light  Co.,  9  W.  L.  B.  65  (1883). 

Poles   and  wires   create    additional   ser- 
vitude. 

See  Callen  v.  Columbus,  etc.,  Co.,  66  Oh.  St. 
166  (1902)  ;  Schaaf  v.  Cleveland,  etc.,  Ry.  Co., 
66  Oh.   St.  215    (1902). 

As    to    compensation    to    municipality. 

See  Zanesville  Telegraph  &  Tel.  Co.  v.  Zanes- 
ville,  45  W.  L.  B.  59  (1901). 

Telephone  poles  on  highway,  additional 
servitude. 

The  construction  of  a  telegraph  or  telephone 
line  upon  a  highway  is  a  new  and  additional 
servitude,  entitling  the  owner  to  compensa- 
tion.—Smith  v.  Tel.  Co.,  2  C.  C.  259  (1886); 
s.  c,  1  C.  D.  457 ;  Denver  v.  Telephone  Co.,  10 
Dec.  273  (1900).  See,  also,  McLean  v.  El. 
Light  Co.,  9  W.  L.  B.  65   (1883). 

Poles     unlawfully     erected     to     be     re- 
moved. 

When  a  company  constructs  a  line  during 
the  pendency  of  an  action  to  enjoin  them  from 
so  doing,  against  the  objection  of  the  owner, 
a  court  of  equity  will  order  the  same  to  be 
removed.— Smith  v.  Tel.  Co.,  2  C.  C.  259 
(1886);  s.  c,  1  C.  D.  457;  Denver  v.  Tel.  Co., 
10  Dec.  273   (1900). 

Instruction    to     servants    admissible    in 
mitigation   of   damages. 

In  an  action  for  wrongful  cutting  of  shade 
trees   on  a  highway  which  passes  through   a 


unauthorized,  and  the  instructions  of  the  com- 
pany to  its  servants  with  respect  to  the  man- 
ner of  trimming  trees  along  its  line,  are 
competent  to  defeat  exemplary  damages, 
though  incompetent  to  prevent  recovery  of  full 
compensation. —  Western  Union  Tel."  Co.  v. 
Smith,  45  W.  L.  B.  00   (1900). 

Conflicting     rights     of     telephone     and 
street-car  companies. 

The  dominant  purpose  for  which  streets  in 
a  municipality  are  dedicated  is  to  facilitate 
public  travel  and  transportation,  and  a  fran- 
chise granted  to  a  telephone  company  to 
operate  its  lines  along  such  street  is  subordi- 
nate to  the  rights  of  the  public  for  the  pur- 
poses of  travel  and  transportation. —  Railway 
Co.  v.  Telegraph  Ass'n,  48  Oh.  St.  390  (1891). 

Rights   of  telephone    company    subordi- 
nate. 

The  facts  that  a  telephone  company  oper- 
ated its  lines  upon  certain  streets,  prior  to 
the  operation  of  an  electric  street  railway 
thereon,  will  not  give  the  telephone  company 
a  right  paramount  to  that  of  the  public  to 
adopt  and  use  the  most  approved  mode  of 
travel  thereon;  and  if  the  operation  of  the 
electric  railway  disturbs  the  working  of  the 
telephone  system,  the  remedy  of  the  latter 
will  be  to  readjust  its  methods  so  as  to  meet 
the  conditions  created  by  the  operation  of 
such  electric  railway. —  Railway  Co.  v.  Tele- 
graph Ass'n,  48  Oh.*  St.  390   (1891). 

Right  to   string  wires  includes  right  to 
trim  trees. 

The  right  of  a  telephone  company  to  string 
wires  in  a  highway  includes  the  right  to  do 
the  necessary  trimming  of  trees  in  the  high- 
way, in  a  proper  manner,  without  first  giving 
the  landowner  an  opportunity  to  do  it. — 
Wyant  v.  Tel.  Co.,  44  W.  L.  B.  110  (1900). 

Company   cannot    confer   use   of   streets 
upon  another  company. 

A  company  having  a  permit  to  use  streets 
and  alleys  cannot,  under  cover  of  its  fran- 
chise, confer  the  right  to  use  such  streets  and 
alleys  upon  a  separate  company  without  con- 
sent of  the  city.— Tel.  Co.  v.  Toledo,  44  W. 
L.  B.  238    (1900). 

But  see  Newman  v.  Avondale,  31  W.  L.  B. 
123    (1893). 

As  to  cutting  trees  within  the  highway 
but  owned  by  abutting  owner. 

Daily  et  al.  v.  State,  51  Oh.  St.  348  (1894). 
See  note  to  State  ex  rel.  v.  Telephone  Co.,  36 
Oh.  St.   297.   under   §   3471. 

See  note  under  §  3456. 


§  3455.  POWERS  OF  TELEGRAPH  COMPANIES;  UNLAWFUL  TO  CONTRACT 
FOR  EXCLUSIVE  RIGHT  OF  WAY.— Any  such  company  may  construct,  own,  use 
and  maintain  any  line  or  lines  of  magnetic  telegraph  whether  described  in  its  original 
articles  of  incorporation  or  not,  and  whether  such  line  or  lines  are  wholly  within  or 


Telegraph  and  'I  i  u  pho  m    Corpi  >b 


317 


Appropriation  of   Property,         3456  3459. 


partly  beyond  the  limits  of  this  state,  and  may  join  with  any  •  •  ••  or  asso- 

ciation in  conducting,  leasing,  owning,  using  or  malnl 
such  terms  as  may  be  agreed  upon  between  the  directors  or  manager!  I  I 
companies;  and  such  companies  may  own  and  hold  any  interest  in  any  such  line  or 
lines  or  may  become  lessees  of  such  line  or  lines,  upon  such  terms  as  may  be  ag 
upon;  but  it  shall  be  unlawful  for  any  such  company  or  companies,   and  the  01 
or  owners  of  rights  of  way  to  contract  for  the  exclusive  use  thereof  for  telegra; 
purposes.     (April   15,   1880,  77  v.   264;  R.   S.    1880;  March  31,    1865.  62   v. 
S.   &  S.   154.) 

§  3456.  MAY  ENTER  UPON  ANY  APPROPRIATE  LAND.— Any  sudi  com- 
pany may  enter  upon  any  land,  whether  held  by  an  individual  or  a  corporation,  and 
whether  acquired  by  purchase  or  appropriation,  or  in  viitue  of  any  provision  in  its 
charter,  for  the  purpose  of  making  preliminary  examinations  and  surveys,  with  a 
view  to  the  location  and  erection  of  lines  of  magnetic  telegraph,  and  may  appropriate 
so  much  thereof  as  may  be  deemed  necessary  for  the  erection  and  maintenance  of  its 
telegraph  poles,  piers,  abutments,  wires,  and  other  necessary  fixtures,  and  for  sta- 
tions, and  the  right  of  way  over  such  lands  and  adjacent  lands  sufficient  to  enable  it 
to  construct  and  repair  its  lines     (March  31,  1865,  62  v.  72,  \   1 ;  S.  &  S.   153.) 


C.  &   St.   L.   R.    R.   Co.   el   al.,   B    N     P.    121 

(1900). 
Sei     !   6881    1. 

Proceedings    in    error,    time    for    taking. 
etc. 

See  C.  C.  C.  <S   St.  I.    I:-.    Co 
<  ....   22  o.  C.  C.  5.").-)    (1901). 


See  Smith  v.  Cent.  Dist.  Tel.  Co.,  2  C.  C. 
259  (1886);   s.  c,  1  C.  D.  475. 

Appropriation    along    right    of    way    of 
railroad;  damages. 

Nominal  damages  only  will  be  allowed  for 
the  condemnation  of  a  right  to  erect  poles  and 
wires  along  the  right  of  way  of  a  railroad 
company. —  Ohio  Postal  Tel.  Co.  et  al.  v.  C.  C. 

§  3457.  LIMITATION  UPON  SUCH  AUTHORITY.—  No  such  company  shall, 
without  the  consent  of  the  owner  thereof,  in  writing,  enter  a  building  or  edifice,  or 
use  or  appropriate  any  part  thereof,  or  erect  any  telegraph  pole.  pier,  or  abutment  in 
any  yard  or  inclosure  within  which  an  edifice  is  situate,  nor.  in  cases  not  provided 
for  in  section  three  thousand  four  hundred  and  sixty-one.  erect  any  telegraph  pole, 
pier,  abutment,  wires,  or  other  fixtures,  so  near  to  any  edifice  as  to  occasion  injury 
thereto,  or  risk  of  injury,  in  case  such  pole,  pier,  or  abutment  be  overthrown,  nor 
injure  or  destroy  any  fruit  or  ornamental  tree.  (March  31.  1865,  62  v.  72,  I; 
S.   &  S.   153.) 

See  Smith  v.  Cent.  Dist.  Tel.  Co.,  2  C.  C.  259  (18S6)  ;  s.  <•..  1  C.  D.   175  381-1. 

§   3458.     WHEN  THE   LAND   TO   BE  APPROPRIATED  IS   HELD  BY   A  COR- 
PORATION.— When  lands  sought  to  be  appropriated  for  lines  of  magnetic  teleg: 
are  held  by  a  corporation  incorporated  under  any  law  of  this  state,  whether  held  1 
purchase  or  in  virtue  of  any  appropriation  authorized  by  its  charter  or  by  any  1 
this  state,  the  right  of  the  company  to  appropriate  such  lands  shall  be  limited 
such  use  of  the  same  as  shall  not,  in  any  material  degree,  interfere  with  the  prac- 
tical uses  to  which  the  company  is  authorized  to  put  such  lands  under  its  charter; 
and  no  such  company  shall  erect  poles,  piers,  abutments,  wires,  or  other  neces 
fixtures,  in  such  close  proximity  to  any  other  line  of  magnetic  telegraph 
by  law  to  be  constructed  as  to  interfere  mechanically  with  the  practical  working  of 
such  telegraph.     (March  31,  1865,  62  v.  72.  §  2;  S.  &  S.   153.) 

Cited,  Ohio  Petal  Tel.  Co.  et  al.  v.  C.  C.  C.  ,1-  St.  L.  R.  R.  Co.  et  al.,  -  N.  P.  1 
§    3459      WHEN  SUCH  LAND   IS  HELD   BY  A   RAILROAD  COMPANY    -The 
right  of  such  company  to  use  lands  held  by  a  railroad  company,  for  the  permanent 
structures  of  such  telegraph,  shall  be  limited  to  the  land  which  lies  within  five  feet 


318  Private  Corporations  in  Ohio. 


Appropriation  of   Property,   §§  3460,  3461. 


of  the  outer  limits  of  the  right  of  way  of  the  railroad  company,  where  it  is  practicable 
to  erect  the  line  within  those  limits;  when  the  company  seeks  to  appropriate  lands 
that  lie  beyond  those  limits,  its  petition  must  set  forth  the  facts  showing  that  it  is 
impracticable  to  erect  such  line  within  said  limits,  and  designate,  either  by  a  survey 
and  map,  or  by  reference  to  monuments,  or  by  other  means  of  easy  identification,  the 
place  or  places  where  the  company  seeks  to  establish  the  line;  the  probate  court  shall, 
in  all  instances,  determine,  if  it  be  controverted  by  the  railroad  company,  whether 
the  erection  of  the  line  at  the  place  or  places  designated  will,  in  any  material  degree, 
interfere  with  the  practical  uses  to  which  such  railroad  company  is  authorized  to  put 
such  land;  and  if  the  court  is  satisfied  that  it  will  so  interfere,  it  shall  reject  the 
petition,  or  require  the  structure  to  be  erected  at  such  other  place  or  places  as  the 
court  shall  direct;  but  nothing  in  this  chapter  shall  be  so  construed  as  to  authorize 
any  company  to  appropriate  the  use  of  the  track  or  rolling-stock  of  any  railroad  com- 
pany for  the  purpose  of  transporting  poles,  materials,  or  the  employes  of  such  tele- 
graph company,  or  for  any  other  purpose  whatever.  (March  31,  1865,  62  v.  72,  §  3; 
S.  &  S.  154.) 

§  3460.  WHEN  THE  LANDS  LIE  IN  MORE  THAN  ONE  COUNTY.—  Proceed- 
ings to  appropriate  lands  to  the  use  of  a  company,  against  a  defendant  whose  adjoin- 
ing or  continuous  lands  lie  in  more  than  one  county,  may  be  instituted  in  any  county 
in  which  any  part  of  such  lands  lie,  and  the  damages  shall  be  assessed,  in  one  pro- 
ceeding, in  respect  of  all  such  lands  of  the  defendant  sought  to  be  appropriated, 
whether  lying  in  the  county  wherein  the  court  is  sitting,  or  in  other  counties. 
(March  31,  1865,  62  v.  72,  §  4;  S.  &  S.  154.) 

Cited,  Ohio  Postal  Tel.  Co.    et  al.  v.  C.  C.  C.  &  St.  L.  R.  R.  Co.  et  al..  8  X.  P.  121   (1900). 

§   3461.     HOW   RIGHT   TO    USE    PUBLIC    GROUND    ACQUIRED.— When    any 

lands  authorized  to  be  appropriated  to  the  use  of  a  company  are  subject  to  the  ease- 
ment of  a  street,  alley,  public  way,  or  other  public  use,  within  the  limits  of  any  city 
or  village,  the  mode  of  use  shall  be  such  as  shall  be  agreed  upon  between  the  munici- 
pal authorities  of  the  city  or  village  and  the  company;  and  if  they  can  not  agree,  or 
the  municipal  authorities  unreasonably  delay  to  enter  into  any  agreement,  the  pro- 
bate court  of  the  county,  in  a  proceeding  instituted  for  the  purpose,  shall  direct  in 
what  mode  such  telegraph  line  shall  be  constructed  along  such  street,  alley,  or  public 
way,  so  as  not  to  incommode  the  public  in  the  use  of  the  same;  but  nothing  in  this  sec- 
tion shall  be  so  construed  as  to  authorize  any  municipal  corporation  to  demand  or 
receive  any  compensation  for  the  use  of  a  street,  alley,  or  public  way,  beyond  what 
may  be  necessary  to  restore  the  pavement  to  its  former  state  of  usefulness.  (March 
31,  1865,  62  v.  72,  §  5;  S.  &  S.   154.) 


Not    applicable    to    electric-light    com- 
panies. 

Brush  v.  Jones  Bros.  Co.,  5  C.  C.  340,  345 
(1891);  s.  c,  3  C.  D.  168. 

Right   of   occupation   ceases   on   expira- 
tion of  agreement. 

The  right  to  occupy  the  streets  of  a  city  by 
a  telephone  company  is  conditional  upon  its 
agreeing  with  the  municipal  authorities  as  to 
the  mode  of  use;  or,  failing  so  to  agree,  upon 
the  direction  of  the  probate  court  as  to  the 
mode  of  use,  in  a  proceeding  instituted  for 
that  purpose:  and  such  agreement  or  direction 
is  inseparable  from  such  right,  and  such  right 
terminates  with  such  agreement  or  direction. 
—  State  ex  rel.  v.  Telephone  Co.,  11  C.  C.  55 
(1895);  s.  c,  5  C.  D.  311. 


Constitutional. 

Zanesville  Telegraph  Co.  v.  Zanesville,  64 
Oh.  St.  67  (1901).  See  also  Fitzsimmons  v. 
Cincinnati,  47  W.  L.  B.  171    (1901). 

Municipality  not  entitled  to  compensa- 
tion  exceeding   cost   of  repair,   etc. 

Municipality,  though  holding  fee  in  its 
streets,  has  no  proprietary  interests  in  them, 
which  entitle  it  to  compensation,  when  sub- 
jected to  an  authorized  additional  burden  by 
the  erection  of  a  telephone  line.  But  it  is 
entitled  to  compensation  sufficient  to  make 
repairs  rendered  necessary  by  such  additional 
burden.—  Zanesville  Telegraph  &  Tel.  Co.  v, 
Zanesville,  64  Oh.  St.  67   (1901). 

Power   of   court  to   enter   a  transfer   of 
franchise. 

See  Fitzsimmons  v.  Cincinnati,  47  W.  L.'B. 
171   (1901). 


Telegraph  and  'I  i  u  pho  i  <  orpora  i 


319 


Lines  of  —  Damages  from,  etc.,  gg  3461 


No  ouster  until  failure  to  agree. 

Where  an  agreemenl  between  the  oil 
a  telephone  company  as  to  the  mode  oi  use  of 
its  streets  has  expired  by  limitation,  the  city 
cannot  oust  the  company  from  the  occupancy 
•of  the-  streets  until  ii  is  made  to  appear  thai 
no  agreement  can  be  made,  and  thai  the  com- 
pany, after  such  failure  to  agree,  delays  un- 
reasonably to  apply  to  the  probate  courl  to 
fix  the  mode  of  use  of  such  streets. —  State 
ex  rel.  v.  Central  Union  Tel.  Co.,  14  C.  C.  273 
(1S97);   s.  c,  7   C.  D.  536. 


City  oannol   &m  rentals. 

\  city  cannot,  in 
to  Buch  use  of  i 
charged    thi 

instrumenl  isal    of    thi 

assenl    to  such   agreemenl    i- 
its  refusal  is  ool 
meaning    of    tl 
<  entral   Union  Tel.  <  o., 
s.  c,  7  <     D 

■i.  Smith  v.  <  enl     I 
259,  262     '-■  ,  1  C.  D 


§  3461-1.  Sec.  1.  LINES  OF  ELECTRIC  TELEGRAPHS  MAY  BE  CON- 
STRUCTED IN  ANY  PLACE  SO  THEY  DO  NOT  INCOMMODE  THE  PUBLIC  — 
Any  person  or  persons  may  be  and  are  hereby  authorized  to  construct  lines  of  electric 
telegraphs,  from  point  to  point,  upon  and  along  any  of  the  public  roads  and  high- 
ways, and  across  any  of  the  waters  within  the  limits  of  this  state,  by  the  erection  of 
the  necessary  fixtures,  including  posts,  piers,  or  abutments  for  sustaining  the  cords 
or  wires  of  such  lines;  provided,  that  the  same  shall  not  in  any  instance  be  so  con- 
structed as  to  incommode  the  public  in  the  use  of  said  roads  or  highways,  or  enda  i 
or  injuriously  interrupt  the  r.avigation  of  said  waters;  nor  shall  this  act  be  so  con- 
strued as  to  authorize  the  erection  of  any  bridge  across  any  of  the  waters  of  this  state. 
(February  8,   1847,  45  v.   34.) 

§  3461-2.  Sec.  2.  COUNTY  COMMISSIONERS  TO  APPOINT  THREE  AP- 
PRAISERS FOR  DAMAGE?. —  If  any  person  over  whose  land  said  lines  shall  pa  s. 
upon  which  such  posts,  piers,  or  abutments  shall  be  placed,  shall  consider  himself 
aggrieved  or  damaged  thereby  it  shall  be  the  duty  of  the  county  commissioners  of 
the  county  in  which  such  lands  are,  on  application  of  such  person,  to  be  made  within 
three  months  after  the  erection  of  such  posts,  piers,  or  abutments  on  his  lands,  to 
appoint  three  discreet,  disinterested  persons  as  appraisers,  who  shall,  before  they 
enter  upon  the  duties  of  their  appointment,  severally  take  an  oath  or  affirmation, 
before  some  person  authorized  to  administer  oaths,  faithfully  and  impartially  to  per- 
form the  trust  and  duties  required  of  them  by  this  act;  and  it  shall  be  the  duty  of 
said  appraisers,  or  a  majority  of  them,  on  view,  to  make  a  just  and  equitable  np- 
praisal  of  all  the  loss  or  damage  sustained  by  the  applicant,  by  reason  of  said  lines, 
piers,  posts,  and  abutments;  duplicates  of  which  appraisal  shall  be  reduced  to  writing 
and  signed  by  said  appraisers,  or  a  majority  of  them,  one  copy  of  which  shall  be  de- 
livered to  the  applicant,  and  the  other  to  the  owners  or  agent  of  said  electric  tele- 
graph lines,  on  demand.  And  in  case  said  appraisers  shall  assess  any  damages  to  said 
applicant,  the  said  owners  shall  pay  to  said  applicant  the  amount  thereof,  together 
with  the  costs  of  said  appraisers;  but  if  said  appraisers  shall  award  that  said  appli- 
cant has  sustained  no  damages  or  loss,  the  said  applicant  shall  pay  the  costs  of  said 
appraisers.     (February  8,  1847,  45  v.  34.) 

§  3461-3.  Sec.  3.  PAY  OF  APPRAISERS. —  The  appraisers  aforesaid  shall 
each  be  entitled  to  have  and  receive,  for  their  services,  two  dollars  for  each  and  every 
day  when  so  actually  employed.     (February  8,  1847.  45  v.  34.) 

§  3461-4.  Sec.  4.  FINE  AND  PUNISHMENT  FOR  INJURING  THE  LINES.— 
Any  person  who  shall  unlawfully  and  intentionally  injure,  molest,  and  destroy  any 
of  said  lines,  posts,  abutments,  or  the  materials  or  property  belonging  thereto,  shall. 
on  conviction  thereof,  be  deemed  guilty  of  a  misdemeanor,  and  be  punished  by  fine. 
not  exceeding  five  hundred  dollars,  or  imprisonment  in  the  penitentiary  not  exceed- 
ing one  year,  or  both,  at  the  discretion  of  the  court  having  cognizance  thereof.  (Feb- 
ruary 8,  1847,  45  v.  34.) 

§  3461-5.  Sec.  5.  MODE  OF  PROSECUTION.— Prosecutions,  under  the  proced- 
ing  section,  shall  be  by  indictment  in  the  court  of  common  pleas.  (February  8.  1847, 
45  v.  34.) 


320 


Private  Corporations  in  Ohio. 


Messages,  Regulations  as  to,  SS  3461-6-3463. 


§  3461-6.  Sec.  6.  LEGISLATURE  MAY  ALTER  ACT;  TAXATION.— The  leg- 
islature may  at  any  time  alter,  modify,  or  repeal  this  act,  and  the  stock  or  value 
invested  in  said  lines  of  electric  telegraph  shall  be  subject  to  taxation,  like  other 
property  in  this  state.     (February  8,  1847,  45  v.  34.) 


§  3462.  MUST  RECEIVE  AND  TRANSMIT  DISPATCHES  EOR  OTHER  LINES. 
—  Every  company,  incorporated  or  unincorporated,  operating  a  telegraph  line  in  this 
state,  shall  receive  dispatches  from  and  for  other  telegraph  lines;  and  from  or  for 
any  individual;  and  on  payment  of  its  usual  charges  for  transmitting  dispatches  as 
established  by  the  rules  and  regulations  of  the  company,  shall  transmit  the  same 
with  impartiality  and  good  faith,  under  a  penalty  of  one  hundred  dollars  for  each 
case  of  neglect  or  refusal  so  to  do,  to  be  recovered  with  cost  of  suit,  by  civil  action  in 
the  name  and  for  the  benefit  of  the  person  or  company  sending  or  forwarding  or  desir- 
ing to  send  or  forward  the  dispatch.  (April  15,  1830,  77  v.  264;  R.  S.  1880;  March 
31,   1865,  62  v.  72,   §  8;  S.  &  S.   155.) 


As  to  telephones,  see  note  to  §   3471. 

Cannot     provide     against     damages     re- 
sulting  from   negligence. 

While  a  telegraph  company  may,  by  special 
agreement  or  by  reasonable  rules  and  regula- 
tions, limit  its  liability  to  damages  for  errors 
or  mistakes  in  the  transmission  and  delivery 
of  messages,  it  cannot  stipulate  or  provide  for 
immunity  from  liability,  where  the  error  re- 
sults from  its  own  negligence;  such  a  stipula- 
tion is  contrary  to  public  policy  and  void. — 
Telegraph  Co.*  v.  Griswold,  37  Oh.  St.  301 
(1881);  Hord  v.  Telegraph  Co.,  3  W.  L.  B. 
147    (1878). 

Burden  on  company  to  show  absence  of 
negligence. 

Where,  in  an  action  against  the  company 
for  damages  resulting  from  an  inaccurate 
transmission  of  a  message,  such  inaccuracy  is 
made  to  appear,  the  burden  of  proof  is  upon 
the  company  to  show  that  the  mistake  re- 
sulted without  fault  or  negligence  on  its  part. 
—  Telephone  Co.  v.  Griswold,  37  Oh.  St.  301 
(1881). 

Liability   to    addressee   for  nondelivery, 
damages. 

See  Barrack  v.  Postal  Tel.  Co.,  12  Dec.  ,8 
(1899). 


Sections  3462  and  3463  construed. 

Sections  3462  and  3463  are  penal,  and  must 
be  strictly  construed.  The  sender  is  the  per- 
son whose  name  is  signed  to  the  message;  the 
one  desiring  to  send  is  the  one  presenting  the 
same  for  transmission;  the  one  forwarding 
has  reference  to  the  telegraph  company  who 
forwards  it  upon  its  delivery  from  another 
company. —  Kester  v.  Telegraph  Co.,  8  C.  C. 
236  (1894)  ;  s.  c,  4  C.  D.  410. 

No  damages  for  mental  suffering  alone. 

Damages  cannot  be  recovered  for  mental 
pain  and  suffering,  because  of  negligence  in 
failing  to  transmit  a  message,  unless  accom- 
panied with  pecuniary  loss  or  physical  injury. 
—  Kline  v.  Tel.  Co.,  3  N.  P.  143 '(18%);  s.  c., 
4  Dec.  224;  Morton  v.  Tel.  Co.,  53  Oh.  St.  431 
(1895)  ;  Kester  v.  Tel.  Co.,  S  C.  C.  236  (1S94). 
See,  also,  decision  bv  Taft.  J..  U.  S.  C.  C.  29 
W.  L.  B.  259  (1893);  s.  c,  55  Fed.  603;  70 
F.   D.  545,  to  the  same  effect. 

See  note  to  §  3465. 

Mere    delay   not   within    this    section. 

A  recovery  for  mere  delay  is  not  authorized 
by  this  section  or  §  3265  providing  for  trans- 
mission of  messages  with  impartiality  and 
good  faith  and  in  the  order  in  which  they 
are  received. —  Hearn  v.  Western  Union  Tel. 
Co.,   73  N.   Y.  Supp.    1077    (1901). 


§  3463.  WHEN  TO  FORWARD  MESSAGES. —  When  the  person  who  sends  a 
dispatch  desires  to  have  it  forwarded  over  the  lines  of  other  telegraph  companies, 
whose  termini  are  respectively  within  the  limits  of  the  usual  delivery  of  such  com- 
panies, to  the  place  of  final  destination,  and  tenders  to  the  first  company  the  amount 
of  the  usual  charges  for  the  dispatch  to  the  place  of  final  delivery,  the  company 
shall  receive  the  same,  and,  without  delaying  the  dispatch,  shall  pay  to  the  succeeding 
line  the  necessary  charges  for  the  remaining  distance;  and  the  succeeding  line  chall 
accept  the  same,  and  forward  the  dispatch  in  the  same  manner  as  if  the  sender  had 
applied  to  it  in  person,  and  paid  the  usual  charges,  and  for  the  omission  so  to  do  it 
shall  be  liable  to  a  like  penalty,  as  provided  in  the  last  section.  (March  31,  1865, 
62  v.  72,  §  8;  S.  &  S.   155.) 

See  note  to  preceding  section. 


Telegraph  and  'I "i.i.i  phoni    l  i  irpob       i  321 


Messages,  Regulations  as  to,   ;     3464-3 


§    3464.     AGENT   MUST   INDORSE   DISPATCH,    WHEN.—  \V 
made  to  any  such  company  to  send  a  dispatch,   the  office i 
appointed  by  the  company  to  receive  dispatches  at  thai 
cant,  and,  if  required  by  him,  write  upon  the  dispatch,  that  the  Lin 
ing  order,  or  that  the  dispatches  on  hand  for  transmission   will   Oi  .>•  io 

that  the  dispatch  offered  can  not  be  transmitted  within  the  time  reqi 
are  so;  and  for  an  omission  so  to  do,  or  for  intentionally  giving  fa. 
the  applicant  in  relation  to  the  time  within  which  the  dispatch  offered   mi 
such  officer,  agent,  clerk,  or  servant,  and  the  company  by  which  In    .  hall 

incur  the  penalty  provided  in  section  thirty-four  hundred  and  sixty-two.     (M 
1865,  62  v.  72,  §  8;  S.  &  S.  155.) 

§  3465.  PENALTIES  FOR  NOT  TRANSMITTING  OR  DELIVERING  MES- 
SAGE.—  Every  telegraph  company,  incorporated  or  unincorporated,  opera- 
telegraph  line  in  this  state,  shall  transmit  and  deliver  all  dispatches  in  the  ord- 
which  they  are  received  for  transmission  or  delivery,  under  the  like  penalty  of  one 
hundred  dollars,  as  provided  in  section  thirty-four  hundred  and  sixty-two;  but  ar- 
rangements may  be  made  with  the  proprietors  or  publishers  of  newspapers  fo: 
transmission,  for  the  purpose  of  publication,  of  intelligence  of  general  and  public 
interest,  out  of  its  regular  order,  and  dispatches  by  officers  of  the  state  or  the  United 
States,  on  public  business,  may  have  preference  over  all  private  business,  when  the 
public  interest  requires  such  preference;  no  company  shall  be  required  to  deliver  dis- 
patches at  a  greater  distance  from  the  station  at  which  they  are  received  than  its 
published  regulations  require;  and  if  an  applicant  direct  a  dispatch  to  be  mailed  at 
the  place  of  delivery,  and  offer  to  pay  the  necessary  postage  thereon,  the  company 
shall  affix  the  necessary  postage  stamp,  and  mail  the  dispatch  in  time  for  the  first 
mail  that  departs  after  such  dispatch  is  received  at  the  office  of  delivery,  and  for  the 
omission  so  to  do  the  company  shall  be  liable  to  a  like  penalty  as  provided  in  section 
thirty-four  hundred  and  sixty-two.     (March  31,  1865,  62  v.  72,  §  9;  S.  &  S.   155  ) 

Failure    to    deliver  —  measure    of    dam- 


ages. 

In  case  of  failure  to  deliver  a  telegraphic 
message,  the  company  is  only  liable  for  such 
damages  as  naturally  flow  from  the  breach  of 
contract,  or  such  as  may  fairly  be  supposed 
to  have  been  within  the  contemplation  of  the 
parties  at  the  time  the  contract  was  made. 
Bank  v.  Tel.  Co.,  30  Oh.  St.  555  (1876); 
Elden  v.  Tel.  Co.,  10  W.  L.  B.  28   (1SS3). 

Proximate   cause. 

If  the  company  is  in  default,  but  its  default 
is  made  mischievous  to  a  plaintiff  only  by  the 
operation  of  some  other  intervening  cause, 
such  as  the  dishonesty  of  a  third  person,  the 
rule,  "causa  proxima  non  remota  spectatur," 
applies,  and  the  company  cannot  be  made  re- 


sponsible for  the   1"--   occasioned   by    tl 
of  such  third  party.-     Bank  v.  Tel.  I 

Sr.  555    (1S76). 

Company  is  liable  where  message   indi- 
cates on  its  face  importance  of  prompt 
delivery. 
Western  Union  Tel.  Co.  v.  Porter,  33  W.  L. 

B.  300   '  L895). 
See  26   W.    L.   B.    138,  where  authoritii 

subject   are  colled   d. 

Must  transmit,  without  preference. 

Messages  musl   be  transmitted  in  the 
of  time  they  are  received,  and  where  mess 
are   willfully  delayed,  and  preferena 
another,    liberal    damages    will 
Davis  v.  Tel.  Co.,  1  <  in.  Sup.  Ct.  I 

See  oote  to  §  3462. 


*  3466  PENALTIES  AGAINST  PERSONS  CONNECTED  WITH  COMPANIES. 
-Any  person  connected  with  a  telegraph  or  messenger  company,  incorporated 
unincorporated,  operating  a  line  of  telegraph,  or  engaged  in  the  business  of  receiving 
and  delivering  messages  in  this  state,  in  any  capacity,  who  wilfully  divulges  the  con- 
tents, or  the  nature  of  the  contents  of  a  private  communication  entrusted  to  him  for 
transmission  or  delivery,  or  who  wilfully  refuses  or  neglects  to  transmit  or  deliver 
the  same,  or  wilfully  delays  the  transmission  or  delivery  of  the  same,  or  who  wilfully 
forges  the  name  of  the  intended  receiver  to  any  receipt  for  any  such  message  cr  com- 
munication, or  article  of  value  entrusted  to  him  by  said  company  with  a  J,w  to 
injure,  deceive  or  defraud  the  sender  or  intended  receiver  thereof,  or  any  such  tele- 

LAW    GOV.    PRIV.    COR. —  21. 


322  Private  Corporations  in  Ohio. 


Messages  —  Electric  Wires,  Disturbing,  etc.,  §§  3467,  3467a. 


graph  or  messenger  company,  or  to  benefit  himself  or  any  other  person,  shall  be 
imprisoned  in  the  county  jail  not  exceeding  three  months,  or  fined  not  exceeding  five 
hundred  dollars,  at  the  discretion  of  the  court.  (April  14,  1900,  94  v.  209;  March 
31,  1865,  62  v.  72,  §  10;  S.  &  S.  156.) 

§  3467.  PENALTIES  FOR  KNOWINGLY  TRANSMITTING  DISPATCHES 
FORGED,  ETC. —  A  person  who  knowingly  transmits  by  a  telegraph  line  any  false 
communication  or  intelligence,  with  intent  to  injure  any  person,  or  to  speculate  in 
any  article  of  merchandise,  commerce,  or  trade,  or  with  intent  that  another  may 
do  so,  or  knowingly  sends  or  delivers  a  dispatch  that  is  forged,  or  not  authorized  by 
the  person  whose  name  purports  to  be  signed  thereto,  shall  be  liable  to  the  same 
penalty  as  is  provided  in  section  thirty-four  hundred  and  sixty-two.  (March  31, 
1865.  62  V.  72,  §   11;  S.  &  S.  156.) 

§  3467a.  PENALTY  FOR  UNLAWFULLY  INTERFERING,  ETC.,  WITH  TELE- 
GRAPHIC OR  TELEPHONIC  MESSAGES  OR  WITH  ELECTRIC  LIGHT  OR  ELEC- 
TRIC STREET  RAILWAY  PROPERTY. —  Whoever  shall  wilfully  and  maliciously 
cut,  break,  tap,  or  make  any  connection  with,  or  read,  or  copy  by  the  use  of  telegraph 
or  telephone  instruments  or  otherwise  in  any  unauthorized  manner,  any  telegraphic 
message  or  communication  from  any  telegraph  or  telephone  line,  wire  or  cable,  so> 
unlawfully  cut  or  tapped  in  this  state,  or  make  unauthorized  use  of  the  same,  or  who 
shall  wilfully  and  maliciously  prevent,  obstruct,  or  delay,  by  any  means  or  contriv- 
ance whatsoever  the  sending,  conveyance,  or  delivery,  in  this  state,  of  any  unauthor- 
ized telegraphic  message  or  communication  by  or  through  any  telegraph  or  telephone 
line,  cable  or  wire  under  the  control  of  any  telegraph  or  telephone  company  doing 
business  in  this  state;  or  who  shall  wilfully  or  maliciously  injure  or  destroy  or  in- 
tentionally permit  to  be  injured  or  destroyed,  or  disconnect,  displace,  cut,  break,  tap, 
ground  or  make  any  connection  with  or  in  any  way  wilfully  and  maliciously  inter- 
fere with  any  of  the  poles,  cable  or  wires  legally  erected,  put  or  strung,  electrical 
apparatus,  applicance  or  machinery  of  any  kind,  used  in  the  construction  of  or  in 
the  operating  of  any  electrical  street  railway,  or  electric  light  plant,  or  plant  used  in 
the  producing  or  generating  electric  power  in  this  state;  or  who  shall  wilfully  or  mali- 
ciously injure  or  destroy  or  intentionally  permit  to  be  injured  or  destroyed  any  meter, 
pipe,  conduit,  wire,  line,  post,  lamp,  burner,  heater,  machine,  motor  or  other  appliance 
or  apparatus  whatsoever  belonging  to  a  company  engaged  in  the  manufacture  or  sale 
of  electricity  for  light,  heat,  power  or  other  purposes,  or  who  shall  wilfully  or  ma- 
liciously prevent  by  any  means  or  device  whatsoever,  any  electric  meter  belonging 
to  any  corporation  furnishing  electric  current  for  light,  heat,  power  or  other  purposes 
from  duly  registering  the  quantity  of  electricity  supplied  by  said  company  or  in  any 
way  interferes  with  the  proper  action  or  just  registration  by  said  meter  in  register- 
ing the  quantity  of  electricity  passing  through  said  meter  or  alter  the  index  in  such 
meter  or,  without  the  consent  of  such  company,  wilfully  or  maliciously  divert  any 
electric  current  from  any  wire  of  such  company,  or  otherwise  wilfully  or  maliciously 
uses  or  causes  to  be  used  without  the  consent  of  such  company  any  electricity  manu- 
factured or  distributed  by  such  company;  or  whoever,  being  a  customer  of  said  elec- 
tric light  company  and  having  in  his  possession  or  under  his  control,  a  meter  belong- 
ing to  said  company,  wilfully  permits  any  other  person,  unlawfully  and  without  con- 
sent of  said  company,  to  disconnect,  change,  alter  or  interfere  with  the  wires  run- 
ning into  said  meter,  so  as  to  divert  the  electric  current  and  prevent  said  meter  from 
duly  registering  the  quantity  of  electricity  supplied  by  said  company;  or  who  shall 
wilfully  or  maliciously  aid,  agree  with,  employ  or  conspire  with  any  other  person  or 
persons  to  do  any  of  the  aforementioned  unlawful  acts  shall  be  deemed  guilty  of 
felony  and  shall  be  punishable  by  a  fine  of  no  more  than  $1,000  nor  less  than  $50, 
or  by  an  imprisonment  in  the  penitentiary  for  a  period  of  not  less  than  one  year  nor 
more  than  three  years,  or  by  both  fine  and  imprisonment  within  the  limits  herein- 
before specified,  at  the  discretion  of  the  court.      Prosecutions  under  this   act  shall 


Telegraph  and  Telephoni  Corporatio         323 


Repairs  —  Consolidation  —  Other   Electric    Compan 


be  by  indictment  in  any  court  having-  criminal 

101;  April  27,  1893,  90  v.  346;  March  15,   1892,  89  v.    1" 

§   3468.     WHEN  AND  HOW  TELEGRAPH  STRUCTURES  MAY   I. 
—  If,  at  any  time  after  the  erection  of  a  line  of  magnetic  telegraph  up 
by  a  corporation,  the  corporation  have  occasion  to  use  the  Land   a 
graph  pole,  pier,  abutment,  or  other  fixture  has  been  erected,  for  any  ol  .ones 

authorized  by  its   charter,   the   company  shall   remove  such   pole,   p 
fixture,  to  such  convenient  place  as  may  be  designated  by  the 
the  use  of  the  ground,  upon  reasonable  notice,  given  in  writ  ]  i 
in  such  new  place,  so  as  not  to  interfere  with  the  practical  uses  to  v 
tion  is  authorized  to  put  such  land;  and  if  it  is  impracticable  to  erect  a 
netic  telegraph   upon  the   lands  of   such   corporation,   in   consequence  ol 
which  the  corporation  put  the  lands,  the  telegraph  company  may  appro;, 
ing  lands,  by  a  separate  proceeding  for  that  purpose.     (March  31,  181 
S.  &  S.   156.) 

Cited,  Ohio  Postal  Tel.  Co.  el  al.  v.  C.  C.  I  .  &  St.  L.  Ry.  I  ...  i  I  al.,  8  \.  P.  121 

§  3469.     HOW  AND   WHEN  REPAIR   OF   STRUCTURES   ENFORCED.— If.   at 
any  time  after  the  erection  of  such  telegraph  line  on  the  lands  of  a  corporation,  the 
corporation  apprehend  danger,  or  risk  of  danger,  to  its  works  or  practical  operat: 
in  consequence  of  decay  or  defect  in  the  mode  of  structure  of  any  of  the  works  ol 
telegraph  company,  it  may  require  the  company,  upon  five  days'  notice,  in  wrl\ 
to  repair  such  decayed  or  defective  works;  or  if  the  danger  is  imminent,  so  as  not  to 
admit  of  delay,  the  corporation  may,  without  notice,  repair  the  defect,  and  recover  the 
reasonable  expense  thereof,  with  costs  of  suit,  before  any  court  of  competent  jurisd'c- 
tion.     (March  31,   1865,  62  v.  72,   §   13;  S.  &  S.   157.) 

§  3470.  HOW  AND  WHEN  TELEGRAPH  COMPANIES  MAY  CONSOLIDATE. 
— ■  Where  two  or  more  telegraph  companies  whose  several  lines  are  not  parallel  or  in 
competition  with  each  other  and  when  so  united  will  form  a  continuous  line  for  receiv- 
ing and  transmitting  dispatches,  desire  to  consolidate  into  a  single  corporation,  they 
may  do  so  in  the  manner,  and  subject  to  the  rules  provided  in  chapter  two  for  the 
consolidation  of  railroad  companies.  (February  4,  1881,  78  v.  26;  R.  S.  1880;  May 
1,   1852,  50  v.  274,   §  48;  S.  &  C.  299.) 

§  3471.  CHAPTER  APPLIES  TO  TELEPHONE  COMPANIES.— The  provisions 
of  this  chapter  shall  apply  also  to  any  company  organized  to  construct  any  line  or 
lines  of  telephone;  and  every  such  company  shall  have  the  same  powers  and  be  subject 
to  the  same  restrictions,  as  are  herein  prescribed  for  magnetic  telegraph  companies. 
(R.  S.   1880.) 


Contract   showing   discrimination,   void. 

A  telephone  company  is  required  to  receive 
dispatches  without  discrimination,  and  a  con 
tract  favoring  one  telegraph  company  as 
against  another  is  void  on  grounds  of  public 
policv.— State  ex  rel.  v.  Tel.  Co.,  36  Oh.  St. 
29G    (1880). 


Telegraph  includes  telephone. 

The   term   "telegraph"  i-   sufficiently 
prehensive   to    emhrace   the    telephi 
vray  v.  Tel.  Ass'n.  18  Oh 
and  sec  note  thereto  under  !;  3454. 


Patented   article   subject  to  regulation. 

The  use  of  patented  property,  when  devoted 
to    public    use.    is    subject    to    state    control, 
whenever    the    public    welfare    requires    it. 
State    ex    rel.    v.    Tel.    Co.,    36    Oh.    St.    296 
(1SS0). 

§  3471a.     ELECTRIC   LIGHT   COMPANIES.   AND   POWER   AND   AUTOMA 
PACKAGE    CARRIER   COMPANIES;    CONSENT    OF    MUNICIPALITY.    ETC.- The 
provisions  of  this  chapter,  so  far  as  the  same  may  be  applicable,  except  section  three 
thousand  four  hundred  and  sixty-one,  shall  apply  also  to  any  company  organized  for 


Remedy    to    secure    telephone    service. 

Mandamus  is  the   | 
a  company   to  furnish  the  pro] 
and  service.      State  v.   Ti 

St.  296   I  I*--11    :  State  i 
1     B    l  \".-! 

v.   Tel.  Co..  2  C.  C.  I 
under    §    3454. 


324 


Private  Corporations  in  Ohio. 


Subways  —  Electric   Light,   etc.,    Companies,    §§   3471-1-3471-3. 


the  purpose  of  supplying  the  public  and  private  buildings,  manufacturing  establish- 
ments, streets,  alleys,  lanes,  lands,  squares  and  public  places  with  electric  light  and 
power,  or  automatic  package  carrier;  and  every  such  company  shall  have  the  same 
powers,  except  those  given  by  said  section  three  thousand  four  hundred  and  sixty- 
one,  and  be  subject  to  the  same  restrictions,  as  are  herein  prescribed  for  magnetic 
telegraph  companies.  Provided,  however,  that  in  order  to  subject  the  same  to  munici- 
pal control  alone,  no  person  or  company  shall  place,  string,  construct  or  maintain 
any  line,  wire  fixture  or  appliance  of  any  kind  for  conductingielectricity  for  lighting, 
heating  or  power  purposes  through  any  street,  alley,  lane,  square,  place  or  land  of 
any  city,  village  or  town,  without  the  consent  of  such  municipality;  and  this  inhibi- 
tion shall  extend  to  all  levels  above  and  below  the  surface  of  any  such  public  ways, 
grounds  or  places,  as  well  as  along  the  surface  thereof;  but  this  inhibition  shall  not 
be  applicaole  to  any  rights  which  have  heretofore  been  received  and  exercised  through 
proceedings  of  any  probate  court.  Any  person  or  company  violating  any  portion  of 
the  inhibition  aforesaid  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  upon  con- 
viction thereof  be  fined  in  any  sum  not  less  than  one  hundred  and  not  more  than  five 
hundred  dollars.  The  means  thus  created  for  enforcing  said  inhibition  shall  be  held 
to  be  only  cumulative  to  any  other  lawful  means  open  to  the  municipality  by  way  of 
injunction  or  otherwise;  and  this  act  shall  apply  to  actions  and  causes  of  action  or 
proceeding  named  in  section  seventy-nine  of  the  Revised  Statutes,  except  such  as  may 
be  pending  on  error,  and  not  on  appeal,  in  any  circuit  court  of  the  state.  (April  21, 
1896,  92  v.  204;  January  26,  1887,  84  v.  7.) 


Additional    servitude. 

Consent  of  abutting  property  owner  , neces- 
sary for  erection  of  poles. —  McLean  v.  El. 
Light  Co.,  9  W.  L.  B.  C5  (18SG)  ;  but  see  Auer- 


bach  v.  Tel.  Co.,  7  X.  P.  033:  s.  c,  9  Dec.  389, 
under  §  34.14:  Schaaf  v.  Cleveland,  etc..  Rv. 
Co..  66  Oh.  St.  215  (1902):  Callen  v.  Electric 
Light  Co.,  60  Oh.   St.   100    (1902). 


§  3471-1.  Sec.  1.  SUBWAYS  FOR  TELEPHONE  AND  TELEGRAPH  WIRES 
IN  CITIES;  ERECTION  OF  POLES;  PENALTY. —  Any  company  organized  under 
the  laws  of  this  or  any  other  state,  and  owning  and  operating  a  telephone  exchange, 
or  doing  a  telegraph  business,  in  any  city  in  this  state,  may  construct  and  maintain 
underground  wires  and  pipes,  or  conduits  and  other  fixtures  for  containing,  protecting 
and  operating  such  wires  in  the  streets  and  public  ways  of  said  city,  when  the  con- 
sent of  such  city  has  been  obtained  therefor,  and  it  shall  be  unlawful  for  any  corpora- 
tion, company  or  individual  to  erect  any  telephone  or  telegraph  pole  or  poles  within 
that  portion  of  any  city  in  this  state  where  subways  have  been  constructed,  except 
such  poles  as  may  be  required  for  the  purpose  of  distributing  wires  from  said  subways 
so  subscribers,  stations,  and  all  such  poles  shall,  so  far  as  possible,  be  located  in 
alleys;  provided  that  this  section  shall  not  apply  to  existing  telegraph  companies  until 
such  companies  shall  have  authority  and  sufficient  time  to  construct  subways;  and 
whoever  violates  any  of  the  provisions  of  this  section,  shall  be  punished  by  a  fine  of 
not  more  than  two  hundred  and  not  less  than  fifty  dollars.  (May  8,  1894,  91  v.  205; 
April  8,  1891,  88  v.  296.) 

For  an  act  authorizing  the  construction  of  subways,  etc.,  in  cities  of  the  first  grade,  first 
class,  see  94  v.  004. 

§  3471-2.  Sec.  2.  BY  WHOM  CONSENT  GIVEN.—  Such  consent  shall  be  given 
by  the  board  of  city  commissioners,  board  of  public  improvements,  board  of  public 
works,  or  board  of  administration  of  such  city,  or  their  respective  successors  in  office, 
or  by  the  city  council  in  cities  where  no  such  board  exists.     (April  8,  1891,  88  v.  "296.) 

§   3471-3.     Sec.  1.     POWERS  OF  ELECTRIC  LIGHT  AND  POWER  COMPANIES. 

—  A  company  organized  for  the  purpose  of  supplying  electricity  for  power  purposes, 
and  for  lighting  the  streets  and  public  and  private  buildings  of  a  city,  village  or  town, 
may  manufacture,  sell  and  furnish  the  electric  light  and  power  required  therein  for 
such  and  other  purposes,   and  such  companies  may   construct  lines   for  conducting 


Telegraph  and    I elepho  325 


Subways  for  Electric  Wires,  etc..  171-7. 


electricity  for  power   and  light  purposes   through    the  streets,   alleys, 

squares  and  public  places  of  such  city,  village  or  town,   by  th< 

sary  fixtures,  including  posts,  piers  and  abutmmts  necess.. 

consent  of  the  municipal  authorities  of  the  city,  village   or   I  ,uch 

reasonable  regulations  as  they  may  prescribe.      Provided,  that  nil 

operated  under  the  provisions  of  this  act  shall  be  covered  with  ..    rata  ula- 

tion,  and  said  poles,  piers,  abutments  and  wires  shall  be  so  located  and  arranged  as 

not  to  interfere  with   the  successful   operation   of   existing   telegraph    and    telephone 

wires.     (May   12,    1886,   83   v.    143.) 


City's  right  to  regulate  poles,   etc. 

See  Brush  Co.   v.   .Font's  el   al.,  5   C.  C.   340 
(1891)  ;   s.  c,  3  C.   I).   168:    El.   St.   Ry.   Co.   v. 


Electric  I  ....  in  <     | 
13;    Hausa    El.  I 
B.    137    (18f 


§  3471-5.  Sec.  3.  VALIDITY  OF  PRIOR  CONTRACTS.— That  in  all  caseB 
where  contracts  such  as  are  provided  for  in  section  2  of  this  act  have  been  entered 
into  prior  to  its  passage  and  there  may  have  been  any  omission  or  error  arising  out  of 
a  want  of  conformity  to  the  statutes  of  this  state  but  which  contracts  have  been  made 
as  required  by  this  act  and  where  it  is  just  and  equitable  by  reason  of  the  expendi- 
ture of  money  or  labor  in  the  performance  of  said  contracts  or  on  any  other  account 
to  fully  execute  said  contracts,  then  and  in  all  such  cases  the  courts  of  this  state  are 
hereby  authorized  and  empowered  to  uphold  such  contracts  as  valid  and  binding  on 
all  parties  to  the  same  and  to  enforce  and  carry  them  into  effect  in  all  respects  as 
though  no  such  defect,  omission  or  error  existed,  any  law  of  this  state  to  the  con- 
trary notwithstanding.     (April  22,  1896,  92  v.  290.) 

§  3471-6.  Sec.  1.  SUBWAYS  AND  CONDUITS  FOR  ELECTRIC  WIRES.  ETC  . 
IN  CINCINNATI. —  Any  company  organized  for  the  purpose  of  constructing  sub- 
ways, laying  pipes  and  operating  underground  conduits  in  any  city  of  the  first  g  I 
of  the  first  class,  in  which  to  place  and  maintain  electric  cables,  wires  and  other  con- 
ductors for  conveying  electric  currents  for  any  purpose,  may  construct  such  subways 
and  under-ground  conduits  through  the  streets,  avenues,  sidewalks,  alleys,  lanes, 
lands,  squares  and  public  places  of  such  city,  and  maintain  such  subways  and  c  n- 
duits,  together  with  necessary  man-holes,  junction  boxes,  connection-boxes,  feeders, 
pipes  and  connections  to  and  from  such  subways  and  conduits,  and  all  such  other 
necessary  fixtures  and  appliances  for  placing  and  safely  carrying  electricity  or  elec- 
trical conductors  beneath  the  surface  of  the  streets,  avenues,  sidewalks,  alleys,  lanes, 
lands,  squares  and  public  places  of  any  such  city.     (April  25,  1891,  88  v.  390.) 

§   3471-7.     Sec.   2.     PERMISSION  FOR  CONSTRUCTION  OF.  ETC.;  BY  WHOM 
GRANTED,    AND    RULES   GOVERNING    CONSTRUCTION.— In    cities    of   the    first 
grade  of  the  first  class,  the  board   of   public   improvements   and  their   successors   in 
office  of  any  such  city  shall  have  authority  in  case  such  city  should  not  construct  its 
own  system  of  subways  (and  in  the  event  it  does,  the  board  of  public  improvements 
or  their  successors  in  office  shall  have  power  to  contract  for  the  construction  of  the 
same),  to  grant  to  any  person,  company  or  corporation  organized  for  the  purpos 
constructing  subways,   laying  pipes   and  operating  under-ground   conduits  in  which 
to  place  and  maintain  electric  cables,  wires  and  other  necessary  appliances  for  con- 
veying electric  currents,  permission  and  authority  to  construct  and  operate  such 
ways    and   under-ground   conduits   through   the   streets,    avenues,    sidewalks,    e 
lands,  squares  and  public  places  of  such  city,  with  the  necsssary  man-holes,  juncl 
boxes,  connecting-boxes,  feeders,  pipes  and  other  connections  and  appliances 
shall  be  unlawful  for  any  such  company  to  enter  upon  the  construction  o 
work,  or  to  open  or  take  up  the  pavements  of  the  streets,  or  to  make  any 
in  any  of  said  streets,  avenues,  sidewalks  or  other  public  ways  of  said  city  unl 
has  first  obtained  authority  so  to  do  from  the  board  of  public  improvement 
successors  in  office  in  cities  of  the  first  grade  of  the  Srst  class;  and  any  such  person. 


326  Private  Corporations  in  Ohio. 


Subways  for  Electric  Wires,  §  3471-8. 


company  or  corporation  operating  or  maintaining  the  same  shall  be  subject  to  such 
reasonable  regulations   as   the  board   of   public  improvements  or   their   successors  in 
office  in  cities  of  the  first  grade  of  the  first  class  shall  make  concerning  the  construc- 
tion and  use  of  said  subways  and  conduits,  and  the  time,  manner  and  mode  of  plac- 
ing wires,  cables  and  other  electrical  conductors  therein.     And  it  is  hereby  made  the 
duty  of  the  board  of  public  improvements  or  their  successors  in  office  to  adopt  and 
enforce  such  rules  and  regulations  so  as  to  secure  the  construction  of  said  subways 
and  under-ground  conduits  in  the  most  approved  manner,  for  the  safety  of  persons 
and  property  adjacent  to   and  connected  with  said  subways   and  under-ground  con- 
duits (;)  such  construction  shall  be  under  the  control  and  subject  to  the  approval  of 
the  chief  engineer  of  the  board  of  public  improvements  or  their  successors  in  office  and 
the  fact  that  such  approved  and  safe  construction  has  actually  taken  place,  shall  be 
certified  to  in  writing  by  the  said  engineer  before  any  use  shall  be  made  of  the  same. 
Provided,  however,  that  no  such  permission  and  authority  hereinbefore  referred  (to) 
shall  be  granted  by  said  board  of  city  affairs  to  any  such  company  until  said  board 
shall  have  advertised  in  some  paper  of  general  circulation  in  such  city  on  at  least  one 
day  of  each  week,  for  four  consecutive  weeks,  for  bids  for  the  grant  of  such  permis- 
sion and  authority,  and  no  such  grant  shall  be  made  except  to  the  highest  bidder,  nor 
for  a  less  compensation  to  the  city  than  the  annual  sum  of  one  per  cent,  of  the  gross 
proceeds  resulting  from  the  operation  of  said  subways,  to  be  paid  for  such  grant  and 
for  the  purpose  of  keeping  in  repair  the  streets,  sidewalks  and  other  places  wherein 
such   subways   are   constructed    and   operated;    and   but   one    such   company   shall   be 
authorized,  in  any  case  to  open  up  the  streets  for  such  purpose  or  to  construct,  own 
and  operate  subways  in  which  to  place  electric  wires,  and  all  such  wires  except  tele- 
graph and  telephone  wires  shall  be  required  to  be  laid  in  one  general  subway  con- 
structed for  the  purpose;  and  said  board  shall  have  the  right  to  reject  any  and  all 
bids'.      Provided,  that  nothing  in  this  act  contained  shall  be  constructed  (construed) 
so  as  to  authorize  or  require  the  placing  of  telegraph  or  telephone  wires  or  conduc- 
tors in  the  same  conduit  or  conduits  with  electric  light,  power  or  railway  wires,  or 
conductors,  or  so  as  to  prevent  the  granting  by  municipalities  of  the  power  to  place 
telephone  or  telegraph  wires  or  conductors  in  a  separate  conduit  in  the  streets  to  be 
constructed  for  that  purpose.      And  provided  further,  that  nothing  herein  contained 
shall  be  so  construed  as  to  conflict  with  any  orders  made  by  the  probate  court  of  any 
county,  containing  a  city  of  the  first  grade  of  the  first  class,  for  maintaining  over- 
head or  under-ground  wires  or  conduits,  for  furnishing  electric  light,  heat  or  power, 
where  investments  are  made  on  the  faith  of  the  same;  but  all  such  orders  of  the  court 
shall  be  valid  and  binding  upon  all  parties  thereto  and  their  successors  and  assigns. 
(April  25,  1891,  88  v.  390.) 

§  3471-8.  Sec.  3.  BOND  FOR  RESTORATION  OF  STREETS,  ETC.;  BOARD 
OF  IMPROVEMENTS  TO  FIX  RENTAL. —  Nothing  herein  contained,  however,  shall 
authorize  any  person,  company  or  corporation  to  construct  such  subways  or  conduits 
or  to  excavate  any  portion  of  any  street,  sidewalk  or  other  public  way  of  any  such 
city,  until  such  person,  company  or  corporation  has  first  executed  a  bond  in  the  sum 
of  two  hundred  and  fifty  thousand  dollars,  conditioned  to  restore  such  streets,  side- 
walks and  other  public  ways  to  their  original  state  of  usefulness,  and  to  keep  the 
same  in  repair  to  the  satisfaction  of  "the  board  of  public  improvements  or  their  suc- 
cessors in  office,  and  its  chief  engineer  for  a  period  of  five  years  from  and  after 
such  restoration  thereof.  The  board  of  public  improvements  or  their  successors  in 
office  in  cities  of  the  first  grade  of  fHe  first  class  in  which  such  subways  may  be  con- 
structed, shall  have  power  to  fix  the  rental  to  be  charged  by  persons,  companies  or 
corporations  owning  or  operating  such  subways  for  the  use  and  occupation  of  such 
subways  or  conduits  by  electric  companies  or  companies  using  or  supplying  electricity 
for  any  purpose,  and  shall  estimate  the  same  upon  a  percentage  based  on  the  amount 
invested  in  the  construction,  maintenance  and  operation  of  said  subways  and  under- 
ground conduits.       (April  25,  1891,  88  v.  390.) 


PART  IX. 


TURNPIKE,  PLANK-ROAD,  AND  AVENUE  CORPORATIONS. 

§3472.  Powers  of  companie  . 

§3473.  Supplemental  articles,  etc. 

§3474.  May  use  stone,  gravel,  or  plank. 

§3475.  May  enter  upon  and  appropriate  I 

§3470.  How  righl  to  use  bridge  of  streel  acquired. 

§  3477.  Width  and  grade. 

§3478.  How  authority  to  take  toll  acquired. 

§  3478a.  Extension  of  turnpike  road  to  other  improved  road. 

§3479.  Penalties  for  evading  the  gates. 

§3480.  Mile  stones  to  be  put  up. 

§  3481.  Rates  of  toll. 

§3482.  Repair  of  roads  within  municipality. 

§3483.  Proceedings  to  enforce  repair. 

§3484.  Repair  of  roads  outside  of  municipaliti 

§  3485.  Appeals  in  such  cases. 

§3480.  Penalties  againsl    toll   gatherings  for  detaining  travelers. 

§3487.  Penalties  for  fast   riding  or  driving  over  brii 

§  3488.  Penalties  for  obstructing  roads. 

§  3489.  How  penalties  to  be  recovered. 

§  3490.  Penalty  for  obstructing  navel  on  roads. 

§3491.  When  municipal  limits  are  extended  beyond  a  tollgate. 

§  3492.  May  sell  bridge  or  road  in  such  limits  to  city  or  village. 

§3493.  Foreclosures  of  mortgages  on  roads. 

§3494.  Appraisers;  the  purchaser  takes  the  franchise. 

§3495.  How  road  surrendered   to   county. 

§  3496.  How  such  transfer  to  be  evidenced. 

§  3497.  Private  sale  of  roads. 

§3498.  When  and  how  a  road  may  be  sold  to  county  commissioners. 

§  3498a.  County  commissioners  may  purchase  toll  mad-  when  petitioned  to  do  so;  qui 

of  purchase  to  be  submitted  to  vote. 

§3499.  How  toll  roads  voted  to  be  purchased  by  counties  appraised. 

§  3500.  The  purchase  by  the  commissioners,  and  effecl  thereof. 

§3501.  The  issue  of  bonds  for  purchase  and  the  tax  for  their  redemption. 

§  3501a.  Taxes  and  assessments  for  construction  of  free  turnpikes  may  be  refunded. 

§3502.  Fees  of  appraisers,  county  auditor,  and  treasurer. 

§3503.  Sale  of  road  in  one  county  does  not  affed   portion  of  road  in  am. then 

§3504.  Transfers  do  not   effect   creditors. 

§  3505.  Additional   stock   authorized. 

§  350G.  Two  or  more  companies  may  consolidate. 

§3507.  May  assist  a  road  which  is  an  extension. 

§3508.  May  assist  in  an  intersecting  free  turnpike. 

§  3509'.  Accounts  each  company  must   keep. 

§3510.  The  books  a  company  must   keep. 

§3511.  Toll-gate  keepers  must   report. 

§3512.  Directors'  annual  report   to  stockholders. 

§3513.  Treasurer  to  hold  no  other  office  in  company. 

§3514.  Toll-gate  keeper  to   be  deemed   the  agent  of  the  company. 

[327] 


328 


Private  Corporations  in  Ohio. 


Turnpike  and  Avenue  Companies,  §§  3472-3474. 


§  3515.  How  obstructing  fences  may  be  removed. 

§  3516.  Company   may  assess  stockholders. 

§  3517.  Notice  of  meeting  for  that  purpose. 

§ 351S.  Proceedings  thereat. 

§  3519.  Collection   of  assessments. 

§  3520.  Those  assessed  for  improved  roads  may  become  incorporated. 

§  3521.  Who  to  be  stockholders. 

§3522.  Certificates  of  stock  to  be  issued. 

§  3523.  Powers  of  such  companies. 

§  3524.  When  such  company  may  increase  capital  stock. 

§  3525.  Proceedings  for  such  purpose. 

§  3526.  Company   may  divide   its  road. 

§  3527.  Proceedings  to  effect  subdivision. 

§  3528.  Reorganization  of  separate  companies. 

§  3529.  Names  of  new  companies. 

§  3530.  Roads  may  be  sold  on  execution. 

§  3531.  The  levy  and  appraisement. 

§  3532.  When  an  order  for  appraisement  may  be  made. 

§  3533.  The  purchaser  takes  the  franchise. 

§  3534.  Transcript  to  be  tiled  with  secretary  of  state. 

§  3535.  When  right  to  take  toll  may  be  sold  on  execution. 

§  3536.  Certificate  of  such  sale,  and  its  effect. 

§  3536-1.  Avenue  companies  may  be  incorporated  in  certain  counties.     May  appropriate  lands. 

§  3536-2.  Erection  of  toll  gates  of  certain  avenues  in  Montgomery  county. 


§  3472.  POWERS  OF  COMPANIES.  —  A  turnpike  or  plankroad  company  may- 
construct  a  turnpike  or  plankroad,  as  shall  be  named  in  its  articles  of  incorporation, 
between  the  termini  named  therein,  and  when  it  is  so  designated  in  the  articles  of 
incorporation,  may  improve  and  hold  more  than  one  road,  when  such  roads  diverge 
from  one  point,  or  branch  from  each  other  in  the  course  of  their  routes.  (May  1,  1852, 
50  v.  274,  §  32;   March  4,  1853,  51  v.  484,  §  2;   S.  &  C.  293;    S.  &  C.  319.) 


No  power  to  hold  fee. 

A  turnpike  company  has  no  right  to  acquire 
and  hold  land  in  fee  simple,  when  not  neces- 
sarv  for  the  purposes  of  the  company.  —  Turn- 
pike Co.  v.  Railroad  Co.,  15  C.  C.  268  (1898)  ; 
s.  c,  8  C.  D.  269. 

City    cannot    lay    water    pipes    without 
compensation. 

A  city  cannot  lay  its  water  pipes  under  the 
surface  of  a  turnpike  without  compensation 
therefore.  —  Cincinnati  Turn.  Co.  v.  Avondale, 
17  W.  L.  B.  294  (1887). 


As  to  rights  of  individual  to  lay  pipes. 

Ave.  Co.  v.  Village,  1  N.  P.  85  (1894);  s.  c, 
1  Dec.  99. 

Cannot  grant  greater  easement  thar  it 
possesses. 

McMaken  v.  Railway  Co.,  5  N.  P.  367 
i  1897  )  :  s.  c,  5  Dec.  358:  Compton  v.  Railwav 
Co.,  5  X.  1'.  367  (1897):  s.  c,  5  Dec.  358; 
Avenue  Co.  v.  St.  Bernard.  1  X.  P.  85  ( 1894  I  : 
s.  c,  1  Dec.  99. 


§  3473.  SUPPLEMENTAL  ARTICLES.  ETC.  —  Any  such  company  may  file  sup- 
plementary articles,  for  the  specification  and  designation  of  an  additional  branch  road 
connected  with  any  previous  work  constructed  by  it,  and  may  unite  with  any  other 
turnpike  or  plankroad  company  in  maintaining  and  holding  any  road  in  common 
between  them  and  divide  the  proceeds  thereof  in  proportion  to  their  interest.  (March 
4,  1853,  51  v.  484,  §  3;    S.  &  C.  319.) 


§  3474.  MAY  USE  STONE,  GRAVEL.  OR  PLANK.  —  Any  turnpike  or  plank- 
road company,  in  the  construction  or  repair  of  its  road,  may  make  or  construct  any 
part  thereof  with  either  stone,  gravel,  or  plank,  as  one  or  the  ether  material  may  be 
most  convenient  for  such  part  of  the  road;  when  plank  is  used  it  must  be  two  and 
one-half   inches   thick,   and   cover  sufficient   of   the  road   for   the   accommodation   of 


Righi  to  I  329 


Turnpike  and  Avenue  Comr.- 


teams,  and  may  be  placed  in  the  .center  or  on  either  Bi< 
material  must  not  impair  the  utility  of  the  road,  01   rendei 
eling  public.     (May  1,  1852,  50  v.  274,  §  33;    March    12,  1( 
3,  1854,  52  v.  24,  §  1;    S.  &  C.  295;    S.  &  C.  334;    S.  &  C.  :;. 

§  3475.    MAY  ENTER  UPON  AND  APPROPRIATE  LANDS.  —  Any 
pany,  or  its  agents,  may  lay  out,  locate,  survey,  and  make  the  turnpike  "i   planki 

for  the  making  of  which  it  is   incorporated,   thro 
lands,   on  the  best  route  between  the  points  or  places  d» 
incorporation,  contracting  for  and  paying  the  owners  of  tin 
passes  the  damage  done  thereto  by  laying  out  and  making  the  road,  and 
taken  therefrom  for  constructing  or  repairing  the  same;    when  the  com] 
owner  can  not  agree  as  to  the  amount  of  compensation,  or  when  the  owner  is  unknown 
or  incapable  of  contracting,  then  such   damages  shall   be   assessed   and    pal 
manner  prescribed  by  law;    and  when  any  part  of  the  road  is  rendered   unsafe 
travel   by  the    current   of  any  river,   water-course,    or   other   unavoidable   cause, 
company  may  change  the  location  of  the  road  at  such  place  so  far  as  may  be  neces- 
sary, and  may  appropriate  land  therefor  in  the  manner  aforesaid.     (May  1,   185.-' 
v.  274,  §  32;    March  8,  1865,  62  v.  36,  §  1;    S.  &  C.  293;    S.  &  S.   116.) 

Public  easement  may  be  assigned. 


The  interest  of  the  public  in  the  highways, 
consisting  of  a  perpetual  easemenl  in  the  land 
covered  by  them  for  the  needs  of  public  travel, 
may.  at  the  discretion  of  the  legislature,  be 
transferred  to  a  plank-road  company.  The 
company  is  the  assignee  of  the  public  and 
possessed  of  the  same  interest  the  public  had. 
—  C.F.&  C.  Plankroad  Co.  v.  Cane  <t  al.,  2 
Oh.  St.  419   (1853). 

May  build  toll-house. 

After  a  company  lias  appropriated  land 
sixty  feet  wide  for  the  purposes  of  its  road, 
and  the  resulting  damages  to  the  owners  have 


been  ascerta ined,  it  may,  withii 
build  a  toll-house  and  dig  a  well  for  th< 
commodal  ion  of  the  toll  lmi  h< 
Turnpike  Co.,  6  Oh.  St.  16   (18 

Error   in   assessing   damages. 
Whether  the  fr<  eholders,  in 

formed  erroneous  conclusions 
extenl    of   injury    by    failing   to 
detrimenl    which  a   toll  house  migl  I 
cannot,  in  the  showing  i 

record  <>t"  i  he  basis  of  their  award, 
ered    by    the    court.      An    acl  ion    of    tres 
against    the  company  will    nut    lie   for  • 
made  in  assessing  <'■  Ward  v.  Turn- 

pike Co.,  6  Oh.  St.  L6     181 


§  3476.    HOW  RIGHT  TO  USE  BRIDGE  OR  STREET  ACQUIRED.  —  Wh 
a  company  deems  it  expedient  or  necessary,  in  laying  out  or  building  a  turnpike 
plankroad,  for  which  it  has  become  incorporated,  to  enter  upon  and  take  posses 
of  any  road,   street,   alley,   or  bridge,   it  shall  present   to  the  commissioners   of 
county  in  which  such  road,  street,  alley,  or  bridge  is  situate,  a  petition,  signed  by  n 
least  twelve  citizens  living  upon  or  being  interested  in  such  road,  street, 
bridge,  and  shall  cause  a  notice  to  be  published  in  some  newspaper  of  general  c 
lation  in  the  county,  for  four  consecutive  weeks,  of  the  object  and  p 
tion,  that  remonstrances  may  be  made  thereto;    and  the  commissioners,  at  their  nexl 
meeting  after  the  presentation  of  such  petition,  notice  having  b< 

shall  hear  and  determine  the  same;    and  if  it  appear  that  it  will  be  for  the  inter es 
of  the  community  using  such  road,  street,  alley,  or  bridge,  to  have  the  same  t 
and  used  for  the  purpose  of  constructing  such  turnpike  or  plankroad   thereoi 
commissioners  shall  grant  a  permit,  in  writing,  to  the  company  to  I 
same  on  such  terms  as  they  may  deem  fit  for  the  interest  of  the  con 
company  shall  thereby  acquire  an  exclusive  right  of  way  in  such  road, 
or  bridge;    but  nothing  in  this  section  shall  be  so  construed  as  to  extend 
streets,  alleys,  or  bridges  within  the  limits  of  a  city  or  village  in  this  state,  n 
any  macadamized  road.     (March  29,  1866,  63  v.  61.  §  4;   S.  &  S.  141.) 

8  3477     WIDTH  AND  GRADE.  -  All  turnpikes  and  plank-roads  shall  be  open 
not  exceeding  sixty  feet  wide,  thirty  feet  of  which  shall  be  cleared  of  brush  and  logs, 
and  at  least  sixteen  feet  shall  be  made  an  artificial  road,  composed  of  stone,  gr. 


330 


Private  Corporations  ln  Ohio. 


Turnpike  and  Avenue  Companies,  §§  3478-3479. 


wood,  or  other  convenient  material,  well  compacted  together  in  such  manner  as  to 
secure  a  firm,  even,  and  substantial  road,  and  in  no  case  shall  the  ascent  in  any  such 
road  be  greater  than  five  degrees;  but  when  a  company  has  been  licensed  by  the 
county  commissioners  as  directed  by  law,  and  has  collected  tolls  on  its  road  for  ten 
years  or  upward,  it  may  demand  and  receive  such  tolls  thereon  as  are  authorized  by 
law,  when  the  grade  does  not  exceed  seven  degrees.  (April  12,  1869,  66  v.  46,  §  1; 
April  4,  1878,  75  v.  90,  §  34;    S.  &  C.  295.) 


S  3478.  HOW  AUTHORITY  TO  TAKE  TOLL  ACQUIRED.  —  A  company  when 
it  has  completed  its  road,  or  any  part  thereof  not  less  than  three  miles  and  when, 
from  time  to  time  thereafter,  it  has  completed  any  further  or  continuous  portion 
thereof,  may  apply  to  the  commissioners  of  the  county  in  which  the  finished  road  or 
part  thereof  lies,  or  in  case  the  same  lies  in  two  or  more  counties,  to  the  commissioners 
of  either  of  the  counties,  and  the  commissioners  shall  appoint  three  judicious,  dis- 
interested freeholders,  who  shall,  on  oath,  examine  the  same,  and  report  their  opinion 
to  the  commissioners,  in  writing;  if  they  report  that  the  road,  or  such  part  thereof 
is  completed  agreeably  to  the  provisions  of  this  chapter,  the  commissioners  shall  by 
license  in  writing,  authorize  the  company  to  erect  gates,  at  suitable  distances,  and 
demand  and  receive,  of  persons  traveling  such  road,  the  tolls  allowed  by  law;  if  any 
such  commissioner  is  a  stockholder  in  the  company  making  the  application,  the 
duties  required  of  the  commissioners  shall  devolve  upon  the  probate  judge  of  the 
county  or  counties  aforesaid;  and  if  any  such  probate  judge  is  a  stockholder  in 
the  company,  such  duties  shall  devolve  upon  the  common  pleas  judge  of  the  distrid 
in  which  such  road  lies,  or  the  judge  of  any  of  the  districts  within  which  such  road 
lies,  in  case  the  same  lies  in  two  cr  more  districts.  (April  18,  1870,  67  v.  94,  §  1; 
May  1  1852  50  v.  274,  §  35;  March  12,  1853,  51  v.  395,  §  3;  March  4,  1853,  51  v. 
484    §  4-   April  29,  1872,  69  v.  196,  §  1;    S.  &  C.  295;    S.  &  C.  334;    S.  &  C.  320.) 


Reservation  by  owner  of  land. 

A  reservation  by  the  owner  of  land  in  grant- 
ing a  right  of  way  for  a  toll  road,  that  she 
and  her  descendants  shall  have  the  right  to 
pass  without  payment  of  toll,  does  not  create 
an  estate  running  with  the  land.  —  Turpin  v. 
Pike  Co.,  7  N.  P.  12   (1S99)  ;  s.  c,  9  Dec.  668. 


Demand   not  necessary. 

A  demand  for  the  toll  is  not  necessary. 
The  liability  arises  from  passing  the  gate 
without  payment.  —  State  v.  >.eil  et  al.;  7 
Ohio   (1  pt.)    132    (1823). 

Taking  toll  is  franchise. 

The  right  of  taking  toll  is  a  franchise. — 
Sevmour  v.  Turnpike  Co.,  10  Oh.  477,  480 
(1841). 

8  3478a.  EXTENSION  OF  TURNPIKE  ROAD  TO  OTHER  IMPROVED  ROAD. 
—  That  any  turnpike  company,  whose  beginning  point  is  in  a  turnpike  road,  and 
having  completed  more  than  two  and  one-half  miles,  but  less  than  three  miles,  and 
connecting  its  said  road  with  an  improved  graveled  road,  or  with  another  turnpike 
road,  shall  have  all  the  privileges,  and  shall  in  all  other  respects  conform  to  the 
requirements  of  said  original  section  three  thousand  four  hundred  and  seventy-eight; 
provided,  that  the  ccunty  commissioners  shall  first  authorize  said  privilege  by  a  vote 
entered  upon  their  journal.     (April  17,  1882,  79  v.   144.) 

§  3479.  PENALTIES  FOR  EVADING  THE  GATES.  —  A  person  using  any  such 
road,  who,  with  intent  to  defraud  any  such  company,  or  to  evade  the  payment  of  toll, 
passes  through  any  private  gate  or  bars,  or  along  any  other  ground  near  a  turnpike 
or  plank-road  gate  erected  in  pursuance  of  law,  or  practices  any  fraudulent  or  forcible 
means  with  intent  to  evade  or  lessen  the  payment  of  such  toll,  shall,  for  every  such 
offer se,  forfeit  and  pay  a  fine  of  five  dollars,  to  be  recovered  with  cost  of  suit  and 
amount  of  toll  due  for  passing  through  any  such  gate,  before  any  justice  of  the 
peace  cf  the  county  in  which  such  offense  was  committed  without  stay  of  execution. 
And  the  fine  or  fines  when  collected  for  such  offense,  shall  be  paid  into  the  common 
school  fund  in  the  township  in  which  such  offense  was  committed,  but  nothing  herein 


'I  I >LL. 
Turnpike  and  Avenue  Companies,  §§  3480 


331 


shall  be  so  construed  as  to  prevent  persons  using  any  bui 
common  purpose.     (March  22,  1881,  7  8  v.  77;    Rev.  Stat.    1881 
101,  §  37;   S.  &  S.  149;    S.  &  C.  296.) 


Rights  of  abutting  owner. 

May  erect   a  bridge  over  ditch   constructed 
l»v  turnpike  company    for  drainage   pur] 
in  order  to  enter  turnpike  from  his  premises; 
lnit  cannot  conned  bridge  with  ;i  private  waj 
ami   allow  the  public  to  use   it    aa  a   "  shun- 

pike  "  to  evade  payment    of  toll.  —  Avenue   (  '<>. 

v.  Bates,  2  c.C  376  I  1887)  ;  9.  c,  I  C.  D.  540. 
Owner   of   land    not    abutting   on    turnpike, 
but  on  such  private  way.  over  which  he  ; 
right,   lias   no   right    to  erecl    such   bridge. 


Avenue  Co.  \.  I: 
1  C.  I' 

<  >u  ner  >>i  abu 
water    pipes    in 

company    i-   ';ii  it  led    '•■   i  om 
fore.       Ave.  <  ■■.  v.  Vi 
s.  c,  1    De< 

Right  of  city  to  lay 

<  incinnat  i  Turn.  •  ■•.   \ 
B.  294 


§  3480.    MILE-STONES  TO  BE  PUT  UP.  —Each  company  shall  put  up  a  post  or 
stone  at  the  end  of  each  mile,  with  the  number  of  miles  from  some  noted 
place,  at  one  end  of  the  read,  fairly  cut  or  painted  thereon,  and  shall  place  near  ■ 
gate  a  board,  with  the  rates  of  toll  painted  thereon;    and  no  toll  shall  be  demanded 
unless  such  boards  are  kept  up.     (May  1,  1852,  50  v.  274,  §  38;    S.  &  C.  296.) 


§  3481.    RATES  OF  TOLL.  —  Every  company  entitled  by  the  laws  of  this  state 
to  charge  tolls  may  receive  from  persons  traveling  on  or  using  its  road,  the  fo'. 
ing  tolls,  and  no  more,  for  every  ten  (10)  miles  travel  on  such  road,  and  in  the  I 
proportion  for  any  less  distance,   to-wit:     For  every  four-wheeled  carriage  or  of 
vehicle,  drawn  by  one  horse  or  other  animal,  fifteen  cents,  and  for  each  additional 
animal,  five  cents;    for  every  sled  or  sleigh  drawn  by  one  horse  or  other  animal, 
cents,  and  for  each  additional  animal,  five  cents;    for  every  horse,  or  mule  and  rider, 
five  cents;    for  every  horse,  mule  or  ass,  six  months  old  or  upwards,  three  cent- 
every  head  of  neat  cattle,  six  month(s)  old  or  upwards,  one  cent;    for  every  head  cf 
sheep  or  hogs,  cne-half  cent;    for  every  stage  coach  or  omnibus,  drawn  by  two  horses 
or  other  animals,  thirty  cents,  and  for  each  additional  animal,  ten  cents;    for  r 
two-wheeled  carriage  drawn  by  one  horse  or  other  animal,  ten  cents,  and  for  eac 
additional  animal,  five  cents;    and  for  every  engine  wagon  or  ether  vehicle,   drawn 
or  propelled  by  steam  or  otherwise  than  herein  provided,  such  companies  may  charge 
and   receive  such  rates  cf   toll  as  their  directors  or  boards  of  managers   n 
time  to  time  direct,  but  not  to  exceed  five  (5)  cents  per  mile;    but  on  all  turn 
roads  constructed  of  and  kept  in  repair  with  two-thirds  broken   limestone  the  c 
panies  operating  the  same  may  charge  and  receive  for  each  ten  miles  travel  on  s 
road,   and   in   the   same   proportion   for   any   less   distance,    to-wit:      For   ever 
wheeled  carriage  or  other  vehicle  drawn  by  one  horse  or  other  animal,  twenty  c 
and  for  each   additional  animal,  ten  cents;    for  every  sled  or  sleigh  drawn  by 
horse  or  other  animal,  ten  cents,  and  for  each  additional  animal,  five  cents: 
horse  or  mule  and  rider,  ten  cents;    for  every  horse,  mule  or  ass,  six  months  ole 
upwards,  five  cents;    for  every  head  of  neat  cattle,  six  months  old  or  upwards 
and  one-half  cents;    for  every  head  of  hogs,  three-fourths  of  a  cent;    for  every  heac 
sheep,  one-half  cent;    for  every  stage-coach  or  omnibus,  drawn  by  two  horses 
animals,    forty   cents,    and   for    each    additional,    ten    cents;     for    every    two-wheeled 
carriage  drawn  by  one   horse,  fifteen   cents;    and  for  every  engine,  wagon  or  c 
vehicle,  drawn  or  propelled  by  steam  or  otherwise  than  herein  provided,   su 
panies  may  charge  and  receive  such  rates  of  toll  as  their  directors  or  boards  of  man 
agers  may  from  time  to  time  direct,  but  not  to  exceed  five  (5)   cents  per  mile: 
persons  going  to  and  from  their  regular  place  of  worship  on  the  Sabbath,  or  I 
from  funerals,  militia  musters,   or  elections,  jurymen  going  to  and  return, 
their  attendance  at  court,  and  the  troops  and  armies  of  the  United  States,  and  of  this 
state,  may  pass  on  any  such  road  free  of  toll:    and  a  company  incorporated  for  t 
purpose  of  constructing  a  turnpike  or  plankroad  from  a  mine  or  quarry  to  a  railroad. 


332 


Private  Corporations  in  Ohio. 


Turnpike  and  Avenue  Companies,  §§  3482-3484. 

canal,  slack-water  navigation  or  navigable  water,  macadamized  road  or  place  within 
or  upon  the  borders  of  this  state,  may,  when  such  road  is  completed,  charge  and  col- 
lect such  amount  of  toll  fcr  teams,  hauling  the  products  of  such  mines  or  quarries  on 
its  road  as  its  directors  may  determine,  not  exceeding  four  cents  per  mile  for  two- 
horse  teams,  and  an  increase  of  two  cents  per  mile  for  each  additional  horse;  but  such 
rates  shall  not  be  charged  for  teams  hauling  the  products  of  such  mines  or  quarries 
for  more  than  eight  miles,  nor  shall  other  travelers  on  such  roads  be  charged  more 
than  the  ordinary  rate  of  toll  per  mile  as  allowed  by  section  thirty-four  hundred  and 
eighty-one.  (February  13,  1891,  88  v.  33;  March  22,  1889,  86  v.  133;  April  17, 
1882,  79  v.  147;  February  24,  1881,  78  v.  35;  Rev.  Stat.  1880;  March  27,  1875,  72 
v.  85,  §  1;  June  12,  1879,  76  v.  153,  §  1;  March  16,  1865,  62  v.  143,  §  1;  S.  &  S.  148; 
S.  &  C.  296.) 


Classification     uniform     and     constitu- 
tional. 

The  acts  of  March  27.  1875  (72  v.  85)  and 
of  June  12,  1879  (7(1  v.  153).  amendatory  of 
the  act  of  March  16,  1875  (S.  &  S.  147). 
dividing   all    turnpike    companies   within    the 


state  into  separate  and  distinct  classes,  have  a 
uniform  operation  upon  all  the  members  of 
each  class,  and  are  not  in  conflict  with  article 
2,  section  2(>,  of  the  constitution.  —  State  ex 
rel.  v.  Turnpike  Co.,  37  Oh.  St.  481   (1882). 


§  3482.  REPAIR  OF  ROADS  WITHIN  MUNICIPALITIES.  —  If  a  company  fail 
to  keep  any  part  of  its  road  within  the  limits  of  a  municipal  corporation  in  repair  for 
five  days  successively,  the  proper  authority  of  such  municipal  corporation  may  pass 
a  resolution  requiring  such  company  to  repair  the  same  within  ten  days  after  the 
service  of  a  copy  of  such  resolution  on  the  gate-keeper  nearest  such  municipal  corpora- 
tion, and  the  company  shall  declare  its  intention  to  abandon  or  repair  the  same;  in 
case  of  a  failure  or  refusal  so  to  do  within  thirty  days,  or  in  case  of  a  failure  or  refusal 
to  repair  in  ninety  days,  the  municipal  corporation  may  file  a  complaint  in  writing, 
with  a  copy  of  the  resolution,  in  the  court  of  common  pleas  of  the  county,  describing 
the  portion  of  the  road  required  to  be  repaired,  and  the  court,  or  any  judge  thereof, 
shall  appoint  two  disinterested  persons  as  inspectors,  who  shall  view  the  portion  of 
the  road  complained  of,  and  return  their  finding  thereon,  under  oath,  to  the  court, 
within  ten  days;  and  if  they  find  the  complaint  to  be  true,  such  portion  of  the  road 
shall  be  declared  abandoned  by  the  company,  and  the  municipal  corporation  may 
improve  or  repair  the  same,  and  assess  and  collect  the  costs  of  such  improvement  or 
repairs  in  the  same  way  as  is  provided  by  law  in  relation  to  the  improvement  of 
streets.     (March  14,  1853,  51  v.  464,  §  1;   S.  &  C.  333.) 

See  Madisonville  v.  Turnpike  Co.,  17  W.  L.  B.  30   (18SG). 

§  3483.  PROCEEDINGS  TO  ENFORCE  REPAIR.  —  Notice  of  the  complaint,  and 
of  the  appointment  and  time  of  meeting  of  the  inspectors,  shall  be  served  on  the  presi- 
dent or  other  officer  of  the  company,  or  at  its  principal  office,  five  days  before  the 
meeting  of  the  inspectors;  and  if  such  service  be  made  by  any  person  other  than  the 
sheriff,  it  shall  be  verified  by  the  oath  of  the  person  making  the  same;  no  toll  shall 
be  received  at  the  gates  for  the  portion  of  the  road  so  declared  abandoned;  and  if  the 
keeper  of  any  gate  demand  and  receive  toll  for  the  same,  he  shall  be  liable  to  pay 
the  sum  of  five  dollars  to  the  party  injured,  to  be  recovered  by  civil  action  before  any 
justice  of  the  peace  having  jurisdiction;  (and)  the  costs  of  the  proceeding  on  the 
complaint  shall  be  paid  by  the  company,  if  the  action  be  sustained,  but  if  not  sus- 
tained they  shall  be  paid  by  the  municipal  corporation,  and  execution  shall  issue 
therefor  as  in  other  cases.     (March  14,  1853,  51  v.  464,  §  2;    S.  &  C.  334.) 


§  3484.  REPAIR  OF  ROADS  OUTSIDE  OF  MUNICIPALITIES.  —  If  any  com- 
pany fail  to  keep  in  repair  its  road  outside  the  limits  of  a  municipal  corporation  for 
five  days  successively,  or  fail  to  build  or  rebuild  any  of  the  bridges  or  culverts  across 
any  or  all  of  the  streams  crossing  its  road  fcr  a  period  of  six  months,  any  person  may 


Toll-<  i.vi  111  ii  i  3!\3 


Turnpike  and  Avenue  Companies.  §§  3480 


file  a  complaint,   in  writing,  before  any  justice  of  the  peace   of  1 
forth  the  nature  and  extent  of  the  defect  complained  oi,  and  d< 
places  in  the  road  where  it  exists;    the  justice,  upon  at  least  three  d 
given  to  the  gate-keeper  nearest  the  place  complained  of,  shall  ap] 
ested  persons  as  inspectois,  to  meet  at  the  place  complained  of  within  fl 
of  the  time  and  place  of  which  meeting  reasonable  notice  shall 
keeper;    the  inspectors  shall  then  examine  into  the  truth  of  the   I 
of,  and  if  they  find  the  complaint  to  be  true,  they  shall  file  with  tl 
cf  their  finding,  in  writing,  and  send  a  certified  copy  of  the  com  p. 
finding  thereon,  to  the  keeper  of  each  of  the  gates  between  wli 
or  bridge  is  located,  and  thereafter  no  toll  shall  be  received  at  such 
intermediate  distance  until  the  parts  of  the  road  found  defective  by   0  tors 

are  fully  repaired,  or  an  appeal  is  taken  as  hereinafter  provided;    if  the  keep- 
such  gate  demand  and  receive  toll  contrary  to  the  provisions  of  this  s< 
be  liable  to  pay  the  sum  of  five  dollars  to  the  party  injured,  to  be  recovered  1 
before  any  justice  of  the  peace  having  jurisdiction;    the  company  shall  be  liable  to 
any  person  injured,  for  the  damages  sustained  by  reason  of  such  road  or  bridge  being 
suffered  to  remain  out  of  repair  by  the  neglect  of  the  company;    the  justice  shall 
record  the  complaint,  and  the  report  of  the  inspectors;    and  the  inspectors  and  justice 
shall  be  entitled  to  receive  one  dollar  per  day  for  their  services,  which  shall  be  paid 
by  the  company,  if  the  complaint  be  sustained,  and  if  it  fail,  then  by  the  comp 
ant;    and  to  the  amount  so  taxed  shall  be  added  the  expense  of  sending  the  notice  to 
the  gate-keepers,  as  required  by  this  section,  which  shall  be  paid  as  aforesaid,  and  for 
which  the  justice  shall  render  judgment  against  the  party  liable  for  the  payment 
thereof.     (April  9,  1878,  75  v.  106,  §  1;   March  11,  1867,  64  v.  51,  §  1;     S.  &  S 
151;    S.  &  C.  335].) 


County     coniniissioners     cannot    compel 
repair. 

The  county  commissioners  have  no  such  in- 
terest as  to  "entitle  them  to  a  right  of  man- 
damus to  compel  a  turnpike  company  to 
repair  a  bridge  forming  a  part  of  such  com- 
pany's road.  —  State  ex  rel.  v.  Turnpike  Road 
Co.,' 16  Oh.  St.  308   (1805). 


Supervisor  has  no   power. 

A  supervisor  of  highways  has  no  \ 
plank  roads  constructed  by  in 
panies  and  pis  ced  by  law  under  their  coi 
nor  could   he  justify    interference   with 
roads,  although  directed  by  the  township  I 
tees.       C.  I'.  &  • '.  Plankroad  Co.  v.  I 
2  Oh.  St.   U9     18 


§  3485.  APPEALS  IN  SUCH  CASES.  —  If  the  sum  necessary  to  make  such  repairs 
exceed  twenty  dollars,  the  company  may  appeal  the  proceeding,  and  from  the  repoi 
and  judgment  as  to  costs,  to  the  court  of  common  pleas  of  the  county,  on  filing  affi- 
davit as  to  cost  of  repairs,  and  giving  bail  as  in  other  cases  of  appeal,  within  ten 
after  the  service  of  the  certified  copy  of  the  report  of  the  inspectors;  the  condition  of 
the  appeal  bond  shall  be  to  abide  by  and  perform  the  order  of  the  court  of  common 
pleas;  and  the  court  of  common  pleas  shall  hear  and  determine  as  to  the  truth  of  the 
complaint  and  report,  and  make  such  order  as  to  the  collection  of  tolls  while  the  pro- 
ceeding is  pending  as  the  court  may  deem  just;  and  if,  upon  the  final  hearing,  the 
court  find  the  complaint  and  report  true,  in  whole  or  in  part,  it  shall  make  such  order 
as  to  such  repairs,  and  as  to  the  collection  of  tolls,  as  it  may  deem  just.  (April  9. 
1878,  75  v.  106,  §  1;    March  11,  1867,  64  v.  51,  §  2;    S.  &  S.  151.) 

Sections  3484  and  3485  cited  in  Turnpike  rike    road    abandoned,    without 

Co.  v.  Parks  et  al.,  50  Oh.  St.  568,  575  (1893).  jury  or  the  right   of  appeal,  are   ui 

,     ,  .,        „-u„„  tional.  —  Turnpike  Co.  v.  Parks 

Authority    to     declare    turnpike    aban-  (      .,        Tm.n]lik,    , 

doned,  unconstitutional.  "    n,     Q.     -    .,      , 

Sections  4014.  4916  and  4918,  so  far  as  they    50  Oh.  St.  5    ■     l 
authorize   probate   courts    to   declare    a    turn- 

§  3486  PENALTIES  AGAINST  TOLL-GATHERERS  EOR  DETAINING  TRAV- 
ELERS —  If  a  toll-gatherer  on  a  turnpike  or  plankroad  unreasonably  detain  a  pas- 
senger after  the  toll  has  been  paid  or  tendered,  or  demand  or  receive  greater  toll  than 


334  Private  Corporations  in  Ohio. 

Turnpike  and  Avenue  Companies,  §§  3487-3491. 


is  allowed  by  law  on  such  road,  he  shall  forfeit  and  pay  a  sum  not  exceeding  twenty 
dollars,  to  be  recovered,  with  costs  of  suit,  before  any  justice  of  the  peace  having1 
jurisdiction  thereof,  without  stay  of  execution;  but  no  suit  shall  be  commenced 
against  a  toll-gatherer  for  an  offense  committed  or  penalty  incurred  under  this  sec- 
tion, unless  the  same  be  commenced  within  twenty  days  from  the  time  the  offense 
is  committed  or  the  penalty  incurred.     (May  1,   1852,  50  v.  274,   §  39;  S.  &  C.  297.) 

§  3487.  PENALTIES  FOR  FAST  RIDING  OR  DRIVING  OVER  BRIDGES.— 
No  person  shall  carry  fire  across  any  wooden  bridge,  on  any  turnpike  or  plankroad 
in  this  state,  except  in  a  lantern  or  close  vessel,  under  a  penalty  of  five  dollars;  and 
no  person  shall  ride  or  drive  a  horse,  or  drive  a  stage-coach  or  other  vehicle,  over  any 
such  bridge,  faster  than  a  walk,  under  a  penalty  of  two  dollars;  but  United  States 
express  mail  shall  not  be  subject  to  such  penalty.     (39  v.  36,  §  3;  S.  &  C.  336.) 

§  3488.  PENALTIES  FOR  OBSTRUCTING  ROADS.—  Whoever  deposits  any 
wood,  stone,  or  other  kind  of  material,  on  any  part  of  a  turnpike  or  plankroad  inside 
of  the  ditches  of  such  road,  or  outside  of  the  ditches,  but  so  near  thereto  as  to  cause 
the  banks  thereof  to  break  into  the  same,  or  causes  the  accumulation  of  rubbish,  or 
any  kind  of  obstruction,  shall  forfeit  and  pay  the  sum  of  five  dollars.  (39  v.  36,  §  5; 
S.   &  C.  336.) 

§  3489.  HOW  PENALTIES  TO  BE  RECOVERED. —  All  penalties  and  forfeitures 
incurred  under  the  provisions  of  this  chapter  shall  be  recoverable,  with  costs  of  suit, 
before  any  justice  of  the  peace  having  jurisdiction  of  the  same,  and  shall  be  paid  into 
the  treasury  of  the  proper  county,  as  in  other  cases.     (39  v.  36,  §  5;  S    &  C.  336  ) 

§  3490.  PENALTY  FOR  OBSTRUCTING  TRAVEL  ON  ROADS  —  All  persons 
driving  carriages  or  vehicles  of  any  description,  on  any  public  turnpike,  road  or.  high- 
way of  this  state,  shall,  on  meeting  carriages  or  vehicles  of  any  description  keep  to  the 
right  so  as  to  leave  half  of  the  road  free,  and  all  persons  riding  on  horseback,  or  on 
bicycle,  tricycle,  tandem  bicycle,  locomobile  or  automobile  on  meeting  carriages  or 
vehicles  of  any  description,  keep  to  the  right  so  as  to  leave  two-thirds  of  the  road  free, 
and  if  any  person  purposely  and  wilfully  neglects  or  refuses  to  comply  with  the  pro- 
visions of  this  section,  or  in  any  other  manner  wilfully  hinder  or  purposely  obstruct 
any  person  in  the  free  passage  of  any  such  road  or  highway,  or  shall  ride  a  bicycle, 
tricycle  or  tandem  bicycle  on  the  sidewalk  or  foot-path  of  any  unincorporated  hamlet 
or  village,  he  shall,  on  conviction  thereof,  before  any  justice  of  the  peace  or  other 
court  having  jurisdiction,  for  every  such  offense  be  fined  in  any  sum  not  less  than  five 
dollars,  nor  more  than  twenty-five  dollars,  for  the  use  of  the  common  schools  of  the 
county  in  which  the  prosecution  is  had.  (April  25,  1902,  95  v.  261;  April  26,  1898, 
93  v.  303;  March  12,  1886,  83  v.  30;  R.  S.  1880;  36  v.  104,  §   16;  S.  &  C.  336.) 

§  3491.  WHEN  MUNICIPAL  LIMITS  ARE  EXTENDED  BEYOND  A  TOLL- 
GATE.—  No  company  shall  hereafter  erect  a  toll-gate  and  collect  tolls  within  the 
limits  of  any  city  or  village,  or  within  eighty  rods  of  such  limits;  and  where  by  the 
creation  of  a  village,  or  the  extension  of  the  limits  of  a  city  or  village,  a  toll-gate  is 
brought  within  such  limits,  ftr  within  eigbcy  rods  thereof,  the  company  shall  remove 
the  toll-gate  to  a  point  on  its  road  not  nearer  to  such  limits  than  eighty  rods,  and  so 
much  of  its  road  as  is  included  within  the  limits  of  such  city  or  village  shall  become 
a  public  street,  and  be  kept  in  repair  as  other  public  streets,  but  no  toll  shall  be  taken 
thereon;  but  compensation  shall  be  made  to  the  company  for  the  damages  it  will 
sustain  by  reason  of  such  removal  of  its  toll-gate,  and  surrender  of  such  part  of  its 
road,  and  if  the  company  and  the  proper  authorities  of  the  city  or  village  do  not  agree 
thereon,  the  damages  shall  be  ascertained  in  proceedings  which  the  municipal  authori- 
ties shall  commence,  to  appropriate  such  property  to  the  use  aforesaid,  in  the  manner 
provided  by  law  for  the  appropriation  of  property  by  municipal  corporations,  or,  in 
default  of  such  agreement,  or  the  institution  of  such  appropriation  proceedings,  the 


MORTGAi 


335 


Turnpike  and  Avenue  Companies, 


company,  at  any  time  after  the  removal  of  the  to 
the  city  or  village,  by  civil  action.     (March 
75  v.  90,  §  34;    S.  &  S.  841;    S.  &  C.  339.) 


Refers    only   to    location    of    gate  —  does 
not   limit   right   to   toll. 

A  loll  gate  properly  located  outsi  le  the  pre 
scribed  boundaries  may  charge  and  collei 
imt  only  for  the  .eighty  rods  leading  to  the 
city  limits,  bul  also  for  such  pa r1  ol  the  road 
as  is  lawfully  within  the  city  limits.  —  Turn- 
pike ('<>.  v.  Springfield,  21  Oh,  Si.  584  (  1ST:,). 
But  see  Turnpike  Co.  v.  Kelley,  II  Oh.  St. 
1  !4  (  iss.-)).  holding  thai  il  is  unlawful  to 
colled  loll  at  a  vale  on  n  turnpike  road 
brought  within  the  municipal  limits  by  the 
extension  I  hereof  beyond  it. 

See  Madisonville  v.  Turnpike  Co..  17   W.  L. 
B.  30  (1886),  for  a  review  of  the  decisions. 

Must  condemn  whole. 

Municipality  cannot  condemn  less  than  the 
whole  of  a  turnpike  within  its  limit-.      -Turn 
pike  Co.  v.  Cincinnati,  2  W.  L.  B.  126  I  1877). 

Sec   also,  Rood   Co.  v.   Riverside,   2~>   Oh.   Si. 
C.5S   (1874). 

Nature  of  proceedings. 

Trcmainsville  Co.  v.  Toledo,  31  Oh.  St.  588 

(1877). 

No   removal  prior  to   compensation. 

Where,  by  the  extension  of  the  municipality, 
a  turnpike  having  a  toll-gate  thereon  is  em- 


1    within    tl 
r\e    I    nol    b 

i 
ough,  .".   \\  .   I. 
pike  I  ....  i  \.  p 

Measure  of  damagi  v. 

Turnpike   Co.    v.    I 
(1899 

•li.  5   \\  .    i 
'I'm  npike  Co.,  18  W.  I..  B 

No  injunction  at  suit  of    in.'i       It    ,1 

An  in j unci  ion  aga  insl  a  tui 
iir.  1 1   toll  gat<    within  eig 
limits   will    nol    be   gi  anted   a  I 
private     individual 

fr t  he  genei  a  I  public. 

Co.,   1    W.    I..    B.   132 
pike  Co.,  I  \.  P.  235 

Mandamus  proper  remedy. 

Where    a    turnpike    is    maintained 

eighty  roils  of  the  city  limits,  the 
manda  rnus  aga  insl  city  to  ii 
tion  proceedings.     -G 
X.  P.  235  I  L897  I  ;  -.  c,  6  Dec. 


§  3492.  MAY  SELL  BRIDGE  OR  ROAD  IN  SUCH  LIMITS  TO  CITY  OR  VIL- 
LAGE. —  A  company,  any  part  of  whose  road  or  bridge  is,  or  hereafter  becomes, 
embraced  within  the  corporate  limits  of  a  city  or  village  may  contract  with  the  proper 
authorities  of  such  city  or  village,  or  of  the  township  or  county  in  which  the  Ban 
situate,  for  the  disposal,  release,  and  abandonment  of  such  part  of  its  road  or  bridge, 
for  such  compensation  and  upon  such  terms  as  may  be  agreed  upon  between  the  com- 
pany and  such  authorities;  and  any  such  contract  heretofore  made  shall  be  as  good 
and  valid  as  if  made  under  and  by  virtue  of  this  section.  (April  11,  1856.  53  v.  180. 
§  1;    S.  &  C.  338.) 


§  3493.  FORECLOSURE  OF  MORTGAGES  ON  ROADS.  —  When  a  company  exe- 
cutes a  mortgage  upon  its  road,  or  any  part  thereof,  the  mortgagee  or  the  assigned 
thereof,  may,  at  any  time  after  the  money  secured  by  the  mortgage  becomes  due. 
foreclose  the  mortgage  in  the  same  manner  as  if  it  were  upon  real  estate,  and  the  sale 
so  made  shall  be  held  to  pass  to  the  purchaser  the  corporate  franchises  of  such  com- 
pany as  fully  as  the  mortgagor  held  the  same  at  the  time  of  executing  the  morti: 
and  the  laws  relating  to  the  foreclosure  of  mortgages  upon  real  estate  shall  be  appli- 
cable to  the  foreclosure  of  mortgages  upon  turnpikes  or  plankroads.  (April  16.  1  - 
54  v.  179,  8  1:    S.  &  C.  339.) 


Right  to  take  toll  is  property. 

This    section    and    the    next    show    thai     th< 
franchise  of  taking  tolls   is   property    in   the 


enlarg 

Parks.  50  Oh.  Si    568,  57S 


§  3494.    APPRAISERS:    THE  PURCHASER  TAKES  THE   FRANCHISES.  —  In 
such  proceeding  the  court  shall  appoint  the  appraisers,  and  when  the  road  runs 
or  through  more  than  one  county  it  may  order  the  same  to  be  appraised  and 
entire  or  in  parcels  as  to  it  may  seem  expedient;    and  the  purchaser  of  any  such  roa 


336 


Private  Corporations  in  Ohio. 


Turnpike  and  Avenue  Companies,  §§  3495-3498. 


or  part  thereof  shall  be  entitled  to  exercise  all  the  corporate  franchises  purchased  as 
fully  as  they  belonged  to  such  company  before  such  sale,  in  any  name  that  may  be 


assumed  by  such  purchaser. 
See  note  under  §  3493. 


(April  16,  1S57,  54  v.   179,  §  2;    S.  &  C.  339.) 


§  3495.  HOW  EOAD  SURRENDERED  TO  COUNTY.  —  Any  company  having  its 
road  located  or  constructed,  or  having  the  corporate  right  to  construct  any  such  road, 
through  or  into  any  county  or  counties  of  this  state,  may,  with  the  consent  of  three- 
fourths  of  the  stockholders,  and  with  the  like  consent  of  all  of  the  commissioners  of 
such  county  or  counties,  relinquish  and  transfer  to  the  commissioners  of  such  county 
or  counties  the  whole  or  any  part  of  its  road,  together  with  all  rights  and  privileges 
appertaining  thereto;  but  any  such  transfer  to  such  commissioners  shall  be  limited 
to  the  part  of  such  road  within  the  boundaries  of  such  counties  respectively,  and  the 
transfer  shall  be  without  consideration,  and  no  tolls  shall  be  collected  on  such  road 
within  such  county  or  counties.  (March  11,  1853,  51  v.  405,  §  1;  January  25,  1861, 
58v.  5,  §  1;    S.  &  C.  333;    S.  &  S.  678.) 


Commissioners'  assent  necessary. 

No  valid  transfer  can  be  made  to  the  com- 
missioners of  the  county  without   the   assent 


of    such    commissioners.  —  State    ex 
Turnpike  Co.,  16  Oh.  St.  308  (1S65). 


rel. 


§  3496.  HOW  SUCH  TRANSFER  TO  BE  EVIDENCED.  —  Such  transfer  shall  be 
evidenced  by  the  execution  of  a  written  declaration,  signed  by  the  president  or  other 
principal  officer,  and  the  secretary  or  other  recording  officer,  and  under  the  seal  of 
the  company,  and  shall  take  effect  and  have  full  force  when  there  is  deposited  with 
the  auditor  of  the  county  within  which  the  relinquished  road  lies  the  written  declara- 
tion, or  a  copy  threof,  and  an  entry  is  made  upon  the  journal  of  the  commissioners  of 
such  county,  of  an  acceptance,  signed  by  all  the  commissioners,  of  such  relinquish- 
ment or  transfer;  which  written  declaration,  so  deposited,  shall  be  entered  by  the 
auditor  upon  his  record  of  roads,  and  thereafter  such  road,  or  part  of  road,  shall  be 
under  the  control  of  the  commissioners  of  the  county  in  which  the  same  lies,  who 
shall,  by  a  proper  order,  provide  that  the  same  shall  be  a  public  highway,  and  that 
no  tolls  be  collected  thereon  within  the  limits  of  such  county.  (January  25,  1861, 
58  v.  5,  §  2;    S.  &  S.  678.) 


§  3497.  PRIVATE  SALE  OF  ROADS.  —  Any  such  company  may,  with  the  con- 
sent of  three-fourths  of  the  stockholders,  relinquish  and  transfer,  by  sale  or  other- 
wise, to  any  person  or  persons  other  than  commissioners  of  counties,  the  whole  or  any 
part  of  its  road,  together  with  all  rights  and  privileges  appertaining  thereto,  which 
sale  or  relinquishment  shall  be  evidenced  by  a  written  deed  of  conveyance,  under  the 
seal  of  such  company,  signed  by  the  president  or  other  principal  officer  of  such  com- 
pany, and  the  secretary  or  other  recording  officer  thereof,  which  shall,  before  it  shall 
have  any  validity  or  effect,  be  recorded  in  the  official  records  of  deeds  of  each  county 
within  which  the  road  or  any  part  thereof  which  has  been  so  sold  and  conveyed  lies, 
or  be  left  for  record  in  the  office  containing  such  official  records;  but  such  sale  or 
transfer  may  be  made  upon  the  consent  of  the  holders  of  three-fourths  of  the  entire 
stock  of  the  company,  the  holders  of  the  stock  so  consenting  in  that  case  to  be  liable 
in  their  individual  capacity  to  any  stockholder  not  assenting,  for  such  loss  or  injury 
as  such  non-assenting  stockholder  may  sustain  by  reason  of  such  sale  or  transfer. 
(April  17,  1857,  54  v.  198,  §  3;    S.  &  C.  340.) 

§  3498.  WHEN  AND  HOW  A  ROAD  MAY  BE  SOLD  TO  COUNTY  COMMIS- 
SIONERS. —  The  board  of  directors  of  any  company,  when  authorized  so  to  do  by  a 
vote  of  the  holders  of  a  majority  of  the  stock  of  the  company,  represented  at  a  meet- 
ing of  the  stockholders  called  for  that  purpose  by  either  (of)  the  board  of  directors  or 


PURCH  ^SE    I:',     I  33"/ 


Turnpike  and  Avenue  Com] 


ten  stockholders  of  the  company,  of  which  al   leasl   twenty  days'  pul  has 

been  given  by  advertisement  in  not  more  than  two  new 

where  such  road  or  part  thereof  is  situate,  shall  sell  an 

of  its  road  to  the  commissioners  of  the  county,  together  with  all 

appertaining  thereto,  which  sale  cr  relinquishment  shall   h<-  evlden 

deed  of  conveyance,  under  the  seal  of  such  company,  signed  by  the  | 

principal  officer  of  such  company,  and  the  secretary  or  other  recordh 

which  shall,   before  it  shall   have  any  validity  or  effect,  be  recorded    I 

records  of  deeds  of  each  county  within  which  the  road  or  any  p  has 

been  so  sold  and  conveyed  lies,  or  be  left  for  record  in  the  office  containing  su< 

records.     (S.  &  C.  339.) 

§  3498a.  COUNTY  COMMISSIONERS  MAY  PURCHASE  TOLL-ROADS  V. 
PETITIONED  TO  DO  SO;  QUESTION  OF  PURCHASE  TO  BE  SUBMITTED  TO 
VOTE.  —  The  county  commissioners  of  any  county  in  the  state,  when  peti- 
do  so  by  at  least  fifty  freeholders,  citizens  of  the  counties,  shall  and  they  are  hereby 
authorized  and  required  to  purchase  any  or  all  of  the  toll  roads  or  parts  of  toll-roads 
within  said  counties,  as  hereinafter  provided;  provided  however  that  before  such 
purchase  is  made  the  commissioners  of  the  county  in  which  the  people  shall  vote  in 
favor  of  purchasing  the  toll  roads,  shall  make  an  order  to  that  effect  on  their  journals 
and  submit  the  purchase  to  the  voters  of  said  county  either  before  or  after  an  appraise- 
ment of  the  value  of  the  roads  has  been  had,  at  any  regular  spring  or  fall  election, 
giving  at  least  ten  days'  notice  thereof,  in  at  least  two  newspapers  published  in  the 
county;  and  at  such  election  the  voters  who  are  in  favor  of  such  purchase  shall 
inscribe  on  their  ballots,  Purchase  of  toll  roads,  Yes;  and  those  opposed  thereto  shall 
inscribe  on  the  ballots  Purchase  of  toll  roads,  No;  and  if,  at  any  such  election,  a 
majority  of  those  voting  on  said  question  are  in  favor  of  such  purchase,  the  said 
commissioners  may  make  such  purchase,  but  not  otherwise.  The  vote  on  said  ques- 
tion shall  be  returned  by  the  judges  of  election  to  the  clerk  of  the  court  of  common 
pleas,  who  shall  open,  count,  and  declare  the  same,  as  in  an  election  for  county  officers, 
and  certify  the  same  to  the  county  commissioners.     (March  25,  1880,  77  v.  83.) 

Cited  in  Turnpike  Co.  v.  Parks,  50  Oh.  St.  568,   582    I  1893    ;    Warden    •■ 
3S  Oh.  St.  639,  040   (1883). 

§  3499.  HOW  TOLL-ROADS  VOTED  TO  BE  PURCHASED  BY  COUNTIES 
APPRAISED.  —  In  any  county  where,  heretofore  or  hereafter,  an  affirmative  vote  has 
been  or  may  be  given  at  any  general  election,  in  favor  of  purchasing  any  or  all  the 
toll-roads,  or  parts  thereof,  lying  within  such  county,  at  a  price  to  be  fixed  by  three 
disinterested  appraisers,  who  shall  be  appointed  as  follows:  One  by  the  court  of  com- 
mon pleas  of  the  county,  or  a  judge  of  said  court  resident  of  the  subdivision  in  which 
the  county  is  situate;  one  by  the  probate  judge  of  the  county,  and  one  by  the  com- 
missioners of  the  county;  said  appraisers,  after  being  sworn  faithfully  and  honestly 
to  discharge  their  duties  in  that  behalf,  shall  personally  inspect  the  road  or  roads,  or 
parts  thereof,  so  far  as  the  same  may  be  within  such  county,  and  make  and  return  in 
writing,  to  the  commissioners,  a  valuation  of  each  cf  the  roads  or  parts  thereof;  an  1 
if  the  commissioners,  from  any  cause,  fail  to  purchase  any  road  or  part  thereof, 
other  appraisers  may  be  appointed  in  the  same  manner.  But  nothing  herein 
tained  shall  prevent  the  commissioners  from  making  or  receiving  propositions,  and  t 
purchase  at  any  time  within  two  years  after  an  appraisement  has  been  had  B 
appraised  price;  any  law  heretofore  passed  to  the  contrary,  notwithstanding.  (April 
15,  1881,  78  v.  149;    April  12,  1880,  77  v.  187;    Rev.  Stat.  1880.) 

§  3500.  THE  PURCHASE  BY  THE  COMMISSIONERS.  AND  EFFECT  THEREOF. 
—  If  the  report  is  satisfactory,  and  the  commissioners,  or  a  majority  of  them,  indorse 
their  approval  thereon  as  to  all  or  any  of  the  roads,  or  parts  thereof,  they  shall  cause 

LAW    GOV.    PRIV.    COR. —  22. 


338  Private  Corporations  in  Ohio. 


Turnpike  and  Avenue  Companies,  §§  3501-3502. 


an  entry  to  be  made  to  that  effect  on  their  journal,  and  thereupon  they  may  purchase 
the  same  at  a  price  not  exceeding  such  appraisal,  and  pay  such  company  or  companies, 
in  money  or  in  bonds  to  be  issued  as  hereinafter  specified,  and  thereupon  such  roads 
or  parts  thereof  so  purchased,  shall  cease  to  be  toll-roads,  and  become  free  roads,  to 
be  kept  in  repair  in  the  manner  prescribed  in  chapter  10,  title  7,  part  2. 

§  3501.  THE  ISSUE  OF  BONDS  FOR  PURCHASE,  AND  THE  TAX  FOR  THEIR 
REDEMPTION.  —  For  the  purpose  of  paying  for  such  roads  or  parts  thereof,  the 
commissioners  shall  issue  bonds  payable  at  such  times,  and  in  such  amounts  as  will 
be  as  near  as  practicable  equal  to  the  semi-annual  collection  of  taxes  levied  for  that 
purpose,  which  bonds  shall  bear  interest  at  a  rate  not  exceeding  six  per  centum,  pay- 
able semi-annually,  which  bonds  may  be  delivered  to  such  companies  in  payment  for 
such  roads,  or  parts  thereof,  or  sold  for  money  at  not  less  than  their  par  value,  but 
such  bonds  shall  not  run  more  than  eight  years  from  date,  and  for  the  payment 
thereof  the  commissioners  shall  levy,  annually,  on  all  the  taxable  property  of  such 
counties,  in  addition  to  the  taxes  they  are  otherwise  authorized  to  levy,  such  sum 
as  will  fully  pay  such  bonds  and  the  interest  thereon.  (April  15,  1881,  78  v.  149; 
Rev.  Stat.  1880.) 

Constitutional.  I  public,  is  a  constitutional  exercise  of  the  tax- 

The   levying   of   taxes   for   the   purchase   of    ing    power.  —  Warder    v.    Commissioners,    33 
toll  roads,  in°order  to  make  them  free  to  the  |  Oh.  St.  039   (1883). 

§  3501a.  TAXES  AND  ASSESSMENTS  FOR  CONSTRUCTION  OF  FREE 
TURNPIKES  MAY  BE  REFUNDED.  —  The  commissioners  of  the  counties  are 
hereby  authorized  and  directed  to  refund  to  all  persons  residents  of  their  respective 
counties,  who  have  paid  or  may  be  required  to  pay,  any  tax  or  assessment  for  the 
construction  of  any  free  turnpike  road  or  roads  under  the  acts  of  March  29,  1867, 
April  15,  1867,  March  29,  1875,  and  part  second,  title  seven,  chapter  seven  of  the 
Revised  Statutes  of  Ohio,  or  the  acts  amendatory  thereof,  or  supplementary  thereto, 
which  road  has  not  been  converted  into  a  toll-road;  for  the  purpose  of  adjusting  this 
refunding  of  assessments,  the  auditors  of  such  counties  shall  prepare  a  book  of  such 
assessments  paid  in  the  counties,  in  which  shall  be  noted  all  amounts  so  refunded, 
and  in  no  instance  shall  the  amount  so  refunded  exceed  the  amount  they  have  paid 
or  may  be  required  to  pay  towards  the  purchase  of  toll-roads  or  parts  of  toll-roads  in 
their  respective  counties;  provided,  that  all  persons  who  shall  demand  or  accept  the 
refunding  of  the  assessments  paid  by  them,  or  any  part  thereof,  shall  thereby  release 
all  right  to  have  the  road  or  roads,  to  the  construction  of  which  they  have  contributed, 
to  be  converted  into  a  toll-road  or  roads;  and  in  any  attempt  to  convert  such  road  or 
roads  into  toll-roads,  the  names  of  such  persons  and  the  assessments  by  them  con- 
tributed, shall  be  counted  against  the  conversion  of  such  road  or  roads,  or  parts 
thereof,  into  toll-roads;  and  for  the  purpose  of  refunding  such  assessments  the  com- 
missioners are  authorized  to  issue  bonds  in  such  amounts  as  will  be  necessary,  which 
bonds  may  run  not  to  exceed  eight  years,  and  bear  not  to  exceed  six  per  cent,  interest, 
payable  semi-annually;  for  the  payment  of  such  bonds  the  commissioners  are 
required  to  levy  on  all  the  taxable  property  of  the  county  such  sum,  annually,  as 
will  fully  pay  said  bonds  and  the  interest  thereon,  in  addition  to  the  taxes  they  are 
otherwise  authorized  to  levy.     (April  26,  1890,  87  v.  335;   April  15,  1881,  78  v.  149.) 

Constitutional.  .     . 

The  levying  of  a  tax  to  refund  assessments    is    constitutional.  —  Warder    v.    Commission- 
ers, 38  Oh.  St.  639   I  L883). 

§  3502.  FEES  OF  APPRAISERS,  COUNTY  AUDITOR,  AND  TREASURER.  — 
Such  appraisers  shall  be  paid  by  the  county,  upon  the  allowance  of  the  commissioners, 
three  dollars  per  day  and  their  necessary  expenses,  for  the  time  actually  employed  in 
the  business  of  their  appointment;    and  the  county  auditor  and  county  treasurer,  for 


OLIDATK  339 


Turnpike  and  Avenue  Companies. 


their  services  under  the  preceding  section,  shall  be  entitle  'I   to 
rate  of  fees  now  allowed  to  them  by  law  for  like  services. 

§  3503.    SALE  OF  ROAD  IN  ONE  COUNTY  DOES  NOT  Ali  HON  07 

ROAD  IN  ANOTHER.  —  The  sale  by  any  company  owning  a  toll   i 
of  such  road  as  lies  within  any  county,  shall  not  affect  its 
such  part  or  parts  of  its  road  as  may  be  situate  outside  of  such  county. 

§  3504.    TRANSFER  NOT  TO  AFFECT  CREDITORS.  —  No  relinq  sale, 

or  transfer  herein  provided  for  shall  prejudice  or  affect,  in  any  way 
creditor  of  the  company  which  makes  the  same,  nor  shall  the  | 
preceding  sections  extend  or  be  applicable  to  any  road  in  which  the  state  is  i 
as  a  stockholder.     (April  17,  1857,  54  v.  198,  ^  4;    S.  &  C.  340.) 

§  3505.    ADDITIONAL  STOCK  AUTHORIZED.  —  The  directors  of  any  company 
may  open  books  oi  subscription  along  the  line  of  its  road  for  the  purpose  <  : 
additional  stock  for  the  completion,  extension,  planking,  or  otherwise  improving  or 
repairing  its  road.     (March  12,  1853,  51  v.  395,  §  1;    S.  &  C.  334.) 

§  3506.     TWO   OR  MORE   COMPANIES   MAY  CONSOLIDATE.  —  When   two   or 
more  turnpike  or  plankroad  companies  desire  to  consolidate  themselves  into  a  single 
corporation,  they  may  do  so  in  the  manner  and  subject  to  the  rules  provided  iii 
title  for  the   consolidation  of  railroad  companies.     (May    1,    1852,   50  v.    27  1. 
S.  &  C.  298.) 

§  3507.  MAY  ASSIST  A  ROAD  WHICH  IS  AN  EXTENSION.  —  The  directors 
of  any  such  company  may  subscribe  and  pay  such  sums  of  money  as  the  majorr 
the  stockholders  instruct  them  to  subscribe,  to  build  and  keep  in  repair  any  turnpike 
or  plankroad  that  is  a  continuation  or  an  extension  of  its  road;  but  such  subscription 
shall  not  exceed  the  net  revenue  of  its  road.  (April  12,  1858,  55  v.  160,  ;  1:  S.  &:  C. 
340.) 

§  3508.  MAY  ASSIST  AN  INTERSECTING  FREE  TURNPIKE.  —  The  directois 
of  any  company  may  subscribe  and  pay  such  sums  of  money  as  they  may  think  advis- 
able to  build  and  keep  in  repair  any  free  turnpike  road  that  intersects  their  road; 
but  such  subscription  shall  not  exceed  the  dividends  of  their  company,  and  three- 
fourths  of  the  stockholders  cf  the  company  must  consent  to  the  subscription.  (  I 
1,  1854,  52  v.  131,  §  1;   S.  &  C.  370.) 

§  3509.  ACCOUNTS  EACH  COMPANY  MUST  KEEP.  —  Every  company  shall 
cause  to  be  kept  a  fair  and  accurate  account  of  the  whole  expense  of  making  its  road, 
with  the  expense  of  toll-gatherers,  and  all  other  necessary  agents  or  officers  whom  the 
company  may  find  it  convenient  to  employ,  and  a  fair  and  accurate  account  of  the 
amount  of  toll  received;  the  books  of  every  company  shall  always  be  open  for  the 
inspection  of  the  commissioners  of  any  county  through  or  into  which  is  passes,  or  of 
the  agent  of  the  general  assembly  of  the  state  and  of  any  stockholder;  and  it 
company  refuse  or  neglect  to  exhibit  its  accounts,  agreeably  to  the  provisions  of 
section,  when  required  to  exhibit  them  by  such  commissioners  or  agent,  all  the 
rights  granted  by  this  chapter,  and  its  right  to  be  a  corporation,  shall  cease  and  deter- 
mine.    (May  1,  1852,  50  v.  274,  §  40;    S.  &  C.  297.) 

§  3510.  THE  BOOKS  A  COMPANY  MUST  KEEP.  —  The  directors  cf  each  com- 
pany shall  cause  books  to  be  kept,  in  which  shall  be  entered  all  the  tiansactions  of 
the  company,  with  the  dates  of  such  transactions:  also  stock  books,  in  which  shal1  be 
entered  the  r.ames  of  the  stockholders,  the  number  of  shares  of  stock  owned  by  each, 


340  Private  Corporations  in  Ohio. 

Turnpike  and  Avenue  Companies,  §§  3511-3515. 

and  all  transfers  of  stock  made  during  each  year,  and  by  and  to  whom  made;  on  the 
first  Monday  of  January  of  each  year  the  directors  shall  cause  a  statement  to  be  made 
in  such  stock  books,  showing  the  names  of  the  owners  of  the  stock  of  the  company,  ani 
the  respective  number  of  shares  held  by  each;  and  all  books  herein  provided  for  shall, 
at  all  proper  times,  be  open  to  the  inspection  of  any  stockholder.  (April  17,  1868, 
65  v.  89,  §  1;    S.  &  S.  146.) 

§  3511.  TOLL-GATE  KEEPERS  MUST  REPORT.  —  A  keeper  of  a  toll-gate  shall, 
on  the  first  Monday  of  January  of  each  year,  and  at  such  other  times  as  may  be 
required  by  the  company,  make  a  report  in  writing,  under  oath,  showing  the  amount 
of  toll  received  at  each  gate  respectively  for  the  preceding  year,  the  amounts  paid  to 
the  company  from  time  to  time,  the  amounts  retained  on  account  of  salaries  of  gate- 
keepers, the  amount  of  tolls  outstanding  and  uncollected,  and  also  who  and  to  what 
amount  persons  have  passed  through  such  gates  without  paying  tolls,  and  by  whose 
orders  such  persons  have  so  passed;  and  all  such  statements  shall  be  submitted  to 
the  stockholders  at  their  annual  meeting  on  the  second  Monday  of  January  of  each 
year.     (April  17,  1868,  65  v.  89,  §  2;    S.  &  S.  147.) 

§  3512.  DIRECTORS'  ANNUAL  REPORT  TO  STOCKHOLDERS.  —  The  directors 
of  each  company  shall  cause  to  be  made,  in  writing,  and  submitted  to  the  stockholders 
of  the  company,  at  the  regular  meeting  of  the  stockholders  on  the  second  Monday  of 
January  of  each  year  —  notice  of  which  meeting  shall  be  given  by  the  directors,  by 
publication  for  four  consecutive  weeks,  in  a  newspaper  printed  and  of  general  circu- 
lation in  each  county  in  which  any  part  of  the  road  is  situate  —  a  report  of  the  trans- 
actions of  the  company  for  the  year  next  preceding,  which  report  shall  show  the 
amount  of  revenue  received  by  the  company  from  all  sources  during  the  year,  and  the 
amount  of  tolls  received  at  each  gate  respectively,  also  a  statement  in  detail  of  all 
the  items  of  expenditure  of  the  company  for  all  purposes,  including  the  amount 
expended  on  each  mile  of  the  road  respectively;  the  amount  paid  to  each  officer  of  the 
company  for  his  services,  the  amount  paid  to  gate-keepers  for  salaries  or  otherwise, 
and  the  amount  of  money  on  hand  after  paying  expenses  of  the  company;  also  a  state- 
ment of  the  outstanding  liabilities  of  the  company  and  to  whom  owing,  and  of  the 
amounts  due  to  the  company,  and  by  whom  owing,  and  how  secured;  and  the  direct- 
ors shall  order  a  dividend  to  be  made  of  the  money  then  on  hand,  unless  otherwise 
ordered  by  a  majority  of  persons  present  at  such  meeting  owning  stock  in  the  com- 
pany.    (April  17,  1868,  65  v.  89,  §§  3,  5;    S.  &  S.  147.) 

§  3513.  TREASURER  TO  HOLD  NO  OTHER  OFFICE  IN  COMPANY.  —  The 
treasurer  of  a  company  shall  hold  no  other  office  in  the  company,  and  when  appointed, 
and  before  assuming  the  duties  of  his  office,  he  shall  take  an  oath  of  office,  and  give 
bond,  with  security  to  the  satisfaction  of  the  board  of  directors,  conditioned  for  the 
faithful  performance  of  his  duties  according  to  law.  (April  17,  1868,  65  v.  89,  §  4; 
S.  &  S.  147.) 

§  3514.  TOLL-GATE  KEEPER  TO  BE  DEEMED  THE  AGENT  OF  THE  COM- 
PANY. —  The  keeper  of  a  gate  on  any  turnpike  or  plankroad  shall  be  deemed  and 
held  to  be  the  agent  of  the  company  or  person  owning  the  road;  and  judgment 
obtained  against  any  such  gate-keeper  for  a  violation  of  this  chapter,  shall  be  con- 
sidered and  held  to  be  a  judgment  against  the  company  or  person  owning  the  road, 
and  execution  may  issue  thereon  accordingly  against  the  gate-keeper  and  such  com- 
pany or  person.     (May  1,  1862,  59  v.  101,  §  4;    S.  &  S.  150.) 

• 

§  3515.  HOW  OBSTRUCTING  FENCES  MAY  BE  REMOVED.  —  If  a  person 
whose  fence  is  upon,  or  who  erects  a  fence  upon,  the  limits  of  a  turnpike  or  plankroad, 
or  who  places  within  the  limits  of  such  road  any  wood,  stone,  or  other  obstruction, 


Assessment  Ag  kholdi  341 


Turnpike  and  Avenue  Comp:  i 


other  than  permanent  buildings  already  cons- 
travel  upon  such  road,  or  prevents  or  interferes  v. 
fide  drains  or  ditches  of  such  road,  upon  beii  led  by  th< 

or  the  superintendent  of  such  road  to  remove  Bucfa  fi  ace  or  oth( 
or  refuse  to  comply  with  such  requirements  within  ten  da 
notice,  he  shall  forfeit  and  pay  to  and  for  the  benefi- 
load  a  sum  not  less  than  one  nor  more  than  ten  dollan 
mits  such  fence  or  obstruction  to  remain  upon  bu  after  th< 

days  from  the  service  of  such  notice;    which  sum  shall  be  recov 
name  of  the  company,  before  any  justice  of  the  peace  of  the  township  v. -  ■. 
is  situate  or  the  obstruction  placed.     (March  28,  1861,  58  v.  43,  §   1;    B 

§  3516.    COMPANY  MAY  ASSESS  STOCKHOLDERS.  —  When    the  stork), 
of  a  turnpike  or  plankroad  company  are  individually  liable  for  the  liabilities:  01 
company,  the  proportion  that  each  stockholder  shall  be  required  to  pay  to  meet  >■■■ 
ing  liabilities  may  be  determined  and  collected  in  the  manner  hereinafter  prov; 
(April  8,  1856,  53  v.  99,  §  1;    S.  &  C.  338.) 

§  3517.    NOTICE  OF  MEETING  FOR  THAT  PURPOSE.  —  The  directors  of  any 
such  company,  desiring  to  take  such  action,  may  give  notice  to  the  stockholders  by 
publication   for   at   least   thirty   days   in   at   least   two    newspapers   published    In 
counties  in  which  the  road  is  located,  for  a  meeting  of  the  stockholders,  specil  . 
the  time   and  place  of  meeting,   and  the   object  thereof.     (April   8,    1856,   b'-i   v 
§§  2,  7;    S.  &  C.  338.) 

§  3518.  PROCEEDINGS  THEREAT.  —  At  such  meeting  a  detailed  statement 
shall  be  submitted,  showing  the  assets  and  indebtedness  of  the  company;  and  a 
majority  of  the  stockholders  may  there  determine  upon  the  basis  for  assessing 
stockholders  to  meet  the  indebtedness  of  such  company,  and  fix  the  time  or  times,  and 
the  mode,  for  the  payment  cf  the  amount  assessed  against  each  individual  or  cor- 
poration.    (April  8,  1856,  53  v.  99,  §§  3,  4;    S.  &  C.  338.) 

§  3519.  COLLECTION  OF  ASSESSMENTS.  —  No  stockholder  shall  be  liable 
beyond  the  sum  fixed  by  the  charter  of  such  company,  and  all  assessments,  when 
paid,  shall  be  a  credit  on  his  liability;  and  a  stockholder  who  fails  to  pay.  as  required, 
the  amount  so  assessed,  shall  be  liable  to  an  action  in  the  name  of  the  company 
the  recovery  thereof,  as  in  other  cases  of  indebtedness.  (April  8,  1856,  53  v.  99, 
§§  5,  6;    S.  &  C.  338.) 

§  3520.  THOSE  ASSESSED  FOR  IMPROVED  ROADS  MAY  BECOME  INCOR- 
PORATED. —  When  a  majority  of  the  landholders  whose  lands  have  been  or  hereafter 
may  be  assessed  to  construct  a  road  by  virtue  of  proceedings  had  under  the  act  of 
March  29,  1867,  and  the  acts  supplementary  thereto  and  amendatory  thereof  desire 
to  incorporate  themselves  into  a  turnpike  company,  they  may  proceed  in  the  manner 
provided  in  chapter  one;  but  in  their  articles  of  incorporation  they  shall  also  state 
that  the  road  has  already  been  constructed  under  and  by  virtue  of  said  act,  and  the 
amount  of  capital  stock  of  the  company  shall  be.  as  near  as  the  same  can  be  arrived 
at,  the  amount  expended  in  the  construction  of  the  road;  and  there  shall  be  annexed 
to  the  articles  of  incorporation  a  petition,  asking  for  the  incorporation  of  the  persons 
named  in  the  articles  of  incorporation,  for  the  purposes  therein  named,  which  petition 
must  be  signed  by  a  majority  of  the  landholders  whose  lands  have  been  taxed  for  the 
making  of  the  improvement,  accompanied  by  a  certificate  of  the  auditor  of  the  county 
in  which  the  road  is  located,  to  the  effect  that  the  petition  contains  the  signatures  of 
a  majority  of  the  landholders  whose  lands  have  been  so  taxed.  (May  7.  1869.  66  v. 
131,  §  16.) 


342  Private  Corporations  in  Ohio. 

Turnpike  and  Avenue  Companies,  §§  3521-3527. 

§  3521.  WEO  TO  BE  STOCKHOLDERS.  —  No  stock  book  shall  be  opened,  and 
no  subscriptions  received  to  the  stock  of  such  company;  the  auditor  of  the  county  in 
■which  any  road  is  located  shall,  on  demand,  furnish  to  the  corporators  a  certified  list 
of  the  landholders  whose  lands  have  been  taxed  for  the  construction  or  improvement 
of  the  road;  and  at  the  first  election  of  directors  and  officers  of  the  company,  each 
person  whose  lands  have  been  so  assessed  shall  be  entitled  to  one  vote,  and  no  more. 
(May  7,  1869,  66  v.  131,  §  17.) 

§  3522.  CERTIFICATES  OF  STOCK  TO  BE  ISSUED.  —  After  the  company  is 
organized  its  president  and  secretary  shall  issue  certificates  of  stock  to  each  land- 
holder for  the  number  of  shares  of  the  stock,  of  the  sum  which  may  be  designated  by 
the  directors,  and  fractions  of  a  share,  as  shall  amount  to  the  sum  assessed  upon  his 
lands,  and  which  he  has  already  paid  for  making  the  improvement;  and  they  shall 
also,  from  time  to  time,  after  the  assessment  on  each  landholder  each  year  is  paid, 
issue  like  certificates  for  the  amount  of  the  assessments  so  paid;  but  any  person 
whose  lands  have  been  assessed,  and  whose  assessments  have  been  paid,  may,  at  any 
time  after  the  organization  of  the  company,  become  a  stockholder  therein,  by  produc- 
ing and  exhibiting  to  the  secretary  of  the  company,  the  certificate  of  the  auditor  and 
treasurer  of  the  county,  showing  the  amount  of  the  assessment  on  the  lands  of  such 
person  for  the  improvement,  and  that  the  same  has  been  paid,  and  thereupon  the 
president  and  secretary  shall  issue  certificates  of  stock  to  him  for  the  amount  so  paid. 
(March  30,  1875,  72  v.  172,  §  18.) 

§  3523.  POWERS  OF  SUCH  COMPANIES.  —  A  company  so  incorporated  shall 
have  the  same  powers  and  be  subject  to  the  same  liabilities  as  other  turnpike  com- 
panies incorporated  under  the  laws  of  the  state.     (May  7,  1869,  66  v.  131,  §  19.) 

§  3524.  WHEN  SUCH  COMPANY  MAY  INCREASE  CAPITAL  STOCK.  —  A 
company  organized  as  provided  in  section  thirty-five  hundred  and  twenty,  may, 
with  the  assent  of  the  holders  of  a  majority  of  its  stock,  and  the  consent  of  the  county 
commissioners,  increase  its  capital  stock  to  such  an  amount  as  may  be  deemed  neces- 
sary to  extend  its  road  or  to  build  a  branch  road,  not  exceeding  five  miles  in  length, 
to  form  a  connection  with  any  other  similarly  improved  road  in  an  adjoining  county 
or  state.     (April  29,  1872,  69  v.  191,  §  1.) 

§  3525.  PROCEEDINGS  FOR  SUCH  PURPOSE.  —  For  the  purpose  of  increasing 
the  capital  stock  of  the  company  for  the  objects  heretofore  stated,  books  may  be 
opened  for  subscriptions,  under  the  direction  and  at  the  office  of  the  auditor  of  the 
county  in  which  the  company  is  located,  upon  giving  thirty  days'  previous  notice  in 
some  newspaper  published  and  of  general  circulation  in  the  county,  and  all  persons, 
whether  original  stockholders  or  otherwise,  may  become  subscribers  to  the  capital 
stock  of  the  company;  but  the  aggregate  of  such  subscriptions  shall  not  exceed  the 
amount  necessary  to  construct  or  build  such  road  or  branch;  and  if  a  company  so 
organized  refuse  its  assent  to  such  extension,  or  to  the  construction  of  such  branch 
road,  for  the  purposes  stated,  or  refuse,  by  the  vote  of  the  holders  of  a  majority  of  its 
stock,  to  increase  its  capital  stock  for  such  purposes,  a  stock  company  may  be  organ- 
ized under  chapter  one,  which  may  build  such  extension  or  branch,  and  erect  toll- 
gates,  as  provided  in  this  chapter.     (April  29,  1872,  69  v.  191,  §   1.) 

§  3526.  COMPANY  MAY  DIVIDE  ITS  ROAD.  —  A  company  whose  road  extends 
into  two  or  more  counties  may  subdivide  its  road  into  as  many  divisions  as  it  may 
determine,  as  hereinafter  provided,  and  may  reorganize  the  company,  so  as  to  have 
a  separate  corporation  for  each  of  the  subdivisions.     (May  13,  1878,  75  v.  527,  §  1.) 

§  3527.  PROCEEDINGS  TO  EFFECT  SUBDIVISION.  —  For  the  purpose  of  mak- 
ing such  subdivision  there  shall  be  a  meeting  of  the  stockholders  of  the  company,  at 
the  usual  place  of  meeting,  on  a  notice  of  at  least  four  weeks,  and  if  at  such  meeting 


I .!  \  v  on  Rom  343 

Turnpike  and  Avenue  Compani<  i 


the  owners  of  at  least  two-thirds  of  the  stock  of  the  compi 

ing,  the  subdivision  shall  be  made,  and  the  stock  of  the  i 

apportioned   among  the  several   new   corporations  as   previously   a| 

subdivision  shall  be  liable  for  its  proportion  of  the  debts  of  til 

in  proportion  to  its  stock;    and  the  action  of  the  stockholders'  meeting  shall   be  duly 

recorded,  and,  when  attested  by  the  president  and  secretary  of  th< 

thereof,  duly  certified  by  the  president  and  secretary,  shall  be  filed  with 

of  state,  and  shall  become  the  articles  of  incorporation  for  each   of  the  suhdiv. 

companies,    and    shall   be   recorded   as   other   articles    of    incorporation    are    recoi 

(May  13,  1878,  75  v.  527,  §  2.) 

§  3528.    REORGANIZATION  OF  SEPARATE  COMPANIES.  —  After  the  < 
cate  is  filed  with  the  secretary  of  state  each  of  the  subdivisions  shall  become  a  sepa- 
rate corporation,  and  reorganize  as  such  by  the  election  of  a   board   of  directoi 
other  turnpike  companies,  and  thenceforth  each  of  the  companies  shall  have  I 
powers,  and  be  conducted  in  all  respects,  as  other  companies;   and  the  ri  I  <ck- 

holders  in  each  subdivision  to  their  stock  and  property  shall  remain  and  continue 
therein  as  if  they  had  been  the  sole  stockholders  in  the  subdivision  prior  to  the  sub- 
division, subject,  however,  to  the  same  liabilities  of  stockholders  for  debts  of  the  cor- 
poration and  legislative  control  as  other  companies.     (May  13,  1878,  75  v.  527. 

§  3529.  NAMES  OF  NEW  COMPANIES.  —  The  name  of  each  of  the  companies 
of  such  subdivided  corporations  shall  be  such  as  may  be  assumed  and  designated  in 
the  certificate  of  incorporation.     (May  13,  1878,  75  v.  527,  §  4.) 

§  3530.  ROADS  MAY  BE  SOLD  ON  EXECUTION.  —  All  turnpikes  and  plank- 
roads  under  the  control  of  individuals  or  corporations,  and  held  as  property  or  as  a 
franchise,  shall  be  liable  to  sale  upon  execution,  in  the  same  manner  as  other  prop- 
erty.    (May  5,  1868,  65  v.  136,  §  1;   S.  &  S.  238.) 

Cited  in  Turnpike  Co.  v.  Parks,  50  Oh.  St.  568,  575  I  L893). 

§  3531.  THE  LEVY  AND  APPRAISEMENT.  —  All  such  property  shall  be  levied 
upon,  appraised,  and  sold  as  real  estate  is  appraised  and  sold;  and  the  appraisemen* 
shall  be  made  with  reference  to  the  value  thereof  for  the  purposes  for  which  it  is  or 
may  be  used,  and  shall  include  the  value  of  the  franchise  therewith  connected.  (May 
5,  1868,  65  v.  136,  §  2;    S.  &  S.  238.) 

§  3532.  WHEN  AN  ORDER  FOR  APPRAISEMENT  MAY  BE  MADE.  —  When 
any  such  property  is  levied  upon  and  not  appraised,  and  when  portions  of  such  prop- 
erty are  situate  in  two  or  more  counties,  the  court  in  which  the  judgment  was  rendered 
may,  upon  application  of  the  creditor,  order  the  same  to  be  appraised,  appoint 
appraisers,  and  have  the  same  sold  entire,  or  in  such  parcels  as  the  court  may  deem 
most  advantageous  to  the  debtor;  but  if  no  such  application  be  made  the  sheriff  shall 
proceed  as  in  other  cases.     (May  5,  1868,  65  v.  136,  §3;    S.  &  S.  238.) 

§  3533.  THE  PURCHASER  TAKES  THE  FRANCHISE.  —  The  purchaser  of  any 
such  road  shall,  upon  the  confirmation  of  the  sale,  be  entitled  to  hold  and  exercise  all 
the  corporate  franchises  purchased  at  such  sale,  as  fully  as  the  same  were  held  and 
exercised  by  the  debtor  before  such  sale,  in  any  name  assumed  by  the  purchaser. 
(May  5,  1868,  65  v.  136,  §  4:    S.  &  S.  238.) 

Cited  in  Turnpike  Co.  v.  Parks,  50  Oh.  St.  568,  575     I 

§  3534.  TRANSCRIPT  TO  BE  FILED  WITH  SECRETARY  OF  STATE.  —  Upon 
the  filing  with  the  secretary  of  state  of  a  duly  attested  copy  of  the  sale,  confirmation, 
and  conveyance  of  any  franchise  as  is  herein  provided  for.  such  transfer  shall  be 


344  Private  Corporations  in  Ohio. 

Turnpike  and  Avenue  Companies,  §§  3535-3536-2. 

recorded  in  the  same  manner  that  original  articles  of  incorporation  are  recorded;  and 
thereupon  the  franchise  shall  vest  absolutely  in  the  purchaser,  in  the  same  manner  as 
franchises  vest  in  original  corporators  upon  the  recording  of  the  certificate  of  incor- 
poration.    (May  5,  1868,  65  v.  136,  §  5;    S.  &  S.  238.) 

§  3535.  WHEN  RIGHT  TO  TAKE  TOLL  MAY  BE  SOLD  ON  EXECUTION.  — 
When  a  judgment  has  been  heretofore  or  is  hereafter  rendered  against  any  turnpike, 
plankroad,  or  bridge  company,  and  remains  unsatisfied  for  ten  days  after  the  rendi- 
tion thereof,  execution  may  issue  thereon  against  the  goods  and  chattels  of  the  com- 
pany, which  shall  be  levied  upon  and  sold  as  in  other  cases;  if  sufficient  goods  and 
chattels  can  not  be  found  to  satisfy  such  execution,  the  officer  holding  the  same  may, 
if  the  judgment  creditor  so  direct,  levy  upon  the  right  of  the  company  to  take  toll  at 
any  of  its  gates  within  the  jurisdiction  of  the  officer,  which  right  the  officer  shall 
advertise  and  sell  as  personal  property;  and  the  person  who  will  pay  the  amount  due 
upon  the  execution  for  the  right  of  using  such  gate  or  gates,  and  of  taking  toll  at  the 
same,  for  the  shortest  time,  shall  be  the  purchaser;  but  nothing  herein  contained  shall 
be  so  construed  as  to  deprive  the  company  of  the  same  right  to  give  bail  for  stay  of 
execution,  within  the  same  time  after  the  rendition  of  a  judgment  that  an  individual 
might  have.     (March  31,  1879,  76  v.  49,  §  1;    S.  &  C.  337.) 

Cited  in  Turnpike  Co.  v.  Parks,  50  Oh.  St.  508,  570    (1S93). 

§  3536.  CERTIFICATE  OF  SUCH  SALE,  AND  ITS  EFFECT.  —  The  officer  who 
makes  sale  of  the  right  to  take  toll  at  any  gate  as  aforesaid,  shall  give  to  the  pur- 
chaser a  certificate  thereof,  which  certificate  shall  be  sufficient  to  authorize  him  to 
take  possession  of  such  gate,  and  to  hold  the  same  during  the  time  for  which  the  same 
was  sold;  the  purchaser  shall  have  the  full  right  to  demand  and  receive  the  same 
tolls  of  and  from  all  passengers  passing  through  such  gate  as  have  been  established 
and  posted  up  by  such  company  according  to  law;  and  during  the  possession  thereof 
the  purchaser,  or  his  agent,  shall  conform  to  all  rules,  regulations,  and  contracts  of 
the  company,  in  the  same  manner  as  acquired  of  the  gatherers  of  toll  of  the  company, 
except  that  he  shall  hold  for  his  own  use  all  tolls  collected  at  such  gate  for  and  during 
the  time  for  which  he  purchased  the  same,  and  shall  keep  such  part  of  the  road  in  as 
good  repair,  so  long  as  he  holds  the  same  under  such  contract,  as  when  possession 
was  taken  thereof,  ordinary  wear  and  travel  excepted.  (March  31,  1879,  76  v.  49, 
§  2;   S.  &  C.  337.) 

§  3536-1.  Sec.  1.  AVENUE  COMPANIES  MAY  BE  INCORPORATED  IN  CER- 
TAIN COUNTIES;  MAY  APPROPRIATE  LANDS.  —  In  each  county  containing  a 
city  of  the  second  grade  of  the  second  class  companies  may  be  incorporated  for  the 
purpose  of  constructing  avenues,  in  the  counties  where  they  are  organized;  such 
avenues  shall  be  opened  not  more  than  one  hundred  feet  in  width,  at  least  sixty  feet 
of  which  shall  be  cleared  of  all  obstructions,  and  not  less  than  thirty  feet  shall  be 
made  an  artificial  road,  composed  of  stone,  gravel,  or  other  suitable  material,  well 
compacted  together,  in  such  manner  as  to  secure  a  firm  and  substantial  road,  and 
shall  not  be  less  than  one  mile  in  length,  and  they  may  enter  upon  and  appropriate 
any  lands  for  the  use  of  such  avenue,  according  to  the  provisions  of  the  statutes  for 
the  appropriation  of  private  property  by  corporations.     (March  31,  1879,  78  v.   103.) 

§  3536-2.  Sec.  2.  ERECTION  OF  TOLL-GATES  ON  CERTAIN  AVENUES  IN 
MONTGOMERY  COUNTY.  —  When  any  such  company  completes  not  less  than  one 
mile  of  any  such  avenue  to  the  acceptance  of  the  county  commissioners,  or  when  the 
whole  of  any  such  avenue  is  completed  to  such  acceptance  by  any  such  company,  the 
company  may  erect  a  toll-gate  thereon  at,  or  at  any  point  outside  of,  the  corporation 
line  of  such  city  for  the  collection  of  such  tolls  as  turnpike  companies  are  allowed  by 
law  to  collect.     (May  1,  1885,  82  v.  209;    April  6,  1881,  78  v.  103.) 


PART  X. 

BRIDGE  i  ORPORA  l  [l 

§3537.  Powers  of  bridge  companies. 

§3538.  Must   post   rates  of  toll. 

§3539.  Rates  of  toll  allowed. 

§3540.  May  make  and  enforce  regulations. 

§3541.  Powers  of  Ohio  river  bridge  companies. 

§3542.  Further  powers  of  Ohio  river  bridge  companies. 

§3543.  Rates  of  toll  prescribed. 

§3544.  May  lay  railway  tracks  on  bridge. 

§3545.  Mortgage  of  franchises  and  sale  of  obligations. 

§3546.  Railroad  companies  may   subscribe   to   -luck. 

§3547.  Consolidation  of  companies. 

§3548.  May  change  span  or  heighl  of  brid 

§  3548a.  May  borrow  to  construe!   or  maintain  avenues  or  ap] 

§3549.  May  own  and  run  certain  ferries;  rates  of  ferriage. 

§  3537.  POWERS  OF  BRIDGE  COMPANIES.  —  A  company  incorporated  to  con- 
struct a  bridge  over  any  stream  of  water  in  this  state  shall  either  own  the  bank  on 
each  side  of  the  stream  where  it  is  proposed  to  erect  its  bridge,  or  obtain  the  consent 
of  the  owner  or  owners  thereof,  in  writing,  to  occupy  the  same;  it  may  purchase,  or 
appropriate  in  the  manner  provided  by  law,  and  hold,  such  real  estate  as  will  be 
required  for  the  site  of  the  bridge,  and  suitable  avenues  or  approaches  leading  thereto, 
may  use  so  much  of  any  public  street,  road,  or  avenue  as  is  necessary  for  landings  and 
abutments,  and  may  appropriate  in  the  manner  provided  by  law  any  rights  or  fran- 
chises necessary  in  the  construction  of  the  bridge;  and  the  provisions  of  section  tl. 
four  hundred  and  ninety-two  shall  be  applicable  to  such  companies.  (April  29. 
1872,  69  v.   185,  §  55;    April  11,  1856,  53  v.  180,  §  1;    S.  &  C.  338.) 


May  hold   necessary   real   estate,   in   fee 
or  otherwise. 

A  bridge  company  is  authorized  to  pur- 
chase, appropriate  and  hold  any  interesi  i.i 
real  estate,  whether  an  estate  in  fee  simple  or 


a    less   estate,    which    in    the   opini 
directors  will  be  r<  quired   foi 
bridge    and    of    suitable    appn 
(  hereto.  —  <  'o\  ington    Bi  idge  ' 

et  ah.  4.".  W.  I..  B.  66     1900   . 


§  3538.  MUST  POST  RATES  OF  TOLL.  —  Such  company,  previous  to  receiving 
tolls  upon  its  bridge,  shall  set  up  and  keep  in  a  conspicuous  place  thereon  a  board, 
on  which  shall  be  written,  painted,  or  printed,  in  a  plain  and  legible  manner,  the 
rates  of  toll  which  are  charged  thereat;  and  if  its  charter  provides  that  such  rates 
shall  be  prescribed  by  the  court  of  common  pleas  of  the  proper  county,  and  the  com- 
pany demand  and  receive  any  greater  rate  of  tolls  than  the  rate  so  prescribed,  i'- 
shall  be  subject  to  a  fine  of  ten  dollars.     (May  1,  1852.  50  v.  274.  §  61 ;    S.  &  C.  301.) 


Rates  of  toll  must  be  posted. 

To  post  the  rates  of  toll  at  each  end  of  the 
bridge,  is  a  condition  precedent  to  the  right 
to  exact  tolls,  and  until  performed  the  collec- 
tion of  toll  is  unlawful.  —  Bonhain  v.  Taylor 
et  al.,  10  Ohio,  108   (1840). 


What  will  excuse  posting  of  tolls. 

Any  casual   interruption   in 
i  a  tea  of  toll,  caused  by  violen 
and   for  a  shorl   period,  would  tn>t  • 
company   of  any    right,   providi 
performed    it^    duty    and    then  '    un- 

lable   dd. iv   in  comph  ii  - 
Bonham  v.  Taylor,  1" 


§  3539.    RATES  OF  TOLL  ALLOWED.  —  Any  company  authorized  by  its  charter 
to  take  tolls  above  the  rates  hereinafter  provided  may  charge  and  receive  the  fol- 

[345] 


346  Private  Corporations  in  Ohio. 


Bridge  Companies,   §§  3540-3542. 


lowing  rates  of  tolls,  and  no  more:  For  each  foot  passenger  one  cent;  for  each  horse, 
mule,  or  ass,  one  year  old  and  upwards,  three  cents;  for  each  horse  and  rider  ten 
cents;  for  every  chase,  chariot,  gig,  or  other  two  or  four-wheeled  pleasure-carriage, 
drawn  by  one  horse,  fifteen  cents;  for  every  such  vehicle  drawn  by  two  horses  twenty  - 
five  cents,  and  if  drawn  by  four  horses  thirty  cents;  for  every  sled  or  sleigh  drawn 
by  one  horse  or  other  animal  ten  cents,  and  for  each  animal  in  addition  three  cents; 
for  every  wagon  drawn  by  one  horse  or  other  animal  ten  cents,  and  for  each  animal 
in  addition  three  cents;  fcr  every  wagon  drawn  by  two  horses  or  other  animals  fif- 
teen cents,  and  for  each  animal  in  addition  three  cents;  for  each  head  of  neat  cattle, 
six  months  old  or  upward,  one  cent;  and  for  each  head  of  sheep,  goats,  or  hogs,  one- 
half  cent;  but  this  section  shall  not  be  construed  to  affect  any  company  in  whose 
charter  special  rates  are  provided,  and  no  power  is  given  to  the  legislature  to  alter 
or  amend  the  same.     (April  15,  1857,  54  v.  177,  §  1;    S.  &  C.  352.) 

§  3540.  MAY  MAKE  AND  ENFORCE  REGULATIONS.  —  All  bridge  companies 
and  owners  are  invested  with  full  power  and  authority  to  make  and  enforce  any  rule 
or  regulation  deemed  necessary  or  requisite  to  preserve  and  protect  their  property  and 
collect  their  tolls,  and  may  prevent  any  person  from  crossing  any  bridge  owned  by 
them  on  foot,  or  by  riding,  or  driving  any  team  or  vehicle,  or  from  driving  any 
stock  thereon,  who  fails  to  pay  the  regular  fare  when  demanded;  and  the  police  or 
watchman  of  any  such  bridge  shall  have  all  the  power  and  authority  of  policemen 
of  cities,  and  may  arrest  any  person  who  violates  the  law,  or  the  rules  of  the  com- 
pany or  person  owning  the  bridge,  without  warrant,  at  or  upon  such  bridge,  and  take 
him  before  the  proper  civil  authority  to  be  dealt  with  according  to  law.  (April  12, 
1867,  64  v.  128,  §  5;    S.  &  S.  57.) 

§  3541.  POWERS  OF  OHIO  RIVER  BRIDGE  COMPANIES.  —  A  company  organ- 
ized to  construct  a  bridge  over  the  Ohio  river  may  construct  and  maintain  such 
bridge,  with  suitable  avenues  or  approaches  leading  thereto,  and  with  either  a  single 
span  or  a  draw,  as  the  company  may  determine;  but  in  either  case,  in  order  that  the 
bridge  may  not  obstruct  the  navigation  of  the  river,  the  same  shall  be  built  in  accord- 
ance with  the  provisions  of  an  act  of  congress  approved  July  14,  1862,  entitled  "  an 
act  to  establish  certain  post-roads,"  or  of  any  act  of  congress  subsequently  passed  on 
the  subject.     (April  3,  1868,  65  v.  55,  §  4;    S.  &  S.  203.) 


Paramount  power  in  congress. 

The  paramount  power  of  regulating  bridges 
that  affect  the  navigation  of  the  navigable 
waters  of  the  United  States  is  in  congress.  — 
Bridge  Co.  v.  United  States,  105  U.  S.  4,5 
(1881 ) . 

"Withdrawal     of     assent     equivalent     to 
prohibition. 

The  withdrawal  of  congress  of  its  assent  to 
the  maintenance  of  the  bridge,  when  properly 
made,  is  equivalent  to  a  positive  enactment. 
that  from  the  time  of  such  withdrawal  the 
further  maintenance  of  the  bridge  shall  be 
unlawful    notwithstanding    the    legislation    of 


the  several  states  upon  the  subject.  —  Bridge 
Co.  v.  U.  S.,  105  U.  S.  479  (1881). 

May  withdraw  assent  whenever  deemed 
necessary. 

Congress  could  withdraw  its  assent  when- 
ever it  determined  that  in  regard  to  the  con- 
struction  of  the  bridge,  other  requirements 
than  those  originally  prescribed  were  essential 
to  secure  due  protection  to  the  navigation  of 
the  river.  Congress,  by  requiring  change  and 
modification,  to  which  the  company  con- 
formed, incurred  no  liability  to  the  latter  on 
account  of  the  increased  cost.  —  Bridge  Co.  v. 
U.  S..  105  U.  S.  4S0,  484   (1881). 


§  3542.  FURTHER  POWERS  OF  OHIO  RIVER  BRIDGE  COMPANIES.  —  Such 
company  may  purchase,  or  appropriate  in  the  manner  provided  by  law,  and  hold  such 
real  estate  as,  in  the  opinion  of  its  directors,  will  be  required  for  the  site  of  the  bridge, 
and  of  suitable  avenues  or  approaches  leading  thereto,  and  may  locate  the  same  on, 
or  construct  the  same  over,  any  public  street,  road,  avenue,  or  alley;  provided,  that 
in  constructing  the  same  over  any  public  street,  road,  avenue  or  alley,  the  said  bridge 
shall  be  constructed  at  such  height  as  not  to  interfere  with  travel  passing  on,  over 
or  along  the  sama;  and  provided  further,  that  no  pier,  or  other  obstruction,  shall  be 
constructed  or  built  upon  such  street,  road,  avenue  or  alley,  without  the  consent  of  the 


Ohio    Riveb   I   i  347 

Bi  Ldge  Com]    ni< 


municipal  or  other  authorities  having  charge  or  contl 

pany  shall  be  responsible  for  injuries  done  to  private   property, 

such  bridge,   by  its  elevation   and  construction,   which    m 

action   brought  by   the   owner,   at   any   time   within    I 

thereof.     (February  8,  1889,  86  v.  25;    Rev.  Stat.  1880;    April  3,   16 

S.  &  S.  203.) 


May    hold   necessary   real   estate,   iu    fee 
or  otherwise. 

A    bridge    company    is    authorized    to    pur- 
chase,  appropriate  and    hold   any    interesi    in 

real    estate,    whether    in    fee    simple    or    ;i     less 


i   i. in.  which  in  the  opinion  ol 
will  he  requii ed  i"i   > 
of    suitable    approaches 

i .  Magi  ud<  i  1 1  al.,  »■">  \\ 
<  1900 


§  3543.     RATES  OF  TOLL  PRESCRIBED.  —  The  compni 
reasonable  rates  of  toll  for  all  persons,  animals,  vehicles,  and   property 
transported  over  the  bridge,  but  such  rates  shall  at  no  time  exceed  those  collect' 
the  Covington  and  Cincinnati  bridge;    and  the  company  shall  set  up  and  keep 
conspicuous  place,   at   each   end   of   the  bridge,   a  board   on   which  ■hall    h* 

written,  painted,  or  printed  in  a  plain  and  legible  manner.     (April  3,  1868,  65  v.  55, 
§  6;   S.  &  S.  203.) 

§  3544.    MAY  LAY  RAILWAY  TRACKS  ON  BRIDGE.  —  The  company  may  lay 
down  a  railway  track  or  tracks  upon  the  bridge  and  its  approaches,  and  may  con': 
at  any  agreed  sum  or  rate,  with  any  railroad  company  organized   in   this   state   in 
accordance  with  law,  or  any  railroad  company  organized  in  any  other  state  o; 
United  States,  for  the  use  of  the  bridge,  for  the  purposes  of  such  railroad  company; 
and  any  such  railroad  company  organized  in  this  state  may  enter  into  such  coir 
with  the  bridge  company;   but  the  bridge  company  shall  not  have  the  right  to  cl. 
or  collect  from  the  railroad  company  for  the  use  of  the  bridge  in  the  transportation 
over  the  same  of  cars,  railroad  passengers,  and  freights,  a  greater  toll  than  the  fol- 
lowing:    For  each  ton  (two  thousand  pounds)  of  freight  not  exceeding  fifteen  cents; 
for  each  passenger  not  exceeding  fifteen  cents;    for  each  passenger,  baggage,  mail,  or 
express  car  not  exceeding  one  dollar;    for  each  eight-wheeled  freight  car  fifty  cents; 
and  for  each  four-wheeled  freight  car  not  exceeding  twenty-five  cents.    (April  3,  1868, 
65  v.  55,  §  7;    S.  &  S.  203.) 

§  3545.    MORTGAGE  OF  FRANCHISES  AND  SALE  OF  OBLIGATIONS.  —  T 
company  may  include  all  its  rights,  income,  profits,  and  franchises  in  any  mortgage  ;• 
may  lawfully  make,  and  upon  a  foreclosure  of  a  mortgage  of  its  bridge,   land,  and 
franchises,  and  a  sale  thereof,   such  sale  shall  pass  to   the  purchaser   the  corp 
franchises  of  the  company  as  fully  as  the  company  had  them  at  the  time  the  mort- 
gage was  executed;    and  the  company  may  dispose  of  any  evidence  of  indebte 
it  may  lawfully  issue  as  is  provided  in  section  thirty-two  hundred  and  ninety.     (April 
3,  1868,  65  v.  55,  §  8;    S.  &  S.  204.) 

§  3546.     RAILROAD   COMPANIES   MAY   SUBSCRIBE   TO   STOCK.  —  Any  rail- 
road company  or  other  private  corporation  organized  under  a  law  of  this  state, 
become  a  subscriber  to  the  capital  stock  of  such  bridge  company,  to  an  amount  r 
exceeding  one-third  of  such  stock,  or  may  purchase,  or  take  by  way  of  pledge,  i 
the  bonds  or  other  evidences  of  indebtedness  issued  by  it.     (April  3.   1868.  65  v.  55. 
§  9;  S.  &  S.  204.) 

§  3547.    CONSOLIDATION  OF  COMPANIES.  —  Such  bridge  company  shall  have 
the  right  to  consolidate  its  capital  stock  with  the  capital  stock  of  any  bridge  c 
in  an  adjoining  state  authorized  to  construct  a  bridge  across  the  Ohio  rivei 
manner  prescribed  for  the  consolidation  of  railroad  companies,  and  the  two 
shall  thereupon  be  merged  into  one  corporation,  possessing  within  this  state  all  the 


348  Private  Corporations  in  Ohio. 

Bridge  Companies,  §§  3548-3549. 

rights,  privileges,  and  franchises,  and  subject  to  all  the  restrictions,  disabilities,  and 
duties  of  such  corporation  of  this  state  so  consolidated.  (April  3,  1868,  65  v.  55, 
§  10;    S.  &  S.  204.) 

§  3548.  MAY  CHANGE  SPAN  OR  HEIGHT  OE  BRIDGE.  —  Such  company  may 
fix  or  change  the  span  and  altitude  of  any  bridge  which  it  may  erect  and  construct, 
but  the  span  shall  not  be  less  than  three  hundred  fset  in  the  clear  over  the  main 
channel,  and  not  less  than  two  hundred  and  twenty  feet  in  the  clear  in  one  of  the  next 
adjoining  spans,  and  the  height  of  the  bridge  in  the  center  of  the  span  over  the  main 
channel  shall  not  be  less  than  one  hundred  feet  above  the  surface  of  the  water  at  low 
water-mark,  measuring  for  such  elevation  to  the  bottom  chord  of  the  bridge,  and 
such  height  above  extreme  high  water-mark  as  may  be  provided  in  any  act  of  congress 
now  in  force  or  hereafter  passed;  but  this  section  shall  not  apply  to  any  bridge  built 
with  a  draw  in  accordance  with  the  provisions  of  an  act  of  congress  approved  July 
14,  1862,  entitled  "  an  act  to  establish  certain  post  roads,"  or  any  act  of  congress 
subsequently,  passed  on  the  subject.     (April  3,  1868,  65  v.  55,  §  11;   S.  &  S.  204.) 

§  3548a.  MAY  BORROW  TO  CONSTRUCT  OR  MAINTAIN  AVENUES  OR 
APPROACHES.  —  Any  company  which  has  heretofore  constructed  any  bridge  across 
the  Ohio  river,  may  construct,  extend  and  maintain  avenues  or  approaches  thereto 
beyond  the  point  where  the  same  are  now,  or  are  by  law  authorized  to  be  constructed, 
and,  in  the  construction  and  maintenance  of  such  avenues  and  approaches,  may 
exercise  all  the  rights,  powers  and  privileges  now  conferred  on  bridge  companies  by 
the  laws  of  the  state  of  Ohio,  and  may  borrow  money  and  secure  the  payment  of  same 
as  is  provided  in  section  3256  of  the  Revised  Statutes.     (May  16,  1894,  91  v.  279.) 

§  3549.  MAY  OWN  AND  RUN  CERTAIN  PERRIES;  RATES  OF  FERRIAGE. 
—  Such  companies  may  purchase,  hold,  and  receive  grants  for,  and  run  ferries  within 
one-half  mile  of  such  bridges  across  said  river,  and  do  and  perform  all  the  necessary 
acts  in  relation  thereto,  but  the  rates  of  ferriage  shall  be  subject  to  the  control  of  the 
authorities  as  in  case  of  ferries  owned  and  run  by  individuals.  (May  7,  1869,  66  v. 
136,  §  2.) 


PART  XI. 

GAS  AND  WATKl;  COMPANIE 

§  3450.  Powers  of  gas  and  water  companies. 

§  3550a.  In  Cincinnati,  gas  company  has  po  lectric  tig  il 

§3551.  May  contract  with  public  authorities. 

§3552.  Gas  company  may  extend  pipes  beyond  city. 

§3553.  Standard  measure  for  gas. 

§3554.  Meter  must   be  sealed   and   stamped. 

§3555.  Gas  companies  to  furnish  certain  apparatus. 

§3556.  How  and  when  meters  in  use  to  1"-  tested. 

§  3557.  What  is  merchantable  j_ras. 

§3558.  Agents  of  company  may  enter  premise-,  to  inspect   meter. 

§3559.  When  company  may   shut   off  the  gas. 

§35(50.  Penalties  for  tampering  with  meters. 

§3561.  Each  company  to  provide  certain  apparatus. 

§  3561a.  Laws  made  applicable  to  natural-gas  companies  in  certain  cities. 


§  3550.  POWERS  OF  GAS  AND  WATER  COMPANIES.  —  A  company  organized 
for  the  purpose  of  supplying  gas  for  lighting  the  streets  and  public  and  private  build- 
ings of  a  city,  village,  town,  or  township,  may  manufacture,  sell,  and  furnish  the  gas 
required  therein  for  such  or  other  purposes,  and  a  company  organized  for  the  purpose 
of  supplying  the  inhabitants  of  a  city,  village,  town,  or  township  with  water  i 
sell  and  furnish  any  quantity  of  water  required  therein  for  such  or  other  purposes; 
and  such  companies  may  lay  conductors  for  conducting  gas  or  water  through  the 
streets,  lands,  alleys,  and  squares  in  such  city,  village,  town,  or  township,  with  the 
consent  of  the  municipal  authorities  of  the  city,  village,  or  town,  or  with  the  consent 
of  the  trustees  of  the  township,  and  under  such  reasonable  regulations  as  they  may 
prescribe.     (April  17,  1867,  64  v.  255,  §  53;    S.  &  S.  157.) 


May  borrow  money  and  give  mortgage. 
May  borrow  money  to  carry  out  the  objects 

of  its  creation,  and  may  secure  the  payment 
of  the  same,  by  note  and  mortgage. —  Hays  v. 
Galion  (las  Co.,  29  Oh.  St.  330  l  1876)  ;  Burt 
v.  Rattle,  31  Oh.  St.  116  (1876). 


Special  charter,   subject  to   control. 

A  corporation,  acting  under  special  charter, 
and  invested  with  franchises  to  be  exercised  to 
subserve  the  public  interest,  i>.  in  the  dis- 
charge of  such  duties,  suiiied  to  legislative 
supervision  and  control,  unless  it  clearly  ap- 
pears from  the  terms  of  its  charter  thai  it 
was  the  intention  to  exempt  it  from  such 
interference.  —  State  ex  rel.  v.  (bis  Ligl 
34  Oh.  St.  572  (1878);  approved  Zanesville  v. 
Gas  Lighl   Co.,  57  Oh.- St.  1    (1889  , 

Held,  that  a  company  holding  such  special 
charter  was  subject  to  the  provisions  of  the 
act  of  March  9,  1867  (S.  &  S.  60),  restricting 
the  price  to  be  charged  for  the  use  of  meters. 
—  State  ex  rel.  v.  Gas  Lighl  Co.,  .".I  Oh.  St. 
572    (1878). 

[340] 


No   exclusive   or   vested    right. 

This    seel  ion    doi  -    not    grant 
righl    to    any    one    company    ■ 
ductors    through    si 

Hamilton.   47    Oh.    St.   52,    70,    7  1 
l  .   S.   Sup.   Ct..     See 

I    W.  L.   B.  94;    146 


City  may  erect  own  plant. 

Upon  the  terminal  ion  oi 
a   gas  company  and  the  city  for  !  a 

same,   the   l:i t  tc  r    refused    I 
coin  raet,  bul   built    it 

I  hat    no    \ .  - 

violat  i.l.    v.    Il.ui.ii- 

St.    52,    72 

May   employ   electricity. 

( 'orporai  \,,n<    furnishing 
purpos  -  mend  theii 

tricity.  —  Pickard  v.  Hugh 

.".77    i  Is 


350 


Private  Corporations  in  Ohio. 


Contracts  with  Municipalities,  §§  3550a,  3551. 


Permit   of   council  —  when  necessary. 

The  right  to  operate  gas  works  is  a  fran- 
chise granted  hy  the  legislature.  Municipal 
authorities  cannot  arbitrarily  declare  it  a 
nuisance  or  prohibit  it  in  a  certain  district. 
Consent  to  use  streets  for  pipes  is  necessary. 
—  Defiance  v.  Defiance  Gas,  etc.,  Co.,  12  Dec. 

424   (1901). 
i 

Consent  to  use   streets   is  irrevocable. 

See  Defiance  v.  Defiance  Gas,  etc.,  Co.,  12 
Dec.   424    (1901). 

Lighting  companies  cannot  use  natural 

gas. 

Gas  companies  organized  under  the  statutes 
in  force  in  1874,  "  to  manufacture  and  furnish 
illuminating  gas,"  etc.,  are  not  authorized  to 
luse  natural  eras  to  furnish  light  and  heat. — ■ 
(Gas  Light  Co.  v.  Findlav,  2  C.  C.  237  (1887)  ; 
Is.  c,  1  C.  D.  4G3. 

(Lighting      companies      cannot      operate 
railway. 

Company  furnishing  light  and  heat  by 
means  of  gas  and  electricity  cannot  amend  its 
charter  so  as  to  operate  a  street  railway. — 
State  ex  rel.  v.  Taylor,  55  Oh.  St.  01    (1896). 

Council  cannot  grant  exclusive  right. 

)  The  city  council  cannot,  without  clear  legis- 
lative authority,  grant  to  any  one  an  ex- 
clusive  right  to  the  use  of  streets  and  alleys 
of  the  city. —  State  ex  rel.  v.  Cincinnati  Gas 
Co..   18  Oh.  St.  2G2    (1808);    approved.   115  U. 

IS.   (159,  118  U.   S.'  371;   Street  Railway  Co.  v. 

[Smith  et  al.,  29  Oh.  St.  291    (1876);   State  ex 

Irel.  v.  Hamilton,  47  Oh.  St.  52  (1890);  Gas 
Co.  v.  Newark,  7  N.  P.  76  (1896)  ;  s.  c.  8  Dec. 
418.  See  Hamilton  v.  Hamilton  Gas,  etc.,  Co., 
8  N.   P.  510    (1901). 


(1868)  ;  State  v.  Ironton  Gas  Co.,  37  Oh.  St. 
45  (1881)  ;  Cincinnati  Gas  Co.  v.  Avondale,  43 
Oh.  St.  257  (18S5);  Zanesville  v.  Gas  Light 
Co.,  47  Oh.  St.  1  (1889);  Toledo  v.  Gas  Co.,  6 
N.  P.  531  (1898);  s.  c,  8  Dec.  277;  Manhat- 
tan Trust  Co.  v.  Dayton  Gas  Co.,  55  Fed.  181 
(1893). 

For    construction    of    contract    stipulat- 
ing  for   **  average  price." 

Cincinnati  v.  Gas  Co.,  53  Oh.  St.  278  (1895). 

Council  may  require   report. 

Council  having  authority  to  regulate  price 
of  gas  may  require  gas  companies  to  file  an- 
nual report,  showing  cost  of  gas,  etc.  Such 
ordinance  must  be  of  civil  nature  only. — 
Cline  v.  Springfield,  7  N.  P.  626  (1899);  s.  c, 
10  Dec.  389. 

Injury  to  pipe  by  change  of  grade. 

A  gas  company  laying  its  pipes  in  the  street 
aloes  so  subject  to  the  right  of  the  city  to 
change  the  then  existing  grade;  and  in  the 
absence  of  negligence  the  city  is  not  liable  for 
damages  occasioned  by  the  necessity  of  taking 
up  and  relaying  of  the  pipes. —  Gas  Co.  v. 
Columbus,  50  Oh.  St.  66  (1893). 

Cannot  appropriate  property. 

A  water  company  has  no  right  to  appro- 
priate land  by  virtue  of  this  section  or  sections 
3551  and  3552.— State  v.  Salem  Water  Co., 
5  C.  ('.  58,  62  (1891)  ;  s.  c,  3  C.  D.  30. 

Laying  of  pipes  for  natural  gas  in  city 
streets    is  an  additional   servitude. 

Webb  et  al.  v.  Ohio  Gas  Co.,  16  W.  L.  B. 
121    (1886). 

Construction  of  §§  3550  and  3551. 

Brush  El.  Co.  v.  Jones  El.  Co.  and  Brush 
El.  Co.  v.  Queen  City  El.  Co.,  23  W.  L.  B.  329 
(1890)  and  5  0.  C.  C.  340,  affirmed  without 
report  29  W.  L.  B.  72  (1S93).  See  further  on' 
subject  of  regulation  of  gas  companies,  etc., 
§§  2478  to  2491   and  notes  thereto. 


City's  regulation  of  price. 

See  Cleveland  Gas  Co.  v.  Cleveland  (U.  S. 
Cir.  Ct.),  35  W.  L.  B.  155  (1891);  s.  c,  71 
Fed.    181;    State   v.    Gas   Co.,    18   Oh.    St.   262 

§  3550a.  IN  CINCINNATI,  GAS  COMPANY  HAS  POWERS  OP  ELECTRIC 
LIGHT  COMPANY.—  In  cities  of  the  first  grade  of  the  first  class  gas  companies  and 
gas  light  and  coke  companies  organized  under  the  laws  of  this  state  for  the  purpose 
of  manufacturing  and  supplying  gas  for  lighting  the  streets  and  public  and  private 
buildings  and  places,  shall  have,  in  addition  to  the  powers  already  conferred,  all  the 
powers,  privileges  and  franchises  of  electric  light  companies  to  construct,  maintain 
and  operate  electric  light  plants  and  stations,  with  all  fixtures  and  appliances  neces- 
sary for  furnishing  electric  light,  heat  and  power  to  such  cities  and  the  inhabitants 
thereof;  and  such  companies  may  lease  or  purchase,  maintain  and  operate  existing 
electric  light  plants  and  stations,  together  with  all  the  fixtures,  appliances,  equip- 
ments and  other  property  thereunto  belonging,  including  the  capital  stock,  rights 
and  franchises  of  any  existing  company  or  companies,  person  or  persons,  owning  the 
same.     (April  25,   1893,  90  v.   291.) 

§  3551.  MAY  CONTRACT  WITH  PUBLIC  AUTHORITIES.— The  municipal 
authority  of  any  city  or  village,  or  the  trustees  of  any  township,  in  which  any  gas  or 
water  company  is  organized,  may  contract  with  any  such  company  for  lighting  or 


Gas  and  \\  .vi  i.k  <  i m  p 


351 


Regulations  as  to  Pipes,  Meters,  etc., 


supplying  with  water  the  streets,  lands,  lanes,  squares,  and  public  pi 

village,  town,  or  township;  but  no  such  company  shall  go  Into  operation  in  any 

or  village  where  such  a  corporation  has  been  already  formed, 

until    after  the   question   of  authorizing   such   operation    has    been 

qualified   voters   of   such   city   or  village,    and    authorized    by    ordii.  \  •  •  . .     is. 

1874,  71  v.  93,  §  54;  S.  &  S.  158;  S.  &  C.  300.) 


Cited.  State  v.  Salem  Water  Co.,  5  C.  C.  58, 
03  (1891);  s.  c,  3  C  1).  30;  State  v.  Bamilton, 
47  Oh.  St.  52,  69   I  L890). 

Construction  of  §§   3550  and  3551. 

Brush  El.  Co.  v.  Jones  El.  Co.  and  Brush  El. 
Co.  v.  Queen  City  El.  Co.,  2:5  W.  L.  B.  329 
(1890)  and  5  O.  C.  C.  340,  affirmed  without 
report  29  W.  L.  B.  72  (1893). 

May  be  compelled  to  furnish  gas. 

Where  it  is  the  duty  of  a  gas  company  to 
furnish  pas  to  a  city  at  the  rates  fixed  by  an 
ordinance  of  the  city  council,  it  may.  it  it  re- 
fuse, be  compelled  by  a  mandatory  injunction 


bo  to  do,  bo  long  ae  it   contii 

and  enjoy  it-   francl 

Gas    Lighl    Co.    v.    Zanesville,    17  (J 

Submission    to    vote,    necessary    fo>    for- 
mation  only. 

A    gas  lighl    company    (in    o]  duly 

lized  and   authorized   by  I 

city   to  ereel    gas   w  i 

contracts   with   the  city  to  furnish 

out  and  her  vote  of  I  he  p 

applies  only  to  the  format  ion  i 

pany.     Gas   I  o.   v.   Lima,    I  I     i 

9.  .-..  2  C.    D.   :■ 


§  3552.  GAS  COMPANY  MAY  EXTEND  PIPES  BEYOND  CITY  —  A  gas  com- 
pany in  any  city  or  village  may  extend  its  pipes  used  for  conveying  gas  to  the  various 
localities  and  inhabitants  of  such  city  or  village,  to  any  point  or  place  in  the  vicinity 
of  such  city  or  village  outside  the  corporate  limits  thereof;  but  the  right  of 
must  be  obtained  from  the  corporate  or  other  authorities,  or  person  having  control  of 
the  places  to  be  affected  by  such  extension.  (March  30,  1859,  56  v.  92.  j  1 ;  S.  &  C. 
351.) 


Extension     equivalent     to      location     of 
plant. 

Where  a  gas  company,  under  the  provisions 
of  this  section,  extends  into  a  village  it-  pipes 
used  for  conveying  gas,  and  is  voted  with  the 
right  of  way  where  such  pipes  arc  laid,  and 
uses  such  pipes  to  convey  to  the  village  lamps, 
gas  manufactured  outside  of  such  village,  and 
uses    such    manufactory    and     pipes    as     one 


plant,  such  company  maj 
tablishi  d   in  such  village,  within  t  •  • 
of  section  2478";    and    such   extension   ol 
may    be    regarded    as    t  he    extensi   • 

plying    the    vil 
within  the 
ii.ii  i    Gas    I  o.    v.    Avond 


§  3553.  STANDARD  MEASURE  EOR  GAS.—  The  standard  or  unit  of  measure 
for  the  sale  of  illuminating  gas  by  meter  shall  be  the  cubic  foot,  containing  sixty-two 
and  three  hundred  twenty-one  ons-thousandth  pounds  avoirdupois  weight  of  distilled 
or  rain  water,  weighed  in  air.  of  the  temperature  of  sixty-two  degrees  Fahrenheit 
scale,  the  barometer  being  at  twenty-nine  and  one-half  inches.  (April  6.  1866.  63 
v.   164,  §  5;  S.  &  S.  159.) 

§  3554.     METER  MUST  BE  SEALED  AND  STAMPED.—  No  meter  shall  be  set 
unless  it  is  tested  by  a  meter-prover,  sealed  and  stamped  as  provided  in  b 
five  hundred  and  fifty-six,  and  any  company  authorizing  the  setting  of  a  meter,  o 
allowing  the  same  to  be  used  by  any  consumer  of  gas,  without  being  so  seale 
stamped,  shall  forfeit  and  pay  not  less  than  twenty-five  nor  more  than  one  hundred 
dollars,  to  be  recovered  upon  the  complaint  of  any  such  consumer,  in  the  name  of 
state,   before  any  court   of  competent  jurisdiction.     (March  9.    1867.    64   v.    39.    5 
B.  &  S.  161.) 

§  3555.     GAS    COMPANIES    TO    FURNISH    CERTAIN    APPARATUS.— There 
shall  be  provided,  at  the  expense  of  the  gas  companies  of  this  state,  by  the  sta 
of  weights  and  measures,  at  the  Ohio   state  university,   a  standard  measure  of   the 


352  Private  Corporations  in  Ohio. 

Meters,  Inspection  of  Gas,  etc.,  §§  S556-3560. 

cubic  foot,  and  such  other  apparatus  as  in  his  judgment  shall  be  necessary  for  the 
performance  of  his  duties  under  this  chapter.  (March  17,  1891,  88  v.  123;  April  6, 
1866,  63  v.   164,  §  7;  S.  &  S.   159.) 

§  3556.  HOW  AND  WHEN  METERS  IN  USE  TO  BE  TESTED.—  Meters  in  use 
shall  be  tested  on  the  request  of  tho  consumer,  in  his  presence,  if  desired,  with  a 
meter-prover  tested  and  sealed  as  provided  in  section  thirty-five  hundred  and  sixty- 
one,  by  an  officer  or  servant  of  the  company;  if  the  meter  be  found  to  be  correct,  the 
party  requesting  the  inspection  shall  pay  a  fee  of  twenty-five  cents,  and  the  expense 
of  removing  the  same  for  the  purpose  of  being  tested,  and  the  re-inspection  shall  be 
stamped  on  the  meter;  if  proved  incorrect,  no  fees  or  expense  shall  be  paid  by  the 
consumer,  and  the  company  shall  furnish  a  new  meter  without  any  charge  to  the  con- 
sumer; and  no  gas  company  shall  have  the  right  to  charge  rent  for  meters.  (March 
9,  1867,  64  v.  39,  §  9;  S.  &  S.   161.) 

§  3557.  WHAT  IS  MERCHANTABLE  GAS.— Illuminating  gas  shall  not  be 
merchantable  in  this  state  which  has  a  minimum  value  of  less  than  twelve  candles  — 
that  is,  a  burner  consuming  five  cubic  feet  per  hour  shall  give  a  light,  as  measured 
by  the  photometric  apparatus  in  ordinary  use,  of  not  less  than  twelve  standard  sperm 
candles,  each  ccnsuming  one  hundred  and  twenty  grains  per  hour;  and  every  gas- 
meter  must  be  tested  with  the  burner,  and  under  the  pressure  best  adapted  to  it,  and 
the  result  shall  be  calculated  at  a  temperature  of  sixty  degrees  Fahrenheit.  (March 
9,  1867,  64  v.  39,  §   10;  S.  &  S.  162.) 

§  3558.  AGENTS  OF  COMPANY  MAY  ENTER  PREMISES  TO  INSPECT 
METER. —  An  officer  or  servant  of  a  gas  company,  duly  authorized  in  writing  by  the 
president,  treasurer,  agent,  or  secretary  of  the  company,  may,  at  any  reasonable  time, 
enter  any  premises  lighted  with  gas  supplied  by  such  company,  for  the  purpose  of 
examining  or  removing  the  meters,  and  of  ascertaining  the  quantity  of  gas  consumed 
or  supplied;  and  if  any  person,  at  any  time,  directly  or  indirectly,  prevent  or  hinder 
any  such  officer  or  servant  from  so  entering  any  such  premises,  or  from  making  such 
examination  or  removal,  such  officer  or  servant  may  make«  complaint  under  oath,  to 
any  justice  of  the  peace  of  the  county  wherein  such  premises  are  situate,  stating  the 
facts  in  the  case,  so  far  as  he  has  knowledge  thereof,  and  the  justice  may  thereupon 
issue  a  warrant,  directed  to  any  constable  of  the  city  or  town  where  such  company 
is  located,  commanding  him  to  take  sufficient  aid,  and  repair  to  such  premises,  accom- 
panied by  such  officer  or  servant,  who  shall  examine  such  meters  and  ascertain 
the  quantity  of  gas  consumed  or  supplied  therein,  and,  if  required,  remove  any  meters 
belonging  to  the  company.     (April  6,  1866,  63  v.  164,  §  11;  S.  &  S.  159.) 

§  3559.  WHEN  COMPANY  MAY  SHUT  OFF  THE  GAS.—  If  any  person  so  sup- 
plied with  gas  neglect  or  refuse  to  pay  the  amount  due  for  the  same,  or  for  the  rent 
cf  the  meter,  or  other  articles  hired  by  him  of  the  company,  the  company  may  stop 
the  gas  from  entering  the  premises  of  such  person;  in  such  cases  the  officers,  servants, 
or  workmen  of  the  gas  company  may,  after  twenty-four  hours'  notice,  enter  the  prem- 
ises of  such  parties,  between  the  hours  of  eight  in  the  forenoon  and  four  in  the  after- 
noon, and  take  away  such  meter,  or  other  property  of  the  company,  and  may  discon- 
nect any  meter  from  the  mains  or  pipes  of  the  company;  and  no  gas  company  shall 
have  the  right  to  refuse  to  furnish  gas  on  account  of  any  arrearages  due  the  company 
for  gas  furnished  to  former  occupants  of  the  same  premises.  (April  6,  1866,  63  v. 
164,   §   12;  S.  &  S.   160.) 

§  3560.  PENALTIES  FOR  TAMPERING  WITH  METERS.—  Every  person  who 
willfully  or  fraudulently  injures,  or  suffers  to  be  injured,  any  meter  belonging  to  any 
gas  company,  or  prevents  any  meter  from  duly  registering  the  quantity  of  gas  sup- 


Gas  and  \V  a  i  eh  <  i  353 


Testing  Apparatus— Natural  Gas  Oompan 


plied  through  the  same,  or  in  any  way  hinders  or  interferes  v.  I 

just  registration,  or  attaches  any  pipe  to  any  main  or  pipe  l» 

or  otherwise  burns  or  uses  or  causes  to  be  used,  nny 

without  the  written  consent  of  an  officer  thereof,  unless  - 

meter  set  by  the  company,  or  fraudulently  bums  the  gas  of  the 

the  same,  shall  for  every  such  offense,  forfeit  and  pay  to  the  company  D 

one  hundred  dollars,  to  be  recovered  in  an  action  brought  by 

such  offender,  and  in  addition  thereto,  shall  pay  the  company  the  . 

by  it  sustained  by  reason  of  such  injury,  prevention,  waste,  con 

(April  6,  1866,  63  v.   164,  §§   13,   14;  S.  &  S.   160.) 

§    3561.     EACH    COMPANY    TO    PROVIDE    CERTAIN   APPARATUS  — Ai 

companies  supplying  the  public  with  illuminating  gas  which  are  not  supplied  with 
such  apparatus,  shall  forthwith  provide  for  their  use  a  meter-prover,  the  holder  of 
which  shall  contain  not  less  than  five  feet,  the  same  to  be  tested,  stamped,  and  a> 
by  the  state  sealer  of  weights  and  measures,  at  the  Ohio  state  university,  before  being 
used,  and  a  photometer  for  the  comparison  of  the  lights  of  gases  and  candles  by 
means  of  a  disk.  (March  17,  1891,  88  v.  123;  April  12,  1876,  73  v.  227.  |  8;  S  dc 
S.   159.) 

§   3561a.     LAWS    MADE   APPLICABLE   TO   NATURAL   GAS    COMPANIES   IN 
CERTAIN   CITIES. —  The   provisions   of   this   chapter,    so    far   as    the    same   may   be 
applicable,  shall  apply  also  to  any  company  organized  for  the  purpose  of  suppl  . 
the  public   and  private  buildings   and  manufacturing  establishments  of  all  cities  of 
the  third  grade  of  the  second  class,  having  a  population  not  exceeding  16,000  at  |  I 
federal  census  of  A.  D.    1880,  with  natural  gas  for  fuel;  but  said  company  shall  be 
liable  for  any  damage  that  may  result  from  the  transportation  of  the  same,  provided 
the  township  trustees  shall  not  assent  to  the  laying  down  of  any  line  of  pipes  in  any 
township  of  this  state,  as  provided  in  sections  three  thousand  five  hundred  and  fifty 
and  three  thousand  five  hundred  and  fifty-one,  until  the  company  or  corporation  | 
posing  to  lay  the  same  shall  obtain  the  assent,  in  writing  of  a  majority  of  the  1 
owners  whose  lands  may  be  adjacent  to  the  road  or  highway  upon  which  said  line  of 
'pipes  or  conductors  are  to  be  laid.     (May  1,  1885.  82  v.  213.) 

Company  liable,  without  negligence.  in  regard  th< 

This  section  imposes  a  duty  on  the  company 
of  keeping  natural  gas  under  its  control,  while 
transporting  the  same,  and  the  company  is 
liable  for  any  damages  that  may  result  from 
such    transportation,    although    not    negligent 

LAW    GOV.    PRIV.    COR. —  23. 


50  Oh.  Si.  695 

Laying  of  pipes  for  natural  pas   in   1  itv 
streets     is  an   additional   srrvit  u;lr. 
Webb  el    al.   v.  Ohio  Gas  Co.,   18  W.   1..   B. 

L21    (18J 


PART  XII. 

HYDRAULIC  CORPORATIONS. 

§  3562.  May  enter  upon  land  for  survey. 

§  3563.  When  and  for  what  purpose  may  appropriate  land. 

§  3564.  Certain  companies  released  from  cause  of  forfeiture. 

§  3565.  May  borrow  money  and  make  mortgage. 

§  3566.  Companies  may  consolidate. 

§  3567.  Notice  of  meeting  for  such  purpose. 

§  356S.  Proceedings  at  the  meeting. 

§  3569.  When  water  may  be  drawn  from  canals. 

§  3570.  Certain  provisions  of  chapter  five   applicable. 

§  3562.  MAY  ENTER  UPON  LAND  EOR  SURVEY.  —  A  company  incorporated 
under  the  laws  of  this  state  for  hydraulic  or  manufacturing  purposes,  to  which  the 
board  of  public  works,  for  a  stipulated  revenue,  has  leased  and  granted,  or  may  here- 
after lease  and  grant,  the  right  to  use  and  employ  the  surplus  water  of  any  of  the 
public  canals  of  this  state,  for  propelling  the  machinery  of  such  company,  may  enter 
upon  any  land  upon  or  across  which  it  may  be  desired  to  build,  excavate,  or  construct 
its  hydraulic  canal,  race-ways,  or  water-channel,  for  conveying  and  discharging  such 
surplus  water  to  and  from  the  point  at  which  it  is  desired  to  employ  the  same,  and 
survey  the  route  thereof.     (April  5,  1866,  63  v.  147,  §  1;    S.  &  S.  172.) 

§  3563.  WHEN  AND  EOR  WHAT  PURPOSE  MAY  APPROPRIATE  LAND.  — 
Such  company  may  appropriate  so  much  of  the  land  as  it  may  deem  necessary  for  its 
canal,  race-way,  or  water-channel,  with  the  necessary  culverts,  waste-weirs,  aque- 
ducts, water-gates,  abutments,  and  fixtures,  and  the  right  of  way  over  adjacent  lands 
sufficient  to  enable  it  to  construct  and  repair  the  same,  if  the  probate  court,  in  the 
proceedings  instituted  for  that  purpose,  find  that  the  erection  and  operation  of  its 
proposed  works  will  be  subservient  to  the  public  welfare.  (April  5,  1866,  63  v.  147, 
§§  2,  3,  4;    S.  &  S.  172,  173.) 

§  3564.  CERTAIN  COMPANIES  RELEASED  EROM  CAUSE  OF  FOREEITURE. 
—  All  hydraulic  companies  incorporated  and  organized  before  March  23,  1866,  which 
became  liable  to  a  judgment  of  ouster  from  their  corporate  franchises,  by  reason  of 
a  non-user  thereof  for  five  or  more  years,  but  against  which  no  proceeding  to  obtain 
such  judgment  had  been  commenced,  and  which  had  resumed  and  were  then  in  the 
bona  fide  exercise  of  their  franchises,  are  relieved  from  such  cause  of  forfeiture,  and 
no  judgment  for  that  cause  shall  be  rendered  against  them,  or  either  of  them.  (March 
23,  1866,  63  v.  50,  §  1;    S.  &  S.  173.) 

§  3565.  MAY  BORROW  MONEY  AND  MAKE  MORTGAGE.  —  Any  hydraulic 
company  may,  for  the  purpose  of  repairing,  completing,  or  extending  its  works,  bor- 
row money  to  an  amount  not  exceeding  one-half  of  its  capital  stock  actually  paid  in, 
and  may  secure  the  payment  of  the  money  so  borrowed  by  the  issue  of  bonds  or  notes, 
bearing  interest  not  to  exceed  the  rate  authorized  by  law,  and  secured  by  mortgage 
on  its  real  estate,  or  any  part  thereof;  but  such  bonds  or  notes  shall  not  be  issued 
without  the  assent  in  writing  of  the  holders  of  a  majority  of  the  stock  in  the  company. 
(April  25,  1873,  70  v.  160,  §  1.) 

1354] 


olidai  [i  355 


Hydraulic  Companies,  S§  :i5WJ 


§  3566.     COMPANIES  MAY  CONSOLIDATE.  -  Any   hydrattli 
hereafter  organized  under  the   laws   of   this   state,    may   consolidate 
hydraulic  company  in  this  or  any  adjoining  state,  when  H 
are  connected  or  proposed  to  be  connected,  which  con 
ment  of  the  corporations,  duly  ratified  by  a  vote  of  the  hold< 
stock  of  each  of  the  companies;    when  so  consolidated  the  com] 
one  company,  and  take  such  name  as  the  agreement  shall  d< 
ized  under  the  laws  of  this  state,   the  consolidated   company   shall    posaei 
rights,   privileges,  and  franchises  of  each  of  the  corporations   part 
ment,  and  if  one  is  organized  under  the  laws  of  any  other  state, 
pany  shall  possess  all  the  rights,  privileges,  and  franchises  of  I 
under  the  laws  of  this  state,  and  in  either  case  the  consolidated  company  she 
and  hold  all  the  property  and  rights  of  action,  subject  to  all  liens  upon  I 
property  of  each  cf  the  companies;    and  all  debts,  liabilities,  and  duties  of   • 
the  companies  shall   henceforth  attach  to   the  new  company,   and   may   be   enforced 
against  it.     (April  27,  1872,  69  v.  177,  §  1.) 

§  3567.    NOTICE  OF  MEETING  FOR  SUCH  PURPOSE.  —  The  notice  of  a  meet- 
ing to  take  into  consideration  the   agreement  to   consolidate,   shall   be   given   V 
stockholders   of  such  companies,  by  the  secretaries  of  the   respective  companies 
publication  in  a  newspaper  printed  and  published  in  the  county  where  such  corpora- 
tion is  located,  thirty  days  previous  to  such  meeting,  stating  the  object  of  the  D 
ing;    a  printed  copy  of  such  notice  shall  be  sent  by  the  secretary  of  each  company 
mail,  to  any  stockholder  whose  residence  is  out  of  the  county;   and  the  publication  and 
sending  of  such  notice  must  be  certified  by  the  secretaries  on  their  respective  record 
books.     (April  27,  1872,  69  v.  177,  §  2.) 

§  3568.  PROCEEDINGS  AT  THE  MEETING.  —  The  stockholders  at  the  meeting 
so  called  shall  take  into  consideration  the  agreement  to  consolidate,  and,  after  the 
adoption  of  the  same,  shall  appoint  the  time  and  place  for  the  election  of  directors 
and  other  officers  of  the  new  corporation  provided  for  in  the  agreement,  a  certified 
copy  of  which,  and  of  the  proceedings  and  vote  on  the  consolidation,  shall  be  certified 
by  the  officers  of  such  meeting,  under  their  seals,  and  be  acknowledged  by  them  before 
an  officer  authorized  by  law  to  take  acknowledgment  of  deeds,  and  shall  be  forth  - 
filed  in  the  office  of  the  secretary  of  state;  and  a  copy  of  the  agreement  and  act  of 
consolidation  so  filed  in  the  office  of  the  secretary  of  state,  duly  certified  by  him.  shall 
be  evidence  of  the  existence  of  such  consolidated  company.  (April  27,  1872,  69 
v.  177,  §  3.) 

§   3569.     WHEN  WATER  MAY  BE  DRAWN  FROM  CANALS.— All  canal  com- 
panies and  persons  having  oversight  of  any  canal  are  prohibited  from  hereafter  di 
ing  off  the  water  from  such  canal  for  the  purpose  of  cleaning  out  the  same,  or  mak 
the  general  annual  repairs  thereof,  and  from  allowing  the  water  to  remain  out  of  the 
same,  at  any  time  between  the  thirtieth  day  of  June  and  the  thirtieth   day  of  Sep- 
tember in  any  year;  and  if  any  such  company  or  person  violate  the  provisions  o: 
section,  such  company  or  person  shall  forfeit  and  pay  to  the  state  not  less  than  five 
hundred  nor  more  than  three  thousand  dollars,  to  be  recovered  in  a  civil  action,  before 
any  court  having  jurisdiction  thereof.     (January  31.  1845.  43  v.  17.  g  1;  S.  &  C 

§    3570.     CERTAIN    PROVISIONS    OF    CHAPTER    FIVE    APPLICABLE  — 
provisions  of  chapter  five  for  the  foreclosure  of  a  mortgage  of  a  turnpike  or  plank- 
road,  and  the  sale  thereof  upon  deli  mortgage  or  upon  execution,  shall  apply  to  the 
foreclosure  of  a  mortgage  of  the  canal  of  any  company,  and  to  the  sale  thereof  on  such 
proceedings  or  on  execution.     (Apri1   16.  1857,  54  v.   179.   §f    1.  ;?:  S.  &  C.  339.) 


PART  XIII. 

CEMETERY  ASSOCIATIONS. 

§  3571.  May  acquire  land  not  exceeding  one  hundred  acres. 

§  3572.  Certain  associations  may  acquire  additional  land. 

§3573.  Appropriation  of  land  by  cemetery  associations;   exceptions. 

§  3574.  How  receipts  and  income  to  be  applied. 

§3574-1.  Additional  land  for  entrance;  how  secured. 

§  3575.  Sale  of  lots. 

§  3576.  Plat  of  grounds ;   regulations. 

§  3577.  County  commissioners  may  purchase  road  to  cemetery. 

§  3578.  Exemptions  of  burial  grounds. 

§  3579.  May  act  as  soldiers'  monumental  association. 

§  3580.  Officers  of  cemetery  association  may  appoint   policemen. 

§  35S1.  Powers  of  association  in  certain  counties. 

§  35Sla.  Acquisition  of  sale  of  one  and  in  county  containing  city  of  the  second  class;   ex- 
emptions; taxation. 

§  3582.  How  receipts  and  income  to  be  applied. 

§  3583.  May  except  and  execute  certain  trusts. 

§  3584.  When  such  corporation  may  hold  land  in  village. 

§  35S5.  Powers  of  certain  corporations. 
§  3586.         Rights  of  lot  owners  assured. 

§  3586a.'  Rights  and  powers  of  cemetery  associations. 

§  3586-1.  Authorizing  sale  of  certain  cemeteries;  application  of  proceeds. 

§3586-2.  Notice  of  application:  order  of  sale. 

§  3586-3.  Cemetery  associations  may  create  sinking  fund. 

§  3586-4.  How  such  funds  may  be  invested. 

§  3586-5.  How   expended. 


§  3571.  MAY  ACQUIRE  LAND  NOT  EXCEEDING  ONE  HUNDRED  ACRES.  — 
A  company  or  association  incorporated  for  cemetery  purposes  may  purchase,  appro- 
priate, or  take  by  gift  or  devise,  and  hold,  not  exceeding  one  hundred  acres  of  land, 
which  shall  be  exempt  from  execution,  from  taxation,  and  from  being  appropriated 
to  any  other  public  purpose,  if  used  exclusively  for  burial  purposes,  and  in  no  wise 
with  a  view  to  profit.     (March  29,  1875,  72  v.  113,  §  5.) 


Does  not  exempt  froin  assessments. 

The  exemption  from  taxation  does  not  in- 
clude exemption  from  assessment  for  local  im- 
provements. —  Lima  v.  Cemetery  Ass'n,  42  Oh. 

St.   128    (1SS4). 


Assessment  can  be   enforced. 

While  the  lands,  so  far  as  exempted,  cannot 
be  sold,  an  assessment  may  be  enforced  by 
such  remedies  as  the  statutes  and  courts  of 
equity  afford.  —  Lima  v.  Cemetery  Ass'n.  42 
Oh.  St.  128  (1884)  ;  Gilmour  v.  Pelton,  2  W.  L. 
B.  158  (1877). 


§  3572.  CERTAIN  ASSOCIATIONS  MAY  ACQUIRE  ADDITIONAL  LAND.  — 
(Vny  such  company  or  association  which  is  limited  to  the  ownership,  by  appropriation 
or  otherwise,  of  a  designated  number  of  acres  of  land  for  such  purpose,  may  purchase, 
according  to  law,  additional  lands  to  the  extent  necessary  for  such  purposes;  but  not 
more  than  fifty  acres  shall  be  purchased  in  any  year,  and  not  more  in  the  aggregate 
shall  be  so  purchased  and  held  by  any  such  company  ur  association  than  one  hundred 
acres.     (March  20,  1877,  74  v.  60,  §  1.) 

[356] 


Appropri  \i  [on  o]    '  357 


Cemetery  Associations, 


§  3573.     APPROPRIATION   OF   LAND   BY  CE.M 

f  CEPTIONS.  —  If  it  be  necessary  to  acquire  any  lands  by  appn 
ings  shall  be  taken  therefor  as  are  provided  for  the  appn 
use  of  corporations;    but  no  lands  shall  be  so  ap] 

I  satisfied  that  suitable  premises  can  not  be  obtain. 
and  no  lands  shall  be  appropriated  upon  which   then 
stable  or  other  farm-buildings,  or  upon  which  there  is  any 

;  valuable  mineral  or  other  medicinal  spring,  or  any  well  actually  ;, 
water,  unless  the  same  shall  adjoin  a  cemetery  already  lor    ■ 
or  opposite  side  of  a  public  highway;    nor  shr.ll  any  land   b( 
cemetery  located,  whether  it  is  being  established  by  an  asso< 
cemetery  purposes  or  by  benevolent  or  religious  societies,  within  I 
of  any  dwelling  house,  unless  the  owner  of  such  dwelling  h0U8(    lives  his  c 
unless  the  entire  tract  be  so  appropriated  as  a  necessary  addition  to  or  enlargement  of 
a  cemetery  already  located  and  used;    provided,  however,  that  the  limit  shall  i. 
less  than  one  hundred  yards  where  it  is  sought  to  appropriate  for  cemetery  pu:; 
property  adjoining  a  cemetery  already  located  and  used,  when  such  dwelling   b 
has  been  erected  subsequently  to  the  laying  out  and  establishing  of  such  cemi 
but  in  cities  of  the  third  and  fourth  grade  of  the  second  class,  where  the  cemetery 
within  a  municipal  corporation,  the  association  may,  without  such   consent,   appro- 
priate property  within  one  hundred  feet,  or  the  width  of  a  street,  of  any  dw» 
house.     The  provisions  of  this  section  shall     not   be   applicable   to   a  corporation   or 
cemetery  association,  owning  a  cemetery  of  less  dimensions  than  five  acres  and  si- 
within  one  mile  of  the  corporate  limits  of  any  city  of  the  first  grade  of  the  first  clasr. 
(March  22,  1893,  90  v.  103;   April  2,  1886,  83  v.  63;    May  1,  1885.  82  v.  217;    H 
6,  1880,  77  v.  41;    Rev.  Stat.  1880;    March  29,  1875,  72  v.  113,  ^  5;    76  v.   : 

§  3574.  HOW  RECEIPTS  AND  INCOME  TO  BE  APPLIED.  —  After  paying  for 
such  land  all  future  receipts  and  incomes  of  such  company  or  association,  whether 
from  sale  of  lots,  donations,  or  otherwise,  shall  be  applied  exclusively  to  laying  out, 
preserving,  protecting,  and  embellishing  the  cemetery,  and  the  avenues  le 
thereto,  the  erection  of  such  buildings  as  may  be  necessary  for  the  cemetery  purposes, 
and  to  paying  the  necessary  expenses  of  the  cemetery  company  or  association;  no 
debts  shall  be  contracted  in  anticipation  of  future  receipts,  except  for  original  pur- 
chasing, laying  out,  inclosing,  and  embellishing  the  ground  and  avenues,  for  « 
a  debt  or  debts  may  be  contracted  not  exceeding  ten  thousand  dollars  in  the  whole,  to 
be  paid  out  of  future  receipts;  and  such  company  or  association  may  adopt  such  rules 
and  regulations  as  it  may  deem  expedient  for  disposing  of  and  conveying  burial  lots; 
.  but  any  person  not  already  the  owner  of  a  lot  in  the  cemetery  shall  have  the  right  to 
purchase  any  lot  not  before  sold  by  the  company  or  association,  and  have  it  conveyed 
to  him  by  the  company  or  association,  upon  tender  of  the  usual  price  asked  therefor 
by  it.     (March  29,  1875,  72  v.  113,  §  5.) 

§  3574-1.    ADDITIONAL  LAND  FOR  ENTRANCE:    HOW  SECURED.  —  When- 
ever in  the  judgment  of  the  officers  of  any  cemetery  association  within  this  st    • 
is  necessary  to  secure  additional  land  for  the  purpose  of  making  an  entrance  to  ii 
grounds,  or  to  improve  an  entrance  already  made,  said  officers  may  make  application 
to  the. county  commissioners  of  the  county  in  which  said  cemetery  is  located  for  the 
appointment  of  appraisers;    the  county  commissioners  shall,   upon  such   applical 
being  made  to  them,  appoint  three  disinterested  free-holders  of  the  county  as  apprais- 
ers, whose  duty  it  shall  be  to  view  the  land  sought  to  be  obtained,  and  appraise  its 
value,  and  make  due  return  of  said  appraisement  to  the  county  commissioners:    and 
when   said   cemetery   association   shall   have   made   payment   of   the   amount    oi 
appraisement,  together  with  the  cost  thereof,  then  the  title  to  said  land  shall  vest  in 
said   association;     an   appeal   m?y   be   taken   from    the   appraisement    made   by   such 


358  Private  Corporations  in  Ohio. 


Cemetery  Associations,   S§  3575-3580. 


appraisers  to  the  probate  court  of  the  county  in  which  such  cemetery  or  such  entrance 
may  be  located  in  manner  provided  in  chapter  4,  title  6,  of  the  Revised  Statutes. 
(April  6,   1893,  90  v.   153.) 

§  3575.  SALE  OF  LOTS. —  Burial-lots  sold  by  such  company  or  association  shall 
be  for  the  sole  purpose  of  interments,  shall  be  subject  to  the  rules  prescribed  by  the 
company  or  association,  and  shall  be  exempt  from  taxation,  execution,  attachment,  or 
any  other  claim,  lien,  or  process  whatever,  if  used  exclusively  for  burial  purposes,  and 
in  no  wise  with  a  view  to  profit.     (February  24,  1848,  46  v.  97,  §  6;  S,  &  C.  C27.) 

§  3576.  PLAT  OF  GROUNDS;  REGULATIONS. —  Every  such  company  or  asso- 
ciation shall  cause  a  plat  of  its  grounds  and  of  the  lots  by  it  laid  out,  to  bs  made  and 
recorded,  or  filed  in  the  recorder's  office  of  the  county  in  v/hich  situated;  the  lots  to  bs 
numbered  by  regular  consecutive  numbers;  it  may  inclose,  improve  and  adorn  the 
grounds  and  avenues,  erect  buildings  for  its  use,  prescribe  rules  for  inclosing  and 
adorning  lots,  and  for  erecting  monuments  in  the  cemetery,  and  prohibit  any  use, 
division,  improvement,  or  adornment  of  a  lot  which  it  deems  improper;  and  an  annual 
exhibit  shall  be  made  of  the  affairs  of  the  company  or  association.  (March  8,  1888, 
85  v.  76;  R.  S.   1880;  February  24,  1848,  46  v.  97,  §  7;  S.  &  C.  227.) 

§  3577.  COUNTY  COMMISSIONERS  MAY  PURCHASE  ROAD  TO  CEMETERY. 
—  The  county  commissioners  of  the  several  counties  may,  on  petition  for  that  purpose 
by  any  turnpike  road  company,  purchase  so  much  of  any  turnpike  road  as  liss  between 
any  city  or  village  and  any  cemetery  or  public  burying-ground,  and  make  the  same 
a  free  road  to  such  cemetery  or  burying-ground,  the  cost  of  the  same  to  be  paid  out 
of  the  county  bridge  fund;  and  so  much  of  such  road  as  is  so  purchased  by  the  county 
commissioners  shall  be  kept  in  repair  by  ±em,  and  the  cost  of  such  repairs  shall  be 
paid  for  out  of  the  county  general  fund.     (March  17,  1877,  74  v.  40,  §   1.) 

§  3578.  EXEMPTIONS  OF  BURIAL  GROUNDS. —  Lands  appropriated  and  set 
apart  as  burial  grounds,  either  for  public  or  private  use,  and  so  recorded  or  filed  in 
the  recorder's  office  of  the  county  where  the  same  are  situate,  or  any  burial  ground 
that  has  been  used  as  such  for  fifteen  years,  shall  not  be  subject  to  sale  on  execution 
en  any  judgment,  to  taxation  to  dower,  nor  to  compulsory  participation  (partition); 
but  land  so  appropriated  and  set  apart  as  a  private  burial  ground  shall  not  be  so 
exempt  if  it  exceed  in  value  the  sum  of  fifty  dollars.  (March  8,  1888,  85  v.  76; 
R.  S.   1880;  33  v.  11,  §  11,  (§   1);  S.  &  C.  227.) 

See  note  under  §   35V 1. 

§   3579.     MAY  ACT  AS  SOLDIERS'  MONUMENTAL  ASSOCIATION.—  Any  such 

company  or  association  may  act  either  as  a  soldiers'  monumental  or  as  a  cemetery 
association,  and  may,  as  it  shall  elect,  take  charge  of  the  management  of  cemetery 
grounds,  or  monuments  especially  erected  in  honor  of  soldiers  or  seamen  who  have 
died  in  the  service  of  the  state,  or  of  the  United  States,  or  both;  and  monuments,  and 
the  surroundings  thereof,  erected  in  honor  of  deceased  soldiers  or  seamen,  shall  be 
protected  by  and  under  the  penalties  prescribed  in  the  statutes  for  the  protection  of 
cemeteries  and  burial-grounds.      (March  16,  1865,  62  v.  44,  §  1;  S.  &  C.  68.) 

§  3580.  OFFICERS  OF  CEMETERY  ASSOCIATION  MAY  APPOINT  POLICE- 
MEN.— The  trustees,  directors,  or  other  officers  of  any  cemetery  company  or  associa- 
tion, whether  incorporated  or  unincorporated,  and  township  trustees  having  charge  of 
township  cemeteries,  may  appoint  as  many  day  and  night  watchmen  of  their  grounds 
as  they  deem  expedient.  Such  watchmen,  and  all  superintendents,  gardeners  and 
agents  of  such  company  or  association  or  of  said  township  trustees,  stationed  on  the 
grounds,  may  take  and  subscribe,  before  any  mayor  or  justice  of  the  peace  in  the  town- 


l\l  <  I  II' 


359 


Cemetery  Associations,  §§  358  I 


ship  where  such  grounds  are  situate,  an  oath  of  office  similar  to  th< 

law    of    constables,    and   upon    taking    such    oath,    BUCh    wratohmi 

gardeners,  or  agents  shall  have,  exercise  and  possess  all  the  po 

within  and  adjacent  to  the  cemetery  grounds,  and  anj 

rules  and  regulations  adopted  by  such  trustees,  directors  oi  Othfei  offl 

of  this  state  in  reference  to  the  protection,  good  order,  care  and   pr< 

teries,  and  the  trees,  shrubbery,  structures,  and  adornments  tl. 

of  a  misdemeanor,  and  fined  in  any  sum  not  more  than  fifty  dollar!  aoi 

dollars;    and  such  watchmen,  superintendents,  gardeners  and 

view,  all  persons  found  violating  the  provisions  of  this  section,  and  brl 

sons  so  offending  before  the  mayor  or  justice  of  the  peace  within  such  township,  I 

dealt  with  according  to  law.     (April  12,  1889,  86  v.  254;    Rev.  Stat.   1880;    A;,: 

1869,  66  v.  48,  §  2;    S.  &  S.  69.) 


§  3581.  POWERS  OF  ASSOCIATION  IN  CERTAIN  COUNTIES.  —  The  trustees 
of  any  cemetery  company  or  association,  in  any  county  containing  a  city  of  the  I 
class,  may  purchase,  or  take  by  gift  or  devise,  land  for  the  sole  and  exclusive  use  of 
a  cemetery,  not  exceeding  five  hundred  acres  in  extent,  and  hold  the  same  ex- 
from  execution,  and  from  appropriation  for  public  purposes,  three  hundred  acres  of 
which  shall  be  exempt  from  all  taxation;  and  the  trustees,  whenever  in  their  opinion 
any  portion  of  their  lands  is  unsuitable  for  burial  purposes,  may  sell  such  portion, 
and  apply  the  proceeds  thereof  to  the  general  purposes  of  the  company  or  association; 
but  upon  such  sales  being  made,  the  lands  so  sold  shall  be  returned  by  the  trustees 
to  the  auditor  of  the  proper  county,  to  be  by  him  placed  upon  the  grand  duplicate  for 
taxation.     (April  3,  1866,  63  v.  88,  §  1;    April  6,  1870,  67  v.  35,  6  1;    S.  &  S 


Must  be  in  actual  use  as  cemetery. 

The  mere  purchase  of  additional  ground,  on 
which  some  work  has  been  done  in  preparing 
it  for  burial  purposes,  but  which  has  not  been 


platted,  and  in  which  no  intern 
made,  does  no1  exempl  ii  from 
Cemetery  v.  Brooks,  8  C.  C.  43 

l  <  .   I).   178. 


§  3581a.  ACQUISITION  OR  SALE  OF  LAND  IN  COUNTY  CONTAINING  CITY 
OF  THE  SECOND  CLASS;  EXEMPTIONS;  TAXATION.  —  The  trustees  of  any 
cemetery  company  or  association  in  any  county  containing  a  city  of  the  second  class, 
may  purchase  or  take  by  gifts  or  devise,  land  for  the  sole  and  exclusive  use  of  a 
cemetery,  not  exceeding  three  hundred  acres  in  extent,  and  hold  the  same  exempt 
from  execution,  and  from  appropriation  for  public  purposes,  two  hundred  acres  of 
which  shall  be  exempt  from  all  taxation;  and  the  trustees  whenever  in  their  opinion 
any  portion  of  their  lands  is  unsuitable  for  burial  purposes,  may  sell  such  portions, 
and  apply  the  proceeds  thereof  to  the  general  purposes  of  the  company  or  association; 
but  upon  such  sales  being  made,  the  lands  so  sold  shall  be  returned  by  the  trustees 
to  the  auditor  of  the  proper  county,  to  be  by  him  placed  upon  the  grand  duplicate  for 
taxation.     (April  1,  1896,  92  v.  114.) 

§  3582.    HOW  RECEIPTS  AND  INCOME  TO  BE  APPLIED.  —  The  receipts  and 
income  of  such  company  or  association,  whether  derived  from  the  sale  of  lots,  from 
donations,  or  otherwise,  shall  be  applied  to  the  payment  of  the  purchase  of  such  lands, 
to  the  laying  out,  preservation,  protection,  and  establishment  of  the  cemetery,   and 
the  avenues  within  the  same,  to  the  erection  of  such  buildings  as  may  be  necess 
and  to  the  general  purposes  of  such  company  or  association;  no  debts  shall  be  c 
tracted  in  anticipation  of  future  receipts,  except  for  the  original  purchase  of  the  lar 
and  laying  out,  inclosing,  and  embellishing  the  grounds,  and  avenues  therein;    and 
part  of  the  proceeds  of  land  sold,  or  any  of  the  funds  of  any  such  company  c 
ciation,  shall  ever  be  divided  to  its  stockholders  or  lot-owners,  but  all  its  funds  shall 
be  used  exclusively  for  the  purpose  of  the  company  or  association,  as  herein  above 
specified,  or  invested  in  a  fund  the  income  of  which  shall  be  used  and  appropriated  as 
aforesaid.     (April  6,  1870,  67  v.  35,  §  2.) 


360  Private  Corporations  in  Ohio. 


Cemetery  Associations,  §§  3583-3586-1. 


§  3583.  MAY  ACCEPT  AND  EXECUTE  CERTAIN  TRUSTS.  —  Every  cemetery 
company  or  association  shall  have  full  power  and  capacity  to  take,  hold,  possess,  use, 
enjoy,  and  occupy  such  property  of  any  kind  as  may  he  hereafter  legally  given, 
granted,  or  devised  to  it,  for  the  purpose  of  building  or  repairing  fences,  graves, 
vaults,  monuments,  walks,  cemetery  lots,  drives,  or  avenues  in  its  cemetery,  or  for  the 
purpose  of  building  or  repairing  therein  any  particular  fence,  cemetery  lot,  grave, 
vault,  monument,  walk,  drive,  or  avenue,  and  to  appropriate  such  property,  or  the 
proceeds  thereof,  to  any  of  the  foregoing  purposes,  according  to  the  terms  of  the  trust 
for  which  the  same  may  be  given,  granted,  or  devised  as  aforesaid.  (April  11,  1876, 
73  v.  210,  §  1.) 

§  3584.     WHEN   SUCH   CORPORATION   MAY  HOLD   LAND   IN   VILLAGE.  — 

Any  association  cf  persons  who  have  been  and  are  acting  as  a  cemetery  association, 
and  have  purchased  and  improved  land  for  cemetery  purposes,  paid  for  by  subscrip- 
tions of  lot-holders  and  the  sale  of  lots,  and  who  are  acting  through  a  board  of  trus- 
tees chosen  by  members  of  the  association,  may,  when  the  lands  thus  occupied  for 
cemetery  purposes  have  been  brought  or  held  within  the  corporate  limits  of  any  vil- 
lage subsequently  to  the  time  of  their  purchase  and  improvement,  become  incorporated 
for  cemetery  purposes,  as  though  the  lands  held  by  the  association  were  outside  of 
such  corporate  limits.     (May  7,  1878,  75  v.  132,  §  1.) 

§  3585.  POWERS  OF  CERTAIN  CORPORATIONS.  —  Any  association  organized 
under  the  preceding  section  may,  as  the  successor  of  the  original  association,  through 
and  by  the  concurrence  of  the  original  association,  take  possession  of,  hold,  and  use 
for  cemetery  purposes,  all  the  property  belonging  to  and  held  by  the  original  asso- 
ciation for  such  purposes,  with  full  power  ,to  sell  and  convey  lots,  and  to  do  all  and 
singular  the  things  necessary  in  the  proper  arrangement  of  the  affairs  of  such  asso- 
ciation.    (May  7,  1878,  75  v.  132,  §  2.) 

§  3586.  RIGHTS  OF  LOT-OWNERS  ASSURED.  —  All  rights  of  present  lot- 
owners  in  the  cemetery  grounds  of  the  original  association  are  reserved  and  assured 
to  them,  and  made  valid,  without  reference  to  the  form  of  conveyance  issued  to  them 
by  the  trustees  of  the  original  association.     (May  7,  1878,  75  v.  132,  §  3.) 

§  3586a.  RIGHTS  AND  POWERS  OF  CREMATORY  ASSOCIATIONS.  —  Any 
company  or  association  incorporated  for  the  purpose  of  the  erection  and  maintenance 
of  a  crematory  or  other  place  or  building  for  cremating  the  dead,  may  exercise  all  the 
rights  and  powers  conferred  by  this  chapter,  subject  to  the  same  conditions;  pro- 
vided, however,  that  no  building  shall  be  erected  for  any  such  purpose  by  any  com- 
pany, association,  person  or  persons  within  two  hundred  yards  of  any  dwelling-house, 
unless  the  owner  of  such  dwelling-house  give  his  consent,  and  it  shall  be  unlawful 
for  any  person  or  persons,  company,  association  or  firm  to  establish  a  morgue  on  any 
street  or  part  of  a  street  upon  which  are  dwelling-houses,  unless  the  owner  or  occu- 
pants of  such  dwelling-houses  within  two  hundred  yards  (200  yards)  of  said  proposed 
morgue  give  their  written  consent  thereto;  provided  that  this  act  shall  not  apply  to 
any  crematory  already  built,  or  morgue  already  established.  (April  3,  1900,  94  v. 
95;   April  11,  1893,  90  v.  161.) 

§  3586-1.  Sec.  1.  AUTHORIZING  SALE  OF  CERTAIN  CEMETERIES;  APPLI- 
CATION OF  PROCEEDS.  —  The  trustees  of  any  cemetery  association,  whose  cemetery 
is  within  the  limits  of  any  city  or  village,  interments  in  which  have  been  prohibited 
by  ordinance  of  such  municipal  corporation,  or  whose  cemetery  has  been  abandoned 
as  a  place  for  the  burial  of  the  dead,  or  which  association  is  involved  in  debt  which 
it  is  unable  to  pay,  may  apply  by  petition  to  the  court  of  common  pleas,  of  the  county 
wherein  such  cemetery  is  located,  for  the  sale  of  the  whole  or  a  portion  of  said  ceme- 
tery grounds,  and  the  court  may  order  the  same  to  be  sold,  either  the  whole  or  such 


361 


Cemetery  Associations,  §§  3580 


portion  thereof  as  the  court  may  direct,  and  the  i 

under  the  direction  of  the  court,  be  applied  to  the  co.- 1 

and  reinterment  cf  the  remains  of  the  de 

if  there  be  any,  of  such  cemetery  association,  and  the  BU 

upon  interest,  and  the  income  therefrom  applied  to  k<  • 

tion  thereof,  or  if  the  entire  premises  be  sol- 

rata  along  the  lot-owners,  and  the  court  shall  gri  1  >  BUcfc 

dead,  after  the  confirmation  of  such  sale,   as  it  may  deem  in 

1888,  85  v.  7;   April  29,  1885,  82  v.  164.) 

§  3586-2.     Sec.  2.    NOTICE  OF  APPLICATION;    ORDER  OF  SALE.  —  N 
the  filing  of  such  application  shall  be  given  by  publication  in  some  i 
eral  circulation  in  the  county  where  it  is  filed,  for  four  consecutive  v. 
forth  the  object  and  prayer  thereof,  and  that  any  person  claiming  an  inter*    I 
subject-matter  of  such  petition  may  appear  and  file  an  answer  therein;    and  the  court 
shall,  on  final  hearing  of  the  case,  make  such  order  or  decree  as  will  best  seeur< 
rights  of  the  persons  having  an  interest  in  such  cemetery.     (April  2'J.   1885.  82  v. 
164.) 

§    3586-3.      Sec.     1.     CEMETERY    ASSOCIATIONS    MAY    CREATE    SIN: 
FUND.  —  Any  cemetery  association  which  has  been  organized  under  any  general  or 
special  law  of  this  state  is  hereby  fully  authorized  and  empowered  to  create  a  • 
ing  fund,  out  of  any  surplus  money  they  may  have  on  hand,  or  which  may  have  been 
given  to  said  association  by  will,  deed  or  otherwise.     (April  3,   1883,  80  v.  91.) 

§  3586-4.    HOW  SUCH  FUNDS  MAY  BE  INVESTED.  —  That  it  shall  be  1 
for  any  cemetery  association  so  organized  to  invest  any  sum  of  money  appropi . 
to  said  sinking  fund  in  any  bonds  of  the  United  States,  state  of  Ohio  or  of  any 
of  the  state  of  Ohio,  or  to  loan  it  upon  first  mortgage  of  real  estate  in  the  state  of 
Ohio  worth  double  the  loan,  or  upon  collateral  of  any  of  the  above  securities  of  equil 
face  value  with  the  loan;    provided,  however,  that  it  shall  not  be  lawful  to  loan 
such  money  to  any  member  of  said  cemetery  board.     (April  3,  1883,  80  v.  91.) 

§  3586-5.  Sec.  3.  HOW  EXPENDED.  —  That  all  moneys  thus  appropriated  to 
any  sinking  fund,  and  all  interest  derived  thereon  shall  be  held  exclusively  for  the 
enlargement  of  cemetery  grounds,  their  improvement,  repair  or  adornment,  o 
constructing  or  keeping  in  repair  any  buildings,  monuments  or  other  structures 
deemed  necessary  or  appropriate  for  cemetery  grounds,  and  shall  not  be  appropriated 
or  used  for  any  other  purpose  whatever.     (April  3,  1883,  80  v.  91.) 


PART  XIV. 

LIFE  INSURANCE  COMPANIES. 

§  3587.  For  what  purposes  companies  may  be  formed. 

§3588.  Articles  of  incorporation;  what  to  contain. 

§  3589.  Articles  must  be  approved  by  the  attorney-general. 

§  3500.  Notice  of  opening  books  of  subscription. 

§  3591.  The  whole  capital  must  be  paid  in,  and  invested. 

§  3592.  A  company  may  increase  its  capital  stock. 

§  3593.  Deposit  of  secureties  to  be  made  with  superintendent. 

§  3594.  Company  may  change  such  deposits,  and  collect  interest. 

§  3595.  When  company  may  commence  business. 

§  3596.  What  kind  of  business  such  company  may  do. 

§  3597.  Definitions.  Consolidation  and  reinsurance.  Petition  to  superintendent  of  insur- 
ance. Notice  to  policy  holders.  Commission  to  hear  and  determine  petition. 
Costs.     Penalties. 

§  3598.  How  home  companies  may  invest  accumulations. 

§  3599.  What  real  estate  may  acquire. 

§  3000.  AYhen  real  estate  must  be  sold. 

§  3001.  Certain  actions  authorized. 

§  3602.  What  dividends  may  be  paid. 

§  3003.  Home  companies  must  make  annual  reports  to  superintendent. 

§  3604.  Companies  organized  by  congress  or  in  other  state  must  procure  license. 

§  3605.  Deposit  with  superintendent  of  insurance  or  other  officer. 

§  3606.  Must  file  copy  of  charter,  and  a  statement. 

§  3607.  Must  also  file  a  waiver. 

§  3608.  Must  tile  annual  statement  as  to  tontine  companies. 

§  3609.  Renewal  certificate  of  authority. 

§  3610.  Foreign  companies  must  make  deposit,  and  appoint  agent  for  service. 

§  3611.  Annual  and  other  statement  to  be  filed. 

§  3612.  Supplementary  statement. 

§  3613.  Renewal  certificates  of  authority. 

§  3614.  Certificate  of  authority  to  act  as  agent. 

§  3615.  Penalties  for  failure  to  make  statement. 

§  3616.  Duration  of  licenses. 

§  3617.  When  foreign  companies  must  appoint  agents  to  receive  service. 

§  3618.  Who  are  agents  to  receive  service. 

§  3619.  Companies  may  change  securities,  and  collect  interest. 

§  :>r>2<>.  Authority  to  be  withdrawn  in  certain  case. 

S  3621.  Policy  holders  entitled  to  copies  of  applications. 

§  3022.  Effect  of  failure  to  deliver  copies. 

§3623.  Copies  of  applications  to  accompany  policies  issued. 

S  3624.  Applications,  etc.,  in  cipher  void. 

§  3625.  When  a  false  answer  is  material. 

§  3626.  When  companies  estopped  from  certain  defenses. 

§  3627.  This  chapter  applies  to  companies  heretofore  organized. 

§  3628.  Husband  may  insure  for  benefit  of  wife  and  children.  Insurance  exempt  from 
chums  of  creditor.  Premiums  paid  in  fraud  inures  to  creditor.  When  company 
liable  to  creditor. 

§  3629.  Wife  may  insure  life  of  husband. 

[302| 


Life  [nsur  •■.  .  n  -. 


363 


§  3630.        Mutual  protection    associations;  powers;  accumulatioi 

§  3(S30a.      Mutual  aid  associations  annually    to  ftle  with   superintendent 

statement  of  its  transactions;   what   Buch  statements  !■• 
§3G,'5()b.      To  make  such  report   to  superintendent   within  ninetj  days. 
§  3630c.       Failure  to  ftle  statement    in  work  forfeiture  oi  fran< 

stitute  proceedings. 
§  3(530(1.      Superintendent   of  insurance  may   cause  examination   to  be  made. 
§  3(!30e.       Rules  under  which  foreign  associations  may  do  business  in  th 

revocation;  annual  statement;  obligations  similai  to  those 
§  3630f .       When  action  against   such  association  maj   be  brought. 
§ 3630g.      Mutual  protect  ion  associations  and   their  agents;    bow   restricted   in   thi 

policies;   penalty;  accident  companies. 
§  3630h.       Expenses;  how  paid. 
§  3G30i.       Against  personal  injury  and  loss  of  life;  against    expei 

sioned  by  injury  or  sickness;  expenses,  how    met;    expense,   I"--,  and 

funds;    separation  of  such  funds;    notice   to   persons 

only  purely  accident  companies. 
§  3630 j.        Foreign   casualty  companies,  admission. 

§3631.         No  agent  to  collect  dues  without  giving  bond;  bond  of  treasure] 
§  3631a.       Mutual  benefit,  etc.,   societies  excepted.      Winn  associations  becomi  to  in- 

surance laws.     Bond  of  treasurer. 
§3631-1.     Insurance  companies  forbidden  to  discriminate   against   persons   of  Airi 

in   premiums. 
§  3631-2.     What  shall  be  done  when  application  of  persons  of  color  is  refused. 
§  3631-3.     Penalty  for  violating  this  act. 

§3631-4.     Premiums   for  life   or   endowment  insurance:    unlawful    to   discrimil 
§3631-5.     Penalty  for  violation  by  corporation  of  provision-  of  this  act. 
§  3631-6.     Violation  by  officer  or  agent  of  corporation. 
§  3631-7.     Revocation  of  license  for  violation. 

§3631-8.     Certain  incorporated  companies  may  purchase  and  own  Btock   ii1  other  companies. 
§  3631-9.     To  be  liable  in  corporate  capacity  same  as  individuals. 
§  3631-10.  Directors;  when  and  how  elected. 

Fraternal  Orders. 
§3631-11.  Fraternal  beneficiary  association  defined;    as  to   benefits   in   detail. 
§3631-12.  Conditions  upon  which  society,  order,  or  association  which  bas  been 

continue. 
§3631-13.  Conditions  upon  which  foreign  association  admitted. 
§  3631-14.  Annual  report  of  associations. 
§  3631-15.  As  to   process. 

§3631-16.  Permit  to  do  business:  fee;   annual  fee  thereafter. 
§  3631-17.  Procedure  and  requirements  in  formation  of  association;  annual  meel  I 

of  managers  or  trustees. 
§3631-18.  Benefits  not  liable  to  attachment,  seizure,  etc. 
§  3631-19.  Legislative. 

§3631-20.  Penalty  for  false  or   fraudulent   statement  or  representation. 
§3631-21.  Exclusion  of  association:   proceedings  in  injunction;   reinstatement. 
§3631-22.  Who  subject  to  penalty  provided   in  preceding  section. 
§3631-23.  Conflicting  or  inconsistent  laws  repealed:  lodges,  etc.,  to  which  act  is 

STiPtTLATi  d  Premium  Pi  w 
§3631-24.  Incorporation  of  companies  for  life  insurance  on  the  stipulated   prem 
§3631-25.  Completion  of  organization.     Deposit   of  securities. 

§3631-26.  Life   insurance   on  stipulated    premium   plan   defined:  pro- 

visions of  act;    existing   statutes. 


364 


Private  Corporations  in  Ohio. 


Life  Insurance  Companies,  Formation,  etc.,   §§   3587-3588. 

§  3631-27.  Existing  corporations,  etc.,  may  accept  provisions  of  act ;  how.  Existing  contract 
or  liability  of  corporation  not  affected  by  its  reincorporation  or  acceptance. 
Pending  action  or  rights  unaffected. 

§  3631-28.  Minimum  premiums. 

§  3621-29.  Reserve  fund.  Impairment  of  fund  remedied.  Duty  of  superintendent  in  case  of 
failure  to  remedy  impairment. 

§  3631-30.  Limited  payment  policies. 

§  3631-31.  Cash  values. 

§  3631-32.  Distribution  of  surplus. 

§  3631-33.  What  policy  shall  set  forth.  Obligation  of  company  to  beneficiaries  or  insured. 
Refusal  or  failure  to  pay. 

§  3631-31.  Foreign  corporations  must  procure  certificate  of  authority.  Renewal  certificates. 
Superintendent  may  refuse  certificate.  Obligations  similar  to  those  of  either 
states.     Foreign  company  to  furnish  evidence  to  entitle  it  to  license. 

§  3631-35.  Discrimination  prohibited.     Contracts  by   agents.     Rebate  of  premium  prohibited. 

§  3631-36.  Policy  holder  not  personally  liable  for  losses  of  corporation. 

§  3631-37.  Withdrawal  of  securities  upon  relinquishment  of  business. 

§  3631-38.  Taxes. 

§  3587.  FOR  WHAT  PURPOSES  COMPANIES  MAY  BE  FORMED.  —  Any  num- 
ber of  persons,  not  less  than  thirteen,  may  associate  and  form  a  company  to  make 
insurance  upon  the  lives  cf  individuals,  and  every  insurance  appertaining  thereto  or 
connected  therewith,  on  the  mutual  or  stock  plan,  and  grant,  purchase,  or  dispose  of 
annuities.     (April  27,  1872,  69  v.  150,  §  1.) 


Must  deposit  security. 

Companies  organized  under  this  section 
must  furnish  security  for  the  assured,  as  pro- 
vided in  §  3593.  —  State  v.  Moore,  38  Oh.  St. 

7.  11    (1882). 

Classification  of  companies. 

Life  insurance  companies,  other  than  fra- 
ternal, are  divided  into  two  classes,  first  those 
companies  that  have  a  capital  stock,  or,  at 
least,  capital;  and,  second,  those  that  have 
neither  capital  stock  nor  capital.  The  general 
powers  of  the  former  are  granted  by  §  35S7 ; 
those  of  the  latter  by  §  3630.  —  Ohio  ex  rel. 
v.  Ins.  Co.,  58  Oh.  St.  1    (1898). 

Power  of  each  class. 

The  first  class  is  limited  to  insuring  on  the 
"mutual  or  stock"  plan,  the  other  class,  to 
insuring  "  on  the  assessment  "  plan.  It  fol- 
lows then,  that  wl  ile  Ohio  corporations  com- 
ing under  the  first  class  have  no  power  to  do 
business  under  the  assessment  plan,  yet  a 
foreign  corporation  having  such  power  under 


its  charter,  should  be  allowed  to  do  business 
in  this  state.  —  Ohio  ex  rel.  v.  Ins.  Co.,  58  Oh. 
St.   1    (1S98). 

Incidental  powers. 

Unless  restrained,  corporations  have  inci- 
dental powers  to  make  any  contract.  But 
such  contracts  must  not  be  contrary  to  the 
objects  for  which  the  corporation  is  created. 
—  Strauss  v.  Ins.  Co.,  5  Oh.  St.  59  (1856); 
White's  Bank  v.  Ins.  Co.,  12  Ohio  St.  601 
(1861). 

Insurance     business     may     lawfully     be 
confined   to    corporations. 

Commonweath    v.    Vrooman,    164    Pa.    306 

(1894). 

Policy  issued  to  minor  not  void. 

A  policy  issued  on  the  life  of  a  minor  is  not 
absolutely  void,  nor  are  notes  given  by  him 
for  premium  void,  although  the  assured  has 
power  to  elect  to  avoid  both  on  arriving  at 
majority.  —  Ins.  Co.  v.  Hillard,  Admr.,  44  \Y. 
L.  B.   353    (1900). 


§  3588.  ARTICLES  OF  INCORPORATION;  WHAT  TO  CONTAIN.— Such  per- 
sons shall  file  in  the  office  of  the  secretary  of  state  articles  of  incorporation,  signed  by 
them,  setting  forth  their  intention  to  form  a  company  for  the  purposes  named  in  this 
chapter,  which  articles  shall  comprise  a  copy  of  the  charter  they  propose  to  adopt; 
and  the  charter  shall  set  forth  the  name  of  the  company,  which  shall  not  be  the  cor- 
porate name  or  title  used  to  designate  any  fire,  life,  marine,  or  other  insurance  com- 
pany already  existing  under  the  laws  of  this  state,  the  place  where  it  is  to  be  located, 
the  kind  of  business  to  be  undertaken,  the  manner  in  which  the  corporate  powers  of 
the  company  are  to  be  exercised,  the  number  of  directors  or  trustees,  who  must  be 
stockholders,  or  members,  and  which  number  may  be  increased,  at  the  will  of  the 
stockholders  representing  a  majority  of  the  stock,  or  of  a  majority  of  the  members,  to 
any  number  not  exceeding  twenty-one.  the  manner  of  electing  trustees  or  directors  and 
other  officers,  a  majority  of  whom  shall  be  citizens  of  this  state,  and  the  time  of  such 


Life  I  ce  (  omi  355 


Articles  —  Capital   Stock,  c  • 


t he  auditor)    in  determining  t he   n 

which  t  li«-  associal  ion  rnaj   '!•■  bush 

conclusn  e  aa  to  anol  her  associal  ion  • '. 

a  prior   righl    to   the   use  of  name  ■ 

name.     Grand    Lodge    v.   Graham,  65    V    \v. 

837   (HI.)    (1896), 

Sec  generally  American  Order,  •' 
rill,    151    Mass.   558    |  I-'"1    ;    I 
v.  Commissioner.  7::   N.  V. 


election,  the  manner  of  filling  vacancies,  the  amount  of  capital   to 
such  other  particulars  as  may  be  necessary  to  explain  Mid  DUtki 
and  purposes  of  the  company,  and  the  manner  in  which  it  is  to  be  - 
27,  1872,  69  v.   150,   §  4;  April  11,   1863,  60  v.  75,       1;  M 
S.  &  S.  217;  S.  &  S.  219.) 

§    3589.     ARTICLES  MUST  BE  APPROVED  BY  THE  ATTORNEY  \L  — 

When  such  articles   are   filed   in   the  office  of  the  secretary   of 
assumed  by  the  company  is  not  so  nearly  similar  to  the  name  of  any  othei 
organized  in  this  state  as  to  lead  to  confusion  or  uncertainty  on  the  part  of  ti 
the  secretary  of  state  shall  submit  the  same  to  the  attorney-general  foi    • 
and  if  found  by  him  to  be  in  accordance  with  the  provisions  of  this  chv 
inconsistent  with  the  constitution  and  laws  of  the  United  States  and  of  this  .state,  he 
shall  certify  to  and  deliver  the  same  to  the  secretary  of  state,   who  shall   i 
same,  with  the  certificate  of  the  attorney-general,  to  be  recorded  in  a  book  to  be  kept 
for  that  purpose,  and  upon  application  of  the  signers  thereof  the  secretary  of 
shall   furnish  to   them   a  certified   copy  of  such   articles    and  certificate.     (April    27, 
1872,  69  v.  150,  §  5;  May  14,  1878,  75  v.  557,  §  1;  S.  &  S.  219.) 

Similarity  of  names. 

The  power  vested  in  the  superintendent  of 
insurance  to  reject  any  name  or  title  applied 
for  by  any  company  if  it  is  too  similar  to  one 
already  appropriated,  is  limited  to  domestic 
corporations. —  Tns.  Co.  v.  Van  Cleave,  47  L. 
R.  A.    (111.)   795    (1898). 

Same  subject;  action  of  officer  not  con- 
clusive. 

The  action  of  the  proper  officer  (in  this  case 

§  3590.  NOTICE  OF  OPENING  OF  BOOKS  OF  SUBSCRIPTION  —  When  the 
signers  of  the  articles  of  incorporation  receive  from  the  secretary  of  state  a  certified 
copy  thereof,  and  desire  to  organize  such  company,  they  shall  publish  their  intention 
in  a  paper  published  and  having  general  circulation  in  the  county  in  which  the  com- 
pany is  to  be  organized;  and  when  such  publication  has  been  made  in  such  newspaper 
for  six  weeks,  they  may  open  books  to  receive  subscriptions  to  the  capital  stock,  keep 
such  books  open  until  the  amount  required  by  this  chapter  is  subscribed,  distribute 
the  stock  among  the  subscribers,  if  more  than  the  necessary  amount  is  subscribed, 
collect  the  capital,  and  complete  the  organization  of  the  company.  (April  27.  1872. 
69  v.   150,  §  6;  S.  &  S.  219.) 

§  3591.  THE  WHOLE  CAPITAL  MUST  BE  PAID  IN,  AND  INVESTED  —  No 
joint  stock  company  shall  be  organized  under  this  chapter  with  a  less  capital  than  one 
hundred  thousand  dollars,  and  the  whole  capital  shall,  before  proceeding  to  business, 
be  paid  in  and  invested  in  treasury  notes,  in  stocks  or  bonds  of  the  United  State?,  in 
stocks  or  bonds  of  the  state  of,Ohio,  or  of  any  municipality  or  county  thereof,  or  in 
mortgages  on  unincumbered  real  estate  within  the  state  of  Ohio  worth  double  the 
amount  loaned  thereon.  If  the  amount  loaned  shall  exceed  one-half  the  value  of  the 
land  mortgaged,  exclusive  of  structures  thereon,  such  structures  shall  be  insured  in 
an  authorized  fire  insurance  company  in  any  amount  not  less  than  the  difference 
between  one-half  the  value  of  such  land  exclusive  of  structures,  and  the  amou 
loaned,  and  the  policy  assigned  to  the  mortgagee.  (March  5,  1902.  95  v.  38;  April  27. 
1894,  91  v.  39;  April  9,  1873,  70  v.  118,  §  7;  S.  &  S.  219.) 

i-  no  less  than   that   of  any 
rower,  nor  arc  his  rights  nrni- 

borrowing  stockholder.-    I 
Curtis,  35  Oh.   5 


Note  and  mortgage  given  for  stock,  how 
regarded. 

Where  one  executes  to  the  company  his  note 
and  mortorajre  in  part  payment  of  stock  sub- 
scriptions, the  stock  will  be  regarded  as  paid 
in.  and  the  note  and  morteapre  given  for  money 
loaned  or  invested  by  the  company.  Such 
stockholder's  liability   on   his  note  and   mort- 


is t>>  investments,  see  Ehrman  '■ 

35  Oh.  St.  324    (1880);   Tn=.  Co.  v 

380)  :   Tns.  Co.  v.  Curtis  35  Oh. 
St.  343    (1880).      S 


366 


Private  Corporations  in  Ohio. 


Capital  Stock — Commencing  Business,  etc.,  §§  3592-3596. 

§  3592.  A  COMPANY  MAY  INCREASE  ITS  CAPITAL  STOCK.—  When  a  com- 
pany organized  under  any  law  of  this  state  requires,  in  the  opinion  of  the  board  of 
directors  thereof,  a  larger  amount  of  capital  than  that  fixed  by  its  articles  of  incor- 
poration, they  shall,  if  authorized  by  the  holders  of  two-thirds  of  the  stock,  file  with 
the  secretary  of  state  a  certificate  setting  forth  the  amount  of  such  desired  increase, 
and  thereafter  such  company  shall  be  entitled  to  have  the  increased  amount  of  capital 
fixed  by  the  certificate,  and  the  same  shall  be  invested  as  required  by  the  preceding 
section.     (April  27,  1872,  69  v.   150,   §  6.) 

§  3593.  DEPOSIT  OF  SECURITIES  TO  BE  MADE  WITH  SUPERINTENDENT. 
—  Any  company  may  invest  its  capital  in  the  stocks,  bonds,  or  mortgages  mentioned 
in  section  thirty-five  hundred  and  ninety-one,  attd  change  and  invest  the  same,  or  any 
part  thereof  in  like  manner,  at  pleasure;  but  no  company  shall  commence  business 
until  it  has  deposited  with  the  superintendent  of  insurance  at  least  one  hundred  thou- 
sand dollars  in  the  stocks,  bonds,  and  mortgages  aforesaid,  or  one  or  more  of  them, 
duly  made  or  assigned  to  the  superintendent  in  trust  for  the  purposes  mentioned  in 
this  chapter;  and  when  any  mortgage  of  real  estate  is  assigned  to  the  superintendent, 
the  assignment  shall  be  immediately  entered  in  the  records  of  the  county  in  which 
the  real  estate  is  situate,  the  fee  for  the  recording  of  which  shall  be  paid  by  the  com- 
pany.    (April  27,   1872,  69  v.  150,  §  8;  S.  &  S.  219.) 


to  the  company,  for  the  purpose  of  being  de- 
posited with  the  superintendent,  upon  the 
insolvency  of  the  company,  such  securities  are 
subject  to  the  claims  of  the  policy  holders; 
but  as  against  general  creditors,  the  same 
defenses  may  be  invoked  as  against  the  com- 
pany. The  makers  of  such  accommodation 
securities,  as  against  policy  holders,  are 
estopped  to  deny  the  existence  of  the  cor- 
poration and  its  powers  to  issue  such  policies. 
—  Falkenbach  v.  Patterson,  43  Oh.  St.  359 
(1SS5).  See  Cooke  v.  Warner,  5G  Conn.  234 
(1888). 


Deposit  primarily  for  benefit  of  policy 
holders. 

The  deposit  is  solely  for  the  security  of 
policy  holders,  and  not  for  the  security  of 
general  creditors,  and  before  resort  can  be  had 
to  this  fund,  there  must  be  shown  some  spe- 
cific amount  due,  or  that  may  become  due,  on 
account  of  such  policv  holders. —  Falkenbach 
v.  Patterson,  43  Oh.  St.  359   (1885). 

Accommodation  securities  accrue  to 
policy  holders,  not  to  general  cred- 
itors. 

Where   accommodation   securities  are   given  ' 

§  3594.  COMPANY  MAY  CHANGE  SUCH  DEPOSITS,  AND  COLLECT  INTER- 
EST.—  The  superintendent  of  insurance  shall  hold  such  securities  as  security  for 
policyholders  in  the  company;  but  so  long  as  any  company  so  depositing  continues 
solvent  he  shall  permit  it  to  collect  the  interest  or  dividends  on  its  securities  so 
deposited,  and  from  time  to  time  to  withdraw  such  securities,  or  any  part  thereof,  on 
depositing  with  him  other  securities  of  the  kinds  heretofore  named,  and  of  equal 
value  with  those  withdrawn.     (April  27,   1872.  69  v.   150,  §  9;  S.  &  S.  220.) 

§  3595.  WHEN  COMPANY  MAY  COMMENCE  BUSINESS.—  When  the  company 
is  fully  organized,  and  has  deposited  the  requisite  amount  of  securities  as  aforesaid, 
the  superintendent  shall,  unless  he  find  the  name  assumed  by  the  company  so  nearly 
similar  to  the  name  of  another  company  organized  in  this  state  as  to  lead  to  confusion 
or  uncertainty  on  the  part  of  the  public,  furnish  the  company  with  a  certificate  of  such 
deposit,  which,  with  a  certified  copy  of  the  papers  required  by  this  chapter,  when  filed 
in  the  county  recorder's  office  of  the  county  wherein  such  company  is  located,  shall 
be  the  authority  to  commence  business  and  to  issue  policies,  and  the  same  may  be 
used  in  evidence  for  and  against  the  company  in  all  actions.  (April  27,  1872,  09  v. 
150,   §  10;  May  14,  1878,  75  v.   557,  §  2;  S.  &  S.  220.) 

§  3596.  WHAT  KIND  OF  BUSINESS  SUCH  COMPANIES  MAY  DO.— No  com- 
pany, organized  under  the  laws  of  this  state,  shall  undertake  any  business  or  risk, 
except  as  herein  provided,  and  no  company,  partnership  or  association,  organized  or 
incorporated  by  act  of  congress,  or  under  the  laws  of  this  or  any  other  state  of  the 
United  States,  or  by  any  foreign  government,  transacting  the  business  of  life  insur- 
ance in  this  state,  shall  be  permitted  or  allowed  to  take  any  other  kind  of  risks,  except 


J.  I  I  E    [NSURANl   i     I 


367 


Consolidation  —  Re-iiiMiian...   etc.,       3597. 


those  connected  with,  or  appertaining  to  making   Insurance  on   Ufa  01  acci- 

dents to  persons,  or  sickness,  temporary  or  permanenl    phj 
ing,  purchasing  and  disposing  of  annuities;  nor  shall  Lneai  of   i 

or  life  and  accident  insurance,  in  this  state  be  In  any  wise  condu 
by  any  company,  partnership  or  association  which  in   thJ 
or  country,    makes   insurance   en  marine,   fire,    inland,   or   any   o 1 1 1 ■ 
banking  or  any  other  kind  of  business  in  connection  with  insurance.     (May  2,    1 
95  v.   355;  March  27,    1888,  85  v.    119;  R.   S.   1880;   April    1.    1872,   69   v.    i 
February  20,  1874,  71  v.   12,  §  2;  S.  &  S.   218.) 


Loan  on  note  and  mortgage,  not  bank- 
ing. 

The  loaning  of  money,  secured  by  note  and 
mortgage,  is  not  the  doing  "  of  a  banking,  or 
other  kind  of  business."  National  Bank  v. 
Ins.  Co.,  41  Oh.  St.  1  (1885);  Hall  v.  Kuin- 
mero  et  al..  7  X.  P.  394  (1897)  ;  s,  c,  5  Dec.  L76. 


Purchase  of  bill   of  exchange,  legal* 

A    company    authorized    to    loan    it 
bu1    prohibited    from    using   th< 

I>ii~.iiit  — .   of  exchang ■   mom 

lawfully     purchase     a     bill 
Whito's    Bank    \.    Ens.    <  o.,    I 
(1861  |. 


§  3597.  INSURANCE  COMPANIES;  DEFINITION;  CONSOLIDATION  AND 
RE-INSURANCE;  PETITION  TO  SUPERINTENDENT;  NOTICE  TO  POI ICY 
HOLDERS;  HEARING  OF  PETITION  BY  COMMISSION;  COSTS;  PENALTY  — 
The  word  company  or  companies  when  used  in  this  act  shall  mean  any  corporation  or 
association  authorized  to  do  the  business  of  life,  accident  or  health  insurance,  either  on 
the  stock,  mutual,  stipulated  premiums,  assessment  or  fraternal  plan.  No  company 
organized  under  the  laws  of  this  state  to  do  the  business  of  life,  accident  or  health 
insurance,  either  on  stock,  mutual,  stipulated  premiums,  assessment  or  fraternal  plan, 
shall  consolidate  with  any  other  company,  or  reinsure  its  risks,  or  any  part  thereof 
with  any  other  company,  or  assume  or  reinsure  the  whole  of  (or)  any  portion  of  the 
risks  of  any  other  company,  except  as  hereinafter  provided;  but  nothing  here'.n  con- 
tained shall  prevent  any  such  company  from  reinsuring  a  fractional  part,  not  exceed- 
ing one-half,  of  any  single  risk.  When  any  such  company  shall  propose  to 
consolidate  with  any  other  company,  or  enter  into  any  contract  of  reinsurance,  it 
shall  present  its  petition  to  the  superintendent  of  the  insurance  department  of  this 
state,  setting  forth  the  terms  and  conditions  of  such  proposed  consolidation  or  rein- 
surance, and  praying  for  the  approval  or  of  any  modification  thereof,  which  the  com- 
mission hereinafter  provided  for  may  approve.  The  superintendent  shall  thereupon 
issue  an  order  of  notice,  requiring  notice  to  be  given  by  mail  to  the  policy-holders  of 
such  company,  of  the  pendency  of  such  petition,  and  the  time  and  place  at  which  the 
same  will  be  heard,  and  the  publication  of  said  order  of  notice  and  said  petition,  in 
five  daily  newspapers  designated  by  the  superintendent,  at  least  one  of  which  shall 
be  published  in  the  city  of  Columbus,  for  at  least  two  weeks  before  the  time  appointed 
for  the  hearing  upon  said  petition.  The  governor  of  the  state,  or  in  event  of  his 
inability  to  act,  some  competent  person  resident  of  the  state  to  be  appointed  by  him. 
the  attorney-general  of  the  state,  and  the  superintendent  of  insurance  of  the  state, 
shall  constitute  a  commission  to  hear  and  determine  upon  said  petition.  At  the  time 
and  place  fixed  in  said  notice,  or  at  such  time  and  place  as  shall  be  fixed  by  adjourn- 
ment, said  commission  shall  proceed  with  said  hearing,  and  may  make  such  examina- 
tion into  the  affairs  and  condition  of  said  company  as  it  may  deem  proper.  The 
superintendent  of  the  insurance  department  of  this  state  shall  have  the  power  to 
summon  and  compel  the  attendance  and  testimony  of  witnesses  and  the  production 
of  books  and  papers  before  said  commission.  Any  policy  holder  or  stockholder  o 
above-named  company  or  companies  may  appear  before  said  commission  and  be  heard 
in  reference  to  said  petition.  Said  commission,  if  satisfied,  that  the  interests  of 
policy  holders  of  such  company  or  companies  are  properly  protected,  and  that  no 
reasonable  objection  exists  thereto,  may  approve  and  authorize  the  proposed  con- 
solidation or  reinsurance,  or  of  such  modification  thereof  as  may  seem  to  i1 
the  interests  of  the  policy  holders,  and  said  commission  may  make  cuch  order  with 
reference  to  the  distribution  and  disposition  of  the  surplus  assets  of  any  such  company 


368  Private  Corporations  in  Chio. 

Investments  —  Real  Estate,   §§   3598,  3599. 

thereafter  remaining,  as  shall  be  just  and  equitable.  Such  consolidation  or  reinsur- 
ance shall  only  be  approved  by  the  consent  of  all  the  members  of  said  commission, 
and  it  shall  be  the  duty  of  said  commission  to  guard  the  interests  of  the  policy  holders 
of  any  such  company  or  companies  proposing  to  consolidate  or  reinsure.  All  expenses 
and  costs  incident  to  proceedings  under  this  section  shall  be  paid  by  the  company  or 
companies  bringing  said  petition.  Any  officer,  director  or  stockholder  of  any  such 
company  or  companies  violating  or  consenting  to  the  violation  of  this  section  shall  be 
punished  by  fine  of  not  less  than  ten  thousand  dollars,  and  by  imprisonment  in  a 
county  or  city  jail  for  not  less  than  one  year.  (April  6,  1900,  94  v.  103;  April  15, 
1880,  77  v.  267;  April  27,  1872,  69  v.  150,  §  2;  S.  &  S.  218.) 
See   §  3691-13. 

§  3598.  HOW  HOME  COMPANIES  MAY  INVEST  ACCUMULATIONS.— A 
company  organized  under  the  laws  of  this  state  may  invest  its  accumulations  as  fol- 
lows, and  may  sell,  change,  or  re-invest  the  same,  or  any  part  thereof,  at  pleasure: 

1.  In  United  States,  state,  county,  or  city  bonds,  if  the  market  value  of  the 
bonds  at  the  date  of  purchase,  is  at  least  eighty  per  cent,  of  their  par  value. 

2.  In  bonds  and  mortgages  upon  unincumbered  real  estate,  the  market  value  of 
which  real  estate  is  at  least  double  the  amount  loaned  thereon,  at  the  date  of  the  in- 
vestment. If  the  amount  loaned  shall  exceed  one-half  the  value  of  the  land  mortgaged, 
exclusive  of  structures  thereon,  such  structures  shall  be  insured  in  an  authorized  fire 
insurance  company  in  an  amount  not  less  than  the  difference  between  one-half  the 
value  of  such  land,  exclusive  of  structures,  and  the  amount  loaned,  and  the  policy 
assigned  to  the  mortgagee;  and  the  value  of  such  real  estate  shall  be  determined  by 
a  valuation,  made  under  oath,  by  two  real  estate  owners,  residents  of  tho  county 
where  the  real  estate  is  located. 

3.  In  loans  upon  the  pledge  of  such  bonds  or  mortgages,  if  the  current  market 
value  of  the  bonds  or  mortgages  is  at  least  twenty-five  per  cent,  more  than  the  amount 
loaned  thereon. 

4.  In  loans  upon  its  own  policies,  not  exceeding  the  reserve  or  present  value 
thereof  computed  according  to  the  American  experience  table  of  mortality,  with 
interest  at  four  per  cent.,  the  same  being  the  amount  of  debts  of  life  insurance  com- 
panies by  reason  of  their  outstanding  policies  in  gross. 

This  section  shall  not  prohibit  any  company  from  accepting  any  other  assets  than 
herein  enumerated  in  payment  of  debts  due  the  company,  in  order  to  protect  its 
interests,  or  from  acquiring  real  estate  for  its  own  use,  or  by  foreclosure  in  accordance 
with  the  laws  of  the  state.  (March  5,  1902,  95  v.  39;  May  14,  1878,  75  v.  576, 
§   11;  S.  &  S.  220.) 


Title  of  property  acquired  in  an  unau- 
thorized manner. 

Where  property  which  a  corporation,  under 
certain  circumstances,  is  authorized  to  ac- 
quire, is  purchased  in  a  mode  or  for  a  pur- 
pose not  authorized,  the  title  of  the  corpora- 
tion to  the  property  cannot  be  defeated  by  a 
party,  who  is  a  stranger  to  the  agreement  by 
which  the  property  was  acquired,  and  who  is 
not  injured  bv  the  transfer. —  Ehrman  v.  Ins. 
Co.,  35  Oh.  St.  324   (1880). 


Loans    made    contrary   to    statute,   void. 

A  loan  made  in  contravention  of  subdhn- 
sion  4  of  this  section  cannot  be  enforced,  and 
all  agreements  connected  therewith  are  void. 
—  Hoover  v.  Life  Tns.  Co..  7  N.  P.  369;  s.  c, 
6  Dec.  432;  modified,  61  Oh.  St.  656  (1899). 

Substantial    compliance    sufficient.  t 

A  loan  made  on  a  promissory  note  and 
mortgage  instead  of  bond  and  mortgage  is  a 
substantial  compliance,  and  valid.  (Held,  as 
to  foreign  corporation.) — National  Bank  v. 
Ins.   Co.,  41   Oh.   St.    1    (1885). 

See   notes   under    §    3591. 


§  3599.  WHAT  REAL  ESTATE  THEY  MAY  ACQUIRE.—  No  company  organ- 
ized under  the  laws  of  this  state  shall  purchase,  hold,  or  convey  real  estate,  except 
for  the  purposes  and  in  the  manner  herein  set  forth,   to  wit: 

1.  Such  as  is  requisite  for  its  immediate  accommodation  in  the  transaction  of  its 
business;  or, 

2.  Such  as  has  been  mortgaged  to  it  in  good  faith,  by  way  of  security  for  loans 
previously  contracted,  or  for  money  due;  or, 


Life  I  nsi  rani  e  Comi 


Dividends,  Rep.. 


3.  Such  as  has  been  conveyed  to  it  in  satisfaction  of  deb- 
in  the  course  of  its  dealings;    or, 

4.  Such   as   it   has   purchased    at   sales    upon    Jud 

obtained  or  made  for  such  debts.     (April  27,  1872,  fj!)  v.   150,       12; 
See  note  to  Ehrman  v.    Ins.  Co.s   under   ^ 

§  3600.    WHEN  REAL  ESTATE  MUST  BE  SOLD.  —  All  BU(  1    i 
as  aforesaid,  and  which  is  not  necessary  for  the  accommodation  of  a  c<  i 
convenient  transaction  of  its  business,  shall  be  sold  and  'I  :   within  I 

after  the  company  acquires  title  to  the  same;    and  the  company  shall  not  hold 
real  estate  for  a  longer  period  than  herein  mentioned,  unless  it  procure  a  i 
from  the  superintendent  of  insurance  that  the  interests  of  the  company  will   suff'-r 
materially  by  a  forced  sale  of  such  real  estate,  in  which  event  the  time  for  the  sale 
may  be  extended  to  such  time  as  the  superintendent  shall   direct  in   the  certificate. 
(April  27,  1872,  69  v.  150,  §  13;    S.  &  S.  221.) 

§  3601.  CERTAIN  ACTIONS  AUTHORIZED.  —  Actions  may  be  maintained  by 
any  company  formed  under  the  laws  of  this  state,  against  any  of  its  members,  offi- 
cers, policyholders,  or  stockholders,  for  any  cause  relating  to  the  business  of 
company;  and  actions  may  be  prosecuted  and  maintained  by  any  member,  stock- 
holder, or  policyholder,  or  the  heirs  or  legal  representative  of  either,  against  the  com- 
pany, for  losses  which  accrue  on  any  risk,  if  payment  be  withheld  more  than  two 
months  after  the  losses  become  due.     (April  27,  1872,  69  v.  150,  §15;    S.  &  S.  221.) 

As  to   limitations   in   policy   as   to    tinie  [  C.    1"2    (1885);    United    I 


of  bringing  suit. 

See  Metropolitan  Ins.  Co.  v.  Gierl,  16  O.  C. 
C.   294,  affirmed  57   Oh.   St.   (171    (1898);    Pru 
dential   Ins.   Co.   v.   Howies,    19   0.   C.   C.    621 
(1900);  Corn  City  Ins.  Co.  v.  Schwan,  1  0.  C. 


Kukral,  7  0.1      i  1893    ;    Kirk   \ 

Valley  [na   Co.,  6  W.  I..  B.  20  I     1881 
11  W.  L.  B.  228     L884       Minerick  v.  Im 
1  Clev.  Rep.  134  .  3.  ■  -..  I  Clev.  R<  p.  ."7 
compare,  Vleyer  \ .  [i 


§  3602.  WHEN  DIVIDENDS  MAY  EE  PAID.  —  The  directors,  managers,  or 
officers  of  any  company  organized  under  the  laws  of  this  state  shall  not,  directly  or 
indirectly,  make  or  pay  any  dividend,  or  pay  any  interest,  bonus,  or  other  allowances 
in  lieu  of  dividend,  to  its  stockholders,  except  from  the  surplus  funds,  after  resei 
therefrom  an  amount  sufficient  to  re-insure  all  its  outstanding  risks  and  policies, 
estimating  the  value  thereof  by  the  table  known  as  the  American  experience  table, 
with  interest  at  four  per  cent,  per  annum.     (April  27,   1872,  69  v.   150,  §   16.) 

§  3603.  HOME  COMPANIES  MUST  MAKE  ANNUAL  REPORTS  TO  SUPER- 
INTENDENT. —  The  president  or  vice-president,  and  secretary  or  actuary,  or  ■ 
majority  of  the  directors,  of  each  company  organized  under  the  laws  of  this  state, 
shall,  annually,  on  the  first  day  of  January,  or  within  sixty  days  thereafter,  pre: 
under  oath,  and  deposit  in  the  office  of  the  superintendent  of  insurance,  a  statement 
showing  the  condition  of  the  company  on  the  thirty-first  day  of  December  then  next 
preceding,  exhibiting  the  following  facts  and  items,  in  the  following  form,  to  wit: 

1.  The  number  of  policies  issued  during  the  year. 

2.  The  amount  of  insurance  effected  thereby. 

3.  The  amount  of  premiums  received  during  the  year. 

4.  The  amount  of  interest,  and  all  other  receipts,  specifying  the  items. 

5.  The  amount  paid  to  policyholders  of  the  company  for  losses  during  the  year. 

6.  The   amount   of  all   other   expenditures   and   disbursements   of   the   company, 
specifying  such  items  as  the  superintendent  may  call  for. 

7.  Amount  of  losses  unpaid. 

8.  Whole  number  of  policies  in  force. 

9.  Amount  insured  thereby. 

10.  Amount  required  to  re-insure  all  policies  in  force,   estimating  the  same  by 

LAW    GOV.    PKIV.    COR." —  -'-!• 


370 


Private  Corporations  in  Ohio. 


Foreign  Companies,  §  3604. 


the  table  known  as  the  American  experience  table  of  mortality,  with  interest  at  four 
per  cent,  per  annum. 

11.  Amount  of  capital  stock,  specifying  amount  paid  and  unpaid. 

12.  Amount  cf  dividends  unpaid;    also  amount  of  all  other  liabilities. 

13.  A  detailed  statement  of  all  the  assets  of  the  company,  and  the  manner  of 
their  investment. 

14.  An  exhibit  of  the  policy  obligations  of  the  company,  which  shall  include,  in 
the  first  annual  statement,  a  schedule  showing  the  number,  date,  age,  when  insured, 
amount  insured,  term  of  policy,  and  term  of  premium,  of  all  policies  then  in  force, 
and  in  every  succeeding  annual  statement  a  schedule  of  the  foregoing  items  as  to  all 
policies  issued  during  the  year,  and  a  similar  schedule  as  to  policies  which  have 
ceased  to  be  in  force  during  the  year.     (April  9,  1873,  70  v.  118,  §  17;    S.  &  S.  221.) 


§  3604.  COMPANIES  ORGANIZED  BY  CONGRESS  OR  IN  OTHER  STATE 
MUST  PROCURE  LICENSE.  —  No  company  organized  by  act  of  congress,  or  under 
the  laws  of  any  other  state  of  the  United  States,  shall  transact  any  business  of  insur- 
ance in  this  state  until  it  procures  from  the  superintendent  of  insurance  a  certificate 
of  authority  so  to  do;  nor  shall  any  person  or  corporation,  directly  or  indirectly  act 
as  agent  in  this  state  for  any  such  company,  either  in  procuring  applications  for 
insurance,  taking  risks,  or  in  any  manner  transacting  the  business  cf  insurance, 
until  such  person  or  corporation  procures  from  the  superintendent  of  insurance  a 
license  so  to  do,  in  which  the  superintendent  shall  state  that  the  company  has  com- 
plied with  all  the  requirements  of  this  chapter  applicable  to  such  company,  and 
deposits  a  certified  copy  of  such  license  in  the  office  of  the  recorder  of  the  county  in 
which  the  office  or  place  of  business  of  such  agent  is  established;  nor  shall  any  such 
company  take  risks  or  transact  any  business  of  insurance  in  this  state,  unless  pos- 
sessed of  the  amount  of  actual  capital  required  of  similar  companies  organized  in  this 
state  under  the  provisions  of  this  chapter,  nor  unless  the  entire  capital  stock  of  the 
company  is  fully  paid  up,  and  invested  as  required  by  the  laws  of  the  state  where 
organized;  but  if  the  company  is  a  mutual  company,  actual  cash  assets  of  the  same 
amount  and  description,  invested  and  deposited  as  required  by  the  laws  of  the  state 
where  it  was  organized,  shall  be  accepted  in  lieu  of  capital  stock.  (May  15,  1878, 
75  v.  572,  §  18;    S.  &  S.  223.) 


See  §  3630e  and  §  3656,  and  notes  thereto. 
Applicable    to    incorporated    and    unin- 
corporated associations. 

Foreign  companies  and  associations,  whether 
incorporated  or  not,  are  required  to  procure  a 
license.  — ■  State  ex  rel.  Ackerman  et  al.,  51 
Oh.  St.  163  (1804). 

This  decision  was  based  on  the  theory  that 
the  association  was  attempting  corporate  acts 
and  hence  came  within  the  provisions  of  the 
statute.  On  the  question  as  to  discrimina- 
tions against  individuals  or  partnerships  of 
other  states  in  favor  of  resident  individuals  or 
partnerships.  —  See  Hoadley  et  al.  v.  Insurance 
Board,  37  Fla.  564  (1896);  Hoadley  v.  Puri- 
foy,  30  L.  R.  A.  (Al.)  351  (1805);  Fort  v. 
State.  23  L.  R.  A.  (Ga 
wealth  v.  Reinoehl,  25 
(1804). 

Insurance     business 

confined  to  corporations. 

Commonwealth    v.    Vrooman 
(1804). 
Failure  to  procure  license,  etc.;  does  not 

render  policy  void. 

The  failure  of  a  foreign  company  to  comply 
with    the    provisions    of    the    act   of   April    16, 


86   (1803)  ;   Common- 
L.  R.  A.    (Penn.)    247 

may     lawfully     be 

164    Pa.    306 


1867  (64  v.  102),  will  not  make  void  a  policy 
issued  by  such  company.  —  Union  Ins.  Co.  v. 
McMillen,  24"  Oh.  St.  67  (1873);  Ins.  Co.  v. 
Way,  62  N.  H.  622  (1883)  ;  Clark  v.  Middleton, 
19  Mo.  53  (1854);  Ins.  Co.  v.  Walsh,  18  Mo. 
229  (1853).  See  also  Columbia  Ins.  Co.  v. 
Kinvon,  37  N.  J.  L.  33  (1874):  Ins.  Co.  v. 
Brinkley  et  al.,  29  L.  R.  A.  (Ark.)  712  (1895). 

Same  subject;  will  not  excuse  payment 
of  premium. 

In  an  action  brought  against  the  company 
on  the  policy,  such  failure  will  not  excuse  the 
policy  holder  from  payment  of  premiums  or 
complying  with  other  conditions  and  terms 
of  the  policy.  —  Union  Ins.  Co.  v.  McMillen, 
24  Oh.  St.  67  (1873),  and  cases  under  preceding 
note. 

Same  subject;  company  cannot  sue  to 
recover  premiums  or  assessments  — 
neither  can  receiver  bring  such  ac- 
tion. 

Stewart  v.  Ins.  Co.,  38  N.  J.  L.  436  (1S76)  ; 
Lycoming  Ins.  Co.  v.  Wright,  55  Ver.  526 
(  iss:i)  ;  Rose  v.  Kimberly,  80  Wis.  545  (1895)  ; 
Seamans  v.  Zimmerman,  59  N.  W.  290  (la.) 
(1894);    Seamans    v.    Temple,    63    N.    W.   408 


Life  [nsuranci    Comi 


371 


Foreign  Companie 


(Mieh.)   (1895);  Barker  v.  Lamb,  (is  \.  \\ .  686 
d  (la.)    (1896). 

Same     subject;     assured     may    maintain 
.      action  against  company. 
'      Union  Ins.  Co.  v.  McMillen,  ^1  Ohio  St.  67 

(1873);  Phoenix  [ns.  Co.  v.  Pennsylvania  I    ■  . 

20  L.  R.  A.   (  Iml.  i   406   I  1893)  ;    Knighl    I    m 

plars'  Ins.  Co.  v.  Berry,  50  Fed.    L39    l  L892  l  ; 

Swan  v.  Ins.  Co.,  96   Pa.  :i7    (1880)  :    Ins.  Co. 

v.  Rust,  141  111.  85  i  1892)  ;  Pennypai 

Ins.  Co.,  80  la.  56  (1890). 

Company  can  recover  premiums  in  this 
state  on  property  located  in  foreign 
state,  thougli  not  permitted  to  do 
business  in  latter. 

Eureka  Ins.  Co.  v.  Parks,  1  (in.  Sup.  Ct. 
574  (1871):  Seamans  v.  Knapp,  89  Wis.  171 
(1895). 

Same  subject;  company  may  sue  on  bond 
or  mortgage. 

Ins.  Co.  v.  Sawyer,  44  Wis.  387  (1878); 
Hards  v.  Ins.  Co.,  8  Diss.  234   |  1878). 

Failure  to  procure  certificate;  no  de- 
fense to   action  on  agent's  bond. 

Failure  to  comply  with  regulations  en 
no  defense  to  an  action  broughl  againsl  .mi 
agent  of  such  company  ami  his  sureties  on  a 
bond  given  for  the  faithful  performance  of 
duties.  — Ins.  Co.  v.  Ellis,  :\2  Oh.  St.  388 
(1877). 

Same  subject;  will  not  invalidate  acts 
of  agent. 

The  acts  of  an  agent,  within  the  scope  of 
the  authority  conferred  upon  him.  arc  valid 
and  binding,  not  only  in  favor  of  third  per- 
sons, but  as  between  principal  and  agent,  not- 
withstanding the  failure  to  procure  am!  tile 
the  certificate  required.  —  Ins.  Co.  v.  Ellis,  32 
Oh.  St.  388   (1877). 

No  arbitrary  power  to  refuse  license. 

Where  a  foreign  company,  tendering  com- 
pliance with  our  laws,  applies  for  authority 
to  do  business  within  this  stale  the  superin- 
tendent of  insurance  has  no  mere  arbitrary 
discretion  to  refuse  such  admission.  —  State 
ex  rel.  v.  Moore,  42  Oh.  St.  101    (1884  I  . 


May    use    disori  i  ion. 
faith. 

Snperint 

-ion.  and   i'  i 
\  osted    w  it  h    di 

I     i\      mandnn 
Moor,..    12  nil.    -t.    LO 

Duration  of  lioea 

The    licene 

:  April  oi 
and   no   li 
Co.,  47  Ob.  St.  167,  i  . 

License  no  bar  to  quo  warnutOi 
License  merely  pi  ■ 

cl  ion  of  it  -  busim  - 
ousting    'In-    company    oi 

rel.    v.    [] 
I  1892  i  :  State  ex  r< 

it;:;  |  ism   . 

Exercise   of  unlawful    privileges.    t> 
by  quo  warranto. 
A  foreign  company,  exercising  in 
franchises  ami  privileges  without  authorit 
law.    may    !"■  ousted    therefrom    bj 
ranto.       State  ex  rel.  v.  Ins 
L67    (1890  .   rel.  \.   ! 

St.  440  (18 
Oh.  St.  163     I  - 

Granting  license  ministerial  act. 

[ssuing  of  1  i  < 
pany  is  a  ministei  ml  aid  not  a 
st  n,.    ,  -     rel.    v.    [n 
i  1892  i  :  State  i  \  rel.  v.  Cas 
538   (1888). 

Remedy    to    prevent    revocation    of    li- 
cense. 

Mandamus  "ill  not  li«-  to  pr< 
intendenl   from  revoking  the  I 
pany  to  do  business  in  t ; 
is  tii-  proper  reinedj 
.-at  <  )h.   St.   71  I 
rel.  v.  Reinmund,  45  Oh.  St.  214. 

Noncompliance      by      company:     a»»ured 
mav  sue  on  policy, 
[ns.  Co.  x.  McMillen,  2-1 
Clark  v.  Middleton,  19  M 


§   3605.     DEPOSIT   WITH   SUPERINTENDENT   OF   INSURANCE    OR    OTHER 
OFFICER,.  —  No  such  company  shall  transact  any  business  of  insurance  in  this 
unless  at  least  one  hundred  thousand  dollars  of  its  assets  are  invested  in  the  i 
paying  bonds  or  stocks  of  the  United  States,  or  of  this  state  or  of  any  municipality 
or  county  thereof,  or  the  interest  paying  state  bonds  or  stocks  of  some  otl 
the  United  States,  of  the  market  value  of  one  hundred  thousand  dollars  in  the  city  o 
New  York,  or  in  bonds  and  mortgages  on  unincumbered  real  estate  in  this 
the  state  under  the  laws  of  which  it  was  organized,  of  at  least  double  the 
amount  loaned  thereon,  and  such  bonds  and  mortgages  are  deposited  with  tl 
intendent  of  insurance  of  this  state,  or  the  chief  financial  or  other  ofLcer  of  the 
in   which   such   company    was   organized,    designated    by    the    laws    cf   such   state    to 


372  Private  Corporations  in  Ohio. 

Foreign  Companies,  §§  3606-3608. 

receive  the  same;  and  if  such  bonds  and  mortgages  are  deposited  with  the  superin- 
tendent cf  insurance  or  other  officer  of  another  state,  the  superintendent  of  insur- 
ance cf  this  state  shall  be  furnished  with  the  certificate  of  such  state  officer,  under  his 
hand  and  official  seal,  that  he,  as  such  officer,  holds  in  trust  and  on  deposit,  for  the 
benefit  of  the  policy-holders  of  such  company,  the  securities  above  mentioned,  giving 
the  items  of  such  securities,  and  stating  that  he  is  satisfied  such  securities  are  worth 
at  least  one  hundred  thousand  dollars.  (February  27,  1894,  91  v.  40;  May  15,  1878, 
75  v.  572,  §  18;    S.  &  S.  223.) 

§  3606.  MUST  FILE  COPY  OF  CHARTER,  AND  A  STATEMENT.  —  Such  com- 
pany shall  also  file  with  the  superintendent  a  certified  copy  of  its  charter,  or  deed  of 
settlement,  together  with  a  statement,  under  the  oath  of  the  president,  vice-president, 
or  other  chief  officer  or  manager,  and  the  secretary  of  such  company,  stating  the  name 
of  the  company,  the  place  where  it  is  located,  and  the  amount  of  its  capital,  with  a 
detailed  statement  of  all  the  facts  required  in  the  annual  statement  required  of  com- 
panies organized  under  this  chapter,  except  as  to  statement  required  by  item  four- 
teen, section  thirty-six  hundred  and  three,  which  statement  shall  be  filed  by  such 
company  only  when  required  by  the  superintendent  of  insurance  for  purposes  of 
actual  valuation,  as  provided  by  the  insurance  laws  of  this  state;  also,  a  copy  of  its 
last  annual  report,  if  any  was  made.     (May  15,  1878,  75  v.  572,  §  18.) 

Cited    in    State    v.    Hahn,    50    Oh.    St.    714     (1893). 

§  3607.  MUST  ALSO  FILE  A  WAIVER.  —  Any  such  co.npany  desiring  to  trans- 
act any  such  business  in  this  state  by  an  agent,  shall  file  with  the  superintendent  of 
insurance  a  written  instrument,  duly  signed  and  sealed,  authorizing  any  agent  of 
such  company  in  this  state  to  acknowledge  service  of  process  for  and  in  behalf  of  the 
company  in  this  state,  and  consenting  that  the  service  of  process,  mesne  or  final,  upon 
any  such  agent,  shall  be  taken  and  held  to  be  as  valid  as  if  served  upon  the  company 
according  to  the  laws  of  this  or  any  other  state  or  government,  and  waiving  all 
claims  or  right  of  eiror  by  reason  of  such  acknowledgment  of  service,  and  that  if  suit 
be  brought  against  it  after  it  ceases  to  do  business  in  this  state,  and  it  has  no  agent 
in  the  county  in  which  suit  is  brought  upon  whom  service  of  prooess  can  be  had,  as 
provided  in  section  thirtjr-six  hundred  and  seventeen,  service  upon  it  shall  be  had  by 
the  sheriff  mailing  a  copy  of  the  summons  or  other  process,  postage  prepaid,  addressed 
to  it  at  the  place  of  its  principal  office  located  in  the  state  where  it  was  organized, 
or,  if  it  is  a  foreign  insurance  company,  to  such  company  at  the  place  of  its  principal 
office  in  the  United  States,  at  least  thirty  days  prior  to  the  date  of  taking  judgment 
in  the  suit;  but  the  sheriff's  return  shall  show  the  time  and  manner  of  such  service. 
May  15,  1878,  75  v.  572,  §  18.) 


For  purpose  of  suit,  regarded  as  domes- 
tic corporations. 

Companies  doing  business  under  license  ob- 
tained become,  in  a  suit  brought  against  them 
in  this  state,  personally  amenable  to  the  juris- 


diction of  the  courts  of  this  state,  and  are  to 
be  treated,  for  purposes  of  suit,  as  corpora- 
tions of  this  state.  —  Ins.  Co.  v.  Best,  23  Oh. 

St.  105   (1872). 


§  3608.  MUST  FILE  ANNUAL  STATEMENT  AS  TO  TONTINE  COMPANIES. 
—  Every  such  company  doing  business  in  this  state  shall,  annually,  file  a  statement 
of  its  condition  and  affairs  in  the  office  of  the  superintendent  of  insurance,  and  in  the 
form  and  manner  required  of  similar  companies  organized  under  the  laws  of  this 
state;  provided,  that  in  such  statement  no  such  item  as  '•  all  other  expenditures,"  or 
"  incidentals,"  shall  be  allowed  or  recognized;  but  that  every  item  of  disbursement 
or  expenditure  shall  be  clearly  and  distinctly  stated  and  classified  when  required  by 
the  superintendent  of  insurance,  and  for  the  protection  of  the  interests  of  policy-holders 
in  this  state,  as  provided  by  the  laws  of  this  state,  and  any  such  company  issuing 
policies  on  tontine  or  semi-tontine  plan,  or  which  claims  to  be  mutual  as  to  its  profits 


Life  [nsi  r  \  rci    Cow  p  37; 


Foreign  Companies.        B609 


to  residents  of  this  state,  shall,  after  the  payment   of  the  flr.l   pre, 

not  more  than  sixty  days  and  not  less  than  ten  days  pi  loi  to  th. 

every  premium,   thereafter  in  writing  notify  every   such 

person  whose  life  is  insured  or  the  assignee  of  Bald  po 

notified  of  said  assignment,  and  the  address  of 

state,  of  the  time  of  payment  of  such  pr<  mium,  and    pro.  I 

notice  to  said  policy-holder  or  assignee  in  the  post-oifice  by 

postage  prepaid  to  the  last  address  as  given  hy  said  policy-holdei   i 

said  company  shall  be  conclusive  proof  of  the  serving  of  said 

forth  fully  in  said  notice  the  amount  of  dividend   belonging    to  said 

requested  by  the  policy-holder  if  the  same  be  a  participating  policy,  and  al 

of  the  tontine  or  semi-tontine  period  of  each  policy,  the  company 

shall  make  a  statement  to  the  policy-holder  of  all  the  dividends  and  pi 

to  said  policy,  and  from  what  sources  the  same  has  been  derived      (April    17     i 

88  v.  307;   April  27,  1872,  69  v.  150,  §  20;   S.  &  S.  223.) 


Cited    in    State    v.    Halm.    50    Oh.    St.    711  | 

(1893). 


Effect  of  failure  to  nivc  noti<  I  . 

Smith    v.    In-.  (  o.,    I    \\  .    I.     I 
44  Oh.  St.  156  i  I 

See  also  la-.  I  o.  \.  Pot 
(1878). 


§  3609.    RENEWAL  CERTIFICATES  OF  AUTHORITY.  —  If  such  annual 
ment  be  satisfactory  evidence  to  the  superintendent  of  insurance  of  the  solvency  and 
ability  of  the  company  to  meet  all  its  engagements  at  maturity,  and  that  the  deposit 
is  maintained  as  above  required  and  provided,  he  shall  issue  renewal  certificat< 
authority  to  the  agents  of  the  company,  certified  copies  of  which  shall  be  filed  i:. 
recorder's   office   of   the  county  wherein    the   agency   is   located,    and    which   renewal 
certificates  shall  be  the  authority  of  such  agents  to  issue  new  policies  in  this  state  for 
the  ensuing  year.     (April  27,  1872,  69  v.  150,  §  21;    S.  &  S.  223.) 

See  notes  to  §  3G14. 

§  3610.  FOREIGN  COMPANIES  MUST  MAKE  DEPOSIT.  AND  APPOINT 
AGENT  FOR  SERVICE.  —  No  person  shall  act  in  this  state,  as  agent  or  other-, 
in  receiving  or  procuring  applications  for  life  insurance,  nor  in  any  manner  aid  in 
transacting  the  business  of  any  company,  partnership,  or  association,  incorpc: 
by  or  organized  under  the  laws  of  any  foreign  government,  until  such  company.  | 
nership,  or  association  deposits  with  the  superintendent  of  insurance,  for  the  benefit 
of  the  policyholders  of  the  company,  partnership,  or  association,  who  are  citizens  or 
residents  of  the  United  States,  securities  to  the  amount  of  one  hundred  thousand  dol- 
lars, of  the  kind  required  for  similar  companies  of  this  state,  executes  a  waiver  as 
provided  in  section  thirty-six  hundred  and  seven,  and  appoints  an  agent  or  attorney, 
in  each  county  in  this  state  in  which  the  company  establishes  an  agency,  on  whom 
process  of  law  can  be  served,  and  files  with  the  superintendent  of  insurance  a  duly 
certified  copy  of  its  charter,  or  deed  of  settlement,  and  also  a  duplicate  original  copy 
of  the  letter  or  power  of  attorney  of  such  company,  partnership,  or  association, 
appointing  the  attorney  thereof,  which  appointment  shall  continue  until  another 
attorney  is  substituted.     (April  27.   1872,  69  v.   150.  §  22;    S.  6c  S.  222.) 

See  notes  to  §  3G14. 

§  3611.  ANNUAL  AND  OTHER  STATEMENT  TO  BE  FILED.  —  Such  company, 
partnership,  or  association  shall  also  file  a  statement  of  its  condition  and  affairs  in 
the  office  of  the  superintendent  of  insurance,  in  the  form  and  manner  required  for  the 
annual  statements  of  similar  companies  organized  under  the  laws  of  this  state, 
shall,  annually,  on  the  first  da;'  of  January,  or  within  sixty  days  thereafter,  file  with 
the  superintendent  of  insurance  a  statement  of  all  its  affairs,  in  the  manner  and  form 


374 


Private  Corporations  in  Ohio. 


Foreign  Companies,  SS  3612-3615. 


required  of  similar  companies  of  this  state,  except  as  to  the  requirements  of  schedule 
of  item  fourteen,  section  thirty-six  hundred  and  three,  which  schedule  shall  be  filed 
only  when  required  by  the  superintendent  for  purposes  of  actual  valuation,  as  pro- 
vided by  the  laws  of  this  state.     (April  27,   1872,  69  v.   150,  §  24;  S.  &  S.  224.) 

§  3612.  SUPPLEMENTARY  STATEMENTS.—  Such  annual  statement  shall  be 
accompanied  by  a  supplementary  statement,  duly  verified  by  the  attorney  or  general 
agent  of  the  company,  partnership,  or  association  in  this  state,  giving  a  detailed 
description  of  the  policies  issued,  and  those  which  have  ceased  to  be  in  force,  during 
the  year,  the  amount  of  premiums  received,  and  claims  and  taxes  paid  in  this  state 
and  the  United  States,  for  the  year  ending  on  the  thirty-first  day  of  December;  and 
the  supplementary  statement  shall  also  contain  a  description  of  the  investments  of 
the  company,  partnership,  or  association  in  this  country,  and  such  other  information 
as  may  be  required  by  the  superintendent  of  insurance.  (April  27,  1872,  69  v.  150, 
§§  25,  26;  S.  &  S.  224.) 

§  3613.  RENEWAL  CERTIFICATES  OF  AUTHORITY.— If  the  annual  state- 
ment be  satisfactory  evidence  to  the  superintendent  of  the  solvency  and  ability  of  the 
company,  partnership,  or  association  to  meet  all  its  engagements  at  maturity,  he  shall 
issue  renewal  certificates  of  authority  to  the  agents  of  the  company,  partnership,  or 
association,  certified  copies  of  which  shall  be  filed  by  such  agents  in  the  recorder's 
office  of  the  county  where  the  agency  is  located,  and  which  renewal  certificates  shall 
be  the  authority  of  such  agents  to  issue  new  policies  in  this  state  for  the  ensuing 
year.     (April  27,   1872,  69  v.   150,   §   26;  S.   &  S.  224.) 

§  3614.  CERTIFICATES  OF  AUTHORITY  TO  ACT  AS  AGENT.— No  person, 
company,  or  corporation  shall,  directly  or  indirectly,  act  as  agent  for  any  such  com- 
pany, partnership,  or  association,  either  in  procuring  applications  for  insurance,  tak- 
ing risks,  or  in  any  manner  aiding  in  the  transaction  of  the  business  of  life  insurance 
in°this  state,  until  it  procures  from  the  superintendent  a  certificate  of  authority, 
which  shall  be  renewable  annually,  stating  that  the  requirements  of  this  chapter  as 
to  such  company,  partnership  or  association  have  been  complied  with,  and  setting 
forth  the  name  of  the  attorney  for  such  company,  partnership,  or  association  a  certi- 
fied copy  of  which  certificate  shall  be  filed  in  the  recorder's  office  of  the  county  where 
the  agency  is  to  be  established,  and  which  shall  be  the  authority  of  such  company, 
partnership,  or  association,  and  its  agent,  to  do  business  in  this  state.  (April  27, 
1872,  69  v.  150,  §  27;  S.  &  S.  223.) 


Agent's  duty  to  procure  certificate. 

A  personal  duty  is  imposed  on  the  agent  to 
procure  such  certificate  and  file  it  with  the 
recorder,  and  a  violation  of  this  duty  subjects 
him  to  a  penalty.— Ins.  Co.  v.  Ellis,  32  Oh. 
St.   388    (1877). 

Regulations  for  benefit  of  policy  hold- 
ers. 

Such  regulations  are  for  the  benefit  of  pol- 
icy holders  and  others  doing  business  with  the 
companv.— Ins.  Co.  v.  Ellis,  32  Oh.  St.  388 
(1877). 

Agent's    acts    binding,    without    certifi- 
cate. 

The  acts  of  an  agent,  within  the  scope  of 
the  authority  conferred  upon  him  by  the  com- 


pany, are  valid  and  binding,  not  only  in  favor 
of  third  persons,  but  as  between  principal  and 
agent,  notwithstanding  his  failure  to  procure 
and  file  such  certificate. —  Ins.  Co.  v.  Ellis, 
32  Oh.  St.  388    (1877). 

Failure    to    procure    certificate,    no    de- 
fense in  favor   of   sureties. 

In  an  action  against  such  agent  and  his 
sureties  on  a  bond  given  for  the  faithful  per- 
formance of  his  duties,  his  failure  to  comply 
with  this  section  is  no  defense  in  favor  of 
such  sureties  — Ins.  Co.  v.  Ellis,  32  Oh.  St. 
388    (1877). 

Authority   of   agents. 

See  Kehm  v.  German  Mutual  Ins.  Co.,  8  N. 
P.    542    (1901). 


§  3615.  PENALTIES  FOR  FAILURE  TO  MAKE  STATEMENTS.— If  any  com- 
pany, partnership,  or  association,  organized  without  this  state,  neglect  or  refuse  to 
make  such  annual  statements,  all  persons  acting  in  this  state  as  its  agents,  or  other- 
wise, in  transacting  the  business  of  insurance,  shall  be  subject  to  the  penalties  pro- 


Life  Insura   c]    i  375 


Foreign  Compani< 


vided  by  law  in  case  of  the  failure  of  an  insurance  com;  mised  Ql 

of  this  state  to  make  an  annual  statement.     (April  27,    L8"i 

225.) 

§  3616.    DURATION  OF  LICENSES.  —  All  Ucensei  |  ranted  by  th< 
ent  of  insurance  in  pursuance  of  this  chapter  shall  continue 

or  revoked,  until  the  first  day  of  April  of  the  year  next  gj  .   sue. 

(April  27,  1872,  69  v.  150,  §  19.) 

Applied  in  Stale  ex  rel.  \.  Ins.  Co.,   17  Oh.  St.  107,  178 

§   3617.     WHEN   FOREIGN   COMPANIES    MUST    APPOINT   AGENTS   TO 
CEIVE  SERVICE.  —  If  any  company,   partnership,   or  associat  ion. 
the  laws  of  any  other  state  or  government,  cease  to  do  business  in  this  state 
to  law,  it  shall  appoint,  in  the  manner  herein  provided  for,  in  every  county 
an  agency  existed  at  the  date  of  such  discontinuance,  one  or  more  agent  pur- 

pose of  receiving  service  cf  process  in  all  actions  upon  policies  of  insurance  issu< 
the  citizens  of  this  state  while  it  was  lawfully  transacting  the  business 
in  this  state,  and  service  of  process  upon  such  agents,  in  such  actions,  shall  be  I 
to  be  as  valid  as  actual  service  upon  the  company,  partnership,  or  association;    and  In 
every  case  where  no  such  agent  is  appointed,  the  agent  last  designated  and  ;•■ 
the  company,  partnership,  or  association  shall  be  deemed  and  taken  to  be  duly  author- 
ized by  it  to  receive  service  of  process  as  aforesaid;    but  the  officer  who  serves  such 
process  shall  also  send  a  copy  of  the  process  served  on  the  agent,   by  mail,   to 
address  of  such  company,  partnership,  or  association,  at  the  place  of  its  principal  o 
home  office  at  the  time  it  ceased  to  do  business  in  this  state,  and  the  return  of  such 
officer  upon  such  process  shall  distinctly  show  that  such  copy  was  mailed  as  al 
said  at  least  thirty  days  before  any  judgment  shall  be  rendered  in  such  action.     (April 
27,  1872,  69  v.  150,  §  19.) 

§  3618.    WHO  ARE  AGENTS  TO  RECEIVE  SERVICE.  —  If  any  such  company, 
partnership,  or  association  cease  to  transact  business  in  this  state  according  tfl 
laws  thereof,  the  agents  last  designated,  or  acting  as  such  for  it.  shall  be  deemed  h 
continue  agents  for  it,  for  the  purpose  of  serving  process,  and  for  commencing  action 
upon  any  policy  or  liability  issued  or  contracted  while  it  transacted  business  in  t! 
state;    and  service  of  such  process  upon  any  such  agent,  for  the  causes  aforesaid. 
be  deemed  a  valid  service  upon  the  company,  partnership,  or  association.     (April  27. 
1872,  69  v.  150,  §  23;    S.  &  S.  223.) 

8  3619.  COMPANIES  MAY  CHANGE  SECURITIES,  AND  COLLECT  INTER- 
EST —  Nothing  in  this  chapter  contained  shall  be  construed  to  prevent  the  com] 
partnership,  or  association  from  collecting  the  interest  on  any  securities  deposited  b 
it  so  Ion-  as  it  continues  solvent,  and  complies  with  all  the  provisions  of  this  chapter 
applicable  to  it,  nor  from  exchanging  them  for  other  securities  of  equal  value,  and  of 
the  kind  hereinbefore  named,  with  the  officers  having  them  in  trust  as  aforesaxd 
(May  15,  1878,  75  v.  572,  §  18.) 

8   3620      AUTHORITY   TO    BE   WITHDRAWN    IN   CERTAIN    CASE.  -  I 
company,  partnership,  or  association  organized  without  the  limits  of  this  state,  and 
doing  business  within  this  state,  make  an  application  for  a  change  of  venue,  or 
remove  any  suit  or  action  to  which  it  is  a  party,  heretofore  or  hereafter  commenced  I 
'  any  court  of  this  state,  to  the  United  States  district  or  circuit  court,  or  to  any  federa. 
court    the  superintendent  of  insurance  shall  forthwith  revoke  and  recall  the  licei 
or  authority  to  such  company,  partnership,  or  association  to  do  or  transact  business 
within  this  state;    and  no  renewal  or  authority  shall  be  granted  to  such   company 
partnership,  or  association  for  three  years  after  such  revocation    and  it  shall  there- 
after   be   prohibited   from   transacting   any   business   in   this   state   unfcl   again   duly 
licensed  and  authorized.     (May  15,  1878,  75  v.  572.  §  18.) 

LAW  GOV.   PRIV.   COR. —  -3- 


376 


Private  Corporations  in  Ohio. 


Copies  of  Policies,  §§  3621-3623. 


A  former  statute  compelled  all  foreign  com- 
panies, as  a  condition  precedent  to  doing  busi- 
ness in  this  state,  to  waive  all  claim  to  remov- 
ing causes  against  them  to  the  United  States 
courts.  This  statute  was  held  constitutional 
in  Ins.  Co.  v.  Best,  23  Oh.  St.  105  (1872),  but 
was  declared  invalid  in  Railway  Assurance 
Co.  v.  Pierce,  27  Oh.  St.  155  (1875),  on.  the 
authority  of  Home  Ins.  Co.  v.  Morse,  20  Wall. 
445  (1875).  See  Rowland  v.  Ins.  Co.,  2  W. 
L.  B.  57. 

Section   constitutional. 

Constitution  of  United  States  secures  to 
citizens  of  another  state  than  that  in  which 
suit  is  brought  an  absolute  right  to  remove 
their  cases  to  the  federal  court.     The  statute 


obstructing  such  right  is  illegal  and  void. 
Agreement  of  company  filed  in  pursuance  to 
such  statute  is  void,  but  revocation  of  license 
is  valid,  as  state  may  make  such  conditions  as 
it  sees  fit.  —  Ins.  Co.  v.  Morse,  20  Wall.  445 
(1875). 

Same  subject. 

State  has  a  right  to  impose  conditions  not 
in  conflict  with  constitution  of  United  States 
to  the  transaction  of  business  within  its  ter- 
ritory by  a  foreign  insurance  company,  or, 
having  granted  a  license,  to  revoke  it,  with  or 
without  cause.  The  right  to  exclude  existing,, 
the  means  by  which  exclusion  is  caused  is  not 
the  subject  of  judicial  inquiry.  —  Doyle  v.  Ins. 
Co.,  94  U.  S.  535  (1870). 


§    3621.     POLICYHOLDERS    ENTITLED    TO    COPIES    OF    APPLICATIONS.  — 

Every  person  holding  a  policy  of  insurance  issued  by  any  company  on  the  life  of  any 
person  shall  be  entitled  to  be  furnished  by  such  company  with  a  copy  of  any  applica- 
tion or  document,  either  written  or  printed,  or  both,  held  by  such  company,  upon 
which  such  policy  was  issued,  or  which  may  affect  the  validity  or  (of)  the  same;  and 
the  company,  upon  demand  made  for  such  copy,  by  the  holder  of  such  policy,  or  by 
any  person  upon  whose  life  such  policy  was  so  issued,  shall  make,  and  forthwith  fur- 
nish to  such  person,  a  certified  copy  of  all  such  applications  or  friends'  certificates, 
under  the  hand  of  the  president,  secretary,  or  other  proper  officer  of  the  company,  and 
under  its  seal.     (May  5,  1877,  74  v.  181,  §§  1,  3.) 


Copy  must  be  delivered  during  lifetime 
of  assured. 

Where  it  is  provided  that  the  answers  made 
to  a  medical  examiner  by  the  assured  arc  to 
become  a  part  of  the  policy,  copies  of  such 
answers  must  be  delivered  to  the  assured  dur- 


ing his  lifetime,  and  failing  so  to  do,  the 
company,  in  an  action  on  the  policy,  is 
estopped  from  denying  the  truth  of  any  of  the 
answers.  —  Dickmeier,  Admr.,  v.  Ins.  Co.,  4 
N.  P.  13  (1896);  s.  c,  6  Dec.  161.  See 
§§  3622,  3623,  3624,  3625,  and  notes  thereto. 


§  3622.  EFFECT  OF  FAILURE  TO  DELIVER  COPIES.  —  If  such  company  neg- 
lect or  fail  for  thirty  days  from  the  time  of  such  demand  to  furnish  to  such  person  a 
copy  of  all  such  papers  as  are  mentioned  in  the  preceding  section,  and  as  provided 
therein,  it  shall  thereafter  be  forever  barred  from  setting  up,  by  way  of  defense  to  any 
suit  on  such  policy  of  insurance,  any  error  or  incorrectness,  or  fraud  or  misrepresenta- 
tion of  the  person  making  the  same,  or  any  mistake  therein  whatever;  and  such  appli- 
cation or  other  paper  or  document  shall  thereafter  be  taken  and  held,  so  far  as  the 
same  may  affect  any  claim  under  such  policy,  or  any  fund  secured  thereby,  to  be  in 
all  respects  true  and  correct.     (May  5,  1877,  74  v.  181,  §  2.) 

§  3623.  COPIES  OF  APPLICATION  TO  ACCOMPANY  POLICIES  ISSUED.  — 
Every  company  doing  business  in  this  state  shall  return  with,  and  as  part  of  any 
policy  issued  by  it,  to  any  person  taking  such  policy,  a  full  and  complete  copy  of  each 
application  or  other  document  held  by  it  which  is  intended  in  any  manner  to  affect 
the  force  or  validity  of  such  policy,  and  any  company  which  neglects  so  to  do  shall, 
so  long  as  it  is  in  default  for  such  copy,  be  estopped  from  denying  the  truth  of  any 
such  application  or  other  document;  and  in  case  such  company  neglect,  for  thirty 
days  after  demand  made  therefor,  to  furnish  such  copies,  it  shall  be  forever  barred 
from  setting  up,  as  a  defense  to  any  suit  on  such  policy,  any  incorrectness  or  want 
of  truth  of  such  application  or  other  document.     (May  5,  1877,  74  v.  181,  §  3.) 


See  notes  under  §  3625. 

Application     filled     up     by     agent,     not 
binding    on    assured. 

Where  answers  in  the  application  are  filled 


up  by  the  agent  from  his  own  knowledge,  the 
fact  that  a  copy  of  the  application  is  attached 
to  the  policy  will  not  bind  the  assured  as  to 
statements  thus  made.  —  Donnelly  v.  Ins.  Co., 
70  la.  693  (1S86). 


I -i  i  i.    I.\  .si  k 


377 


Applications,  §S  3624  3625. 


§  3624.    APPLICATIONS,  ETC.,  IN  CIPHER  VOID.  -  No  OOmjHU 
ness  in  this  state  shall  take  any  application,  medical   c«tU 
for  insurance  upon  the  life  of  any  person,  in  cipher,  or  by 
than  ordnary  written  or  printed  language;    and  any   such   application 
tificate,  or  other  document  taken  in  violation  of  this  lection  thai] 
and  of  no  effect  as  against  any  person  claim  i> 
thereon.     (May  5,  1877,  74  v.  181,  §  4.) 

1  §  3625.    WHEN  A  FALSE  ANSWER  IS  MATERIAL.  —  No  answer  to  any  . 

i  rogatory  made  by  an  applicant,  in  his  or  her  application  for  a  po] 
,  right  to  recover  upon  any  policy  issued  upon  such  application,  or  be  used  la 
J  upon  any  trial  to  recover  upon  such  policy,  unless  it  be  clearly   proved    tl 
'answer  is  wilfully  false  and  was  fraudulently  made,  that  it  is  material,  and  In  . 
the  company  to  issue  the  policy,  and  that  but  for  such  answer  the  policy  would  not 
have  been  issued;   and,  moreover,  that  the  agent  or  company  had  no  knowledge  of  the 
falsity  or  fraud  of  such  answer.     (May  15,  1878,  75  v.  572,  <   18.) 

Is   constitutional. 

This,  provision  is  constitutional  and  not  in 
conflict  with  the  fourteenth  amendmenl  of  the 
federal  constitution. —  Ins.  Co.  v.  Block  el  al.. 
12  C.  C.  224.  233  (1893)  ;  s.  c,  (i  C.  D.  166; 
Ins.  Co.  v.  Brobst,  56  Oh.  St.  728  (1897); 
Ins.  Co.  v.  Warren,  59  Oh.  St.  53   (1898). 


Soliciting  agent  is  agent  of  company. 

In  filling  up  the  application  for  a  policy, 
the  soliciting  agent  is  the  agenl  id'  the  com- 
pany and  not  the  assured.  —  Ins.  Co.  v.  Wil- 
liams, 39  Oh.  St.  584    (1883). 

When  policy  never  attaches. 

Where  statements  are  made  i'i  the  applica- 
tion, which  is  made  part  of  the  policy,  are 
untrue,  but  are  made  without  fraud  and 
under  misapprehension,  and  the  policy  by  it- 
terms  is  thereby  made  void,  the  contract  of 
insurance  never  attached  and  the  assured  may 
recover  premiums  paid.  —  Ins.  Co.  v.  Pyle,  4! 
Oh.  St.  20   (1886). 

Decided  prior  to  enactment  of  this  section. 
—  See  Ins.  Co.  v.  Warren,  59  Oh.  St.  53,  for 
effect  of  this  section,  and  also  note  to  Ins.  Co. 
v.  Howie,  infra. 

Section  does  not  apply  to  conditions  in 
policy. 

Section   applies    to   false   answers   to    inter- 
rogatories  in   application   only,   and    does    n 
apply  to  conditions  in  the  policy  itself.  —  Ins. 
Co.  v.  Howie,  62  Oh.  St.  204   (1900). 

Assured  must  be  furnished  with  copy. 

Application  not  admissible  as  evidence  until 
it  is  shown  that  assured  has  been  furnishe  1 
with  copv  of  same.  —  Andrews.  Admr..  v.  In-. 
Co.,  7  N.'P.  322  (1897)  ;  s.  c  7  Dee.  307. 

Application  forged  by  agent;  no  defense 
to  recovery. 

An  action  on  a  policy  cannot  be  defeated  by 
the  company  showing  that  it-  agent,  taking 
the  genuine  application,  imposed  upon  the 
company  a  spurious  application,  which  the 
company  believed  to  be  genuine.  —  Ins.  Co.  v. 
Eshelman,  30  Oh.  St.  648    (1876). 


Same  subject;   company  cannot   remind. 

I  n  sueh  a  case  t  he  comp  i  n; 
its  eoni  racl  and  cancel  i  hi   policj  bj 
the  executors  of  the  deci  a  si  d  polii  j   I  ol 
premium    received,   with    i 
t  he  fraud  was  d  isco^  ered.       1 ns    •  ■•.-.     . 
man.  30  Oh.  St.  tils   ( 187l 

False  representations  of  agent;  assm.  d 
may  rescind. 

Where  a  person  has  been  induced  I 
policy    by    t  he    fraudulent    r<  p 
the  agenl    of  the  company,   th< 
have  the  policy  declared  \ ■  ■  i ■  I  and  re 
the  premiums  pa  id.       [ns.  Co.  v.  Wrig 
Oh.  St.  533    [1878    ;    Martin  * 
(  ;.  Tmii.  i    3   W.    I..    B.  646      1-77 
Co.  v.  Pottker,  33  Oh.  St.  159     L878    , 

Collusion    between    agent    and    assm.d: 
no  defense  to  recovery. 
The    com] 
answers  are  known  to  its 

at   the  agi  nt   and  ass 
a.  —  Prudent  ial 
c.  C.  02  .  1897)  :   s.  c,  BCD    i 

Interest    of    beneficiary    in    return    pre- 
miums. 
In  case  of  rescission  by  I 

ficiariea   of   the   policy,    ii 
i  he  assur<  d,  an 

]:m  i  it  s.        Marl  in  v.  In-.. 

646      1-77    . 

■What    is    meant    by    "  prood    health  "    or 
"  cound  health"  111   application. 
Ohio    Mutual    In-.   Co.    v.    I> 

1  in 

What  constitutes  a  del 

To  COnsl  it  lite  a   del". 

of  false  answei  - 

i ion.    it     must     be    clearl 

answers  to  such  questions  were  willfullj 

and   were   fraudulently    n 

were    material    and    indn 


378 


Private  Corporations  in  Ohio. 


Beneficiaries,  Claims  of  Creditors,  SS  3626-3628. 


issue  the  policy,  and  that  but  for  such  an- 
swers the  policy  would  not  have  been  issued, 
and  that  neither  the  company  nor  it-<  agents 
had  knowledge  of  the  falsity  or  fraud  of  such 
answers. —  Ins.  Co.  v.  Warren.  58  Oh.  St.  45 
(1898)i  Ins.  Co.  v.  Howie.  02  Oh.  St.  204 
(1900). 

See  Northwestern,  etc..  Ins.  Co.  v.  Eislev, 
22  O.  C.  C.  1(50  (1901). 

Section  commented  upon  and  compared  with 
§  3643,  relating  to  fire  insurance. —  Ins.  Co. 
v.  Webster.  7  C.  C.  oil:  s.  c,  4  C.  D.  704; 
affirmed.  53  Oh.  St.  558  (1895). 

Construction  of  application. 

It  is  policy  of  the  law  to  construe  certifi- 
cates of  health  furnished  to  a  life  insurance 
company    favorably    to    the    applicant. —  Ohio 


Mutual  Ins.  Co.  v.  Draddv.  8  X.  I>.  ISO  (1900). 
See  notes  to  §§  3621  and  3626. 

No   application  to  fraternal  beneficiary 
associations. 

This   section  does   not   apply  to  associations 
organized  under  §   3631-11. 
Grand  Lodge,  etc.,  v.  Bunkers,  23  O.  C.  C. 

-187    (1902). 

Burden  of  proof. 

North  American   Ins.   Co.   v.   Sickles,  23  O. 
C.   C.   .394    (1902). 

Section   fixes    liability   notwithstanding 
terms  of  policy. 

North   American   Ins.   Co,    v.    Sickles,   23   O. 
C.  C.  594    (1902). 


§  3626.  WHEN  COMPANIES  ESTOPPED  FROM  CERTAIN  DEFENSES.— All 
companies,  after  having  received  three  annual  premiums  on  any  policy  issued  on  the 
life  of  any  person  in  this  state,  are  estopped  from  defending,  upon  any  other  ground 
than  fraud,  against  any  claim  arising  upon  such  policy  by  reason  of  any  errors,  omis- 
sions, or  misstatements  of  the  assured  in  any  application  made  by  such  assured  on 
which  the  policy  was  issued,  except  as  to  age.     (69  v.   150,  S  32.) 


Constitutional. 

Is  constitutional  and  does  not  violate  the 
fourteenth  amendment  of  the  constitution  of 
the  United  States.—  Ins.  Co.  v.  Block  et  al., 
12  C.  C.  224.  234   (1S93). 

Applies    to   policy    in   foreign    company. 

In  an  action  by  the  beneficiaries  under  the 
policy,  this  provision  will  be  applied  notwith- 
standing that  the  policy  stipulates  that  it 
shall  be  regarded  as  made  under  the  laws  of 
the  state  where  the  company  resides. —  Ins. 
Co.  v.  Block  et  al.,  12  C.  C.  224  (1893);  s.  c, 
6  C.    D.    lliti. 

Cannot  be   evaded  by  contract. 

The  provision  was  enacted  on  grounds  of 
public  policy,  and  cannot  be  evaded  by  any 
agreement  between  the  insured  and  the  com- 
pany— Ins.  Co.  v.  Block  et  al..  12  C.  C.  224 
(1S93);   s.  c,  6  C.  D.  166. 

New  York   company's   policy   subject   to 
New  York  law. 

Policies  issued  and  delivered  by  a  New  York 
company  in   another  state  are   subject  to  the 


terms  of  X.  Y.  Laws  1802.  chapter  690.  section 
92.  providing  that  "  no  life  insurance  company 
doing  business  in  this  state  shall  declare  a 
policy  forfeited  without  having  given  pre- 
scribed notice." —  Ins.  Co.  v.  Dingier,  100 
Fed.    408    (1900). 

Suicide  as  defense. 

Does  not  preclude  the  defense  that  assured 
committed  suicide. — ■  Stark  v.  Ins.  Co..  24  W. 
L.  B.  416  (TS90);  Ins.  Co.  v.  Maguire,  19  C. 
C.  502  (1000):  Pagenhard  v.  Ins.  Co.,  4  X.  P. 
169    (1897). 

Premiums    on     policy    fraudulently    is- 
sued. 

Company  is  not  liable  for  premiums  paid 
upon  a  policy  wrongfully  issued  by  one  of  its 
agents,  without  knowledge  of  the  insured  and 
under  false  representations  of  the  agent. — 
Brokamp  v.  Ins.  Co..  16  C.  C.  630  (1S98); 
s.  c.  9  C.  D.  412. 

See  Shaddinger  v.  Ins.  Co..  30  W.  L.  B.  337 
(1893):  Lowe"  v.  Ins.  Co..  41  Oh.  St.  273 
i  iss-h  :  also  notes  to  §§  3621  and  3625. 


§  3627.  THIS  CHAPTER  APPLIES  TO  COMPANIES  HERETOFORE  ORGAN- 
IZED.—  All  companies  organized  under  any  law  of  this  state  shall  continue  corpora- 
tions for  the  purpose  for  which  they  were  chartered,  but  subject  to  all  the  provisions, 
requirements,  and  penalties  imposed  on  companies  organized  under  this  chapter,  and 
-entitled  to  all  the  benefits  and  privileges  of  this  chapter.  (April  27,  1872,  69  v. 
150,   §  29.) 

Cited  in  Ins.  Co.  v.  Webster  et  al..  7   C.  C.  511.  535   (1893);   s.  c,  4  C.  D.  704. 

§   3628.     HUSBAND  MAY  INSURE  FOR  BENEFIT  OF  WIFE  AND  CHILDREN. 

— Any  person  may  effect  an  insurance  on  his  life,  for  any  definite  period  of  time,  or 
for  the  term  of  his  natural  life,  to  inure  to  the  sole  benefit  of  his  widow  and  children, 
or  of  either,  as  he  may  cause  to  be  appointed  and  provided  in  the  policy; 

INSURANCE  EXEMPT   FROM  CLAIMS   OF   CREDITOR.— and  the   sum  or  net 
amount  of  insurance  becoming  due  and  payable  by  the  terms  of  insurance,  shall  be 


Life  i  . 


379 


Beneficiaries,  Clain 


payable  to  his  widow,  or  to  his  children,  tor  their  OWl 
exempt  from  all  claims  by  the  representatives  and  Ctf 

PREMIUMS  PAID  IN  FRAUD  INURES  TO  CBEDITOB 
ject  to  the  statute  of  limitations,  the  amount  of  any  pn 
in  fraud  of  creditors  with  interest  thereon,  shall  inure  to  theil 
ceeds  of  the  policy; 

WHEN    COMPANY    LIABLE    TO    CREDITOR.— bin 
policy  shall  be  discharged  of  all  liability  thereon  1 
ance  with  its  terms,  unless,  before  such  payment  notice  shall    I 
by  a  creditor  specifying  the  amount  of  his  claim  and  the  premium  i  which   : 
have  been  so  fraudulently  paid.     (April   19,   1898,  93  v.    L30;   Febrnal 
v.  53,  §  1;  S.  &  C.  737.) 

This  section  formerly  limited  the  amounl  of 
premiums  to  be  annually  paid  for  such  exempl 
insurance  to  one  hundred  and  fifty  dollars; 
and  in  case  of  excess  there  should  be  paid  i" 
the  beneficiaries  named  in  the  policy  such  por- 
tion of  the  insurance  as  one  hundred  and  fifty 
dollars  will  hear  to  the  whole  annual  pre- 
mium, and  the  residue  to  the  representatives 
of  the  deceased.  It  will  be  noted  tliat  there  i- 
now  no  limitation  to  the  amount  of  premium 
which  the  insured  may  expend,  and  that  the 
creditors  can  only  reach  the  amount  of  any 
premiums  and  interest  on  the  same  which 
have  been  paid  in  fraud  of  their  rights,  ami 
subject  to  the  statute  of  limitations.  In  this 
respect  §§  3628  and  3629  are  now  alike. 

"When  a  wife  regarded  feme  sole. 

When  a  husband,  acting  as  agent  for  his 
wife,  takes  out  in  her  name,  ami  for  her  sole 
use,  a  policy  on  his  life,  the  wife  as  to  such 
policv  must  be  regarded  as  a  feme  sole.  - 
Jacob  v.  Ins.  Co..  1  Tin.  Sup.  Ct.  519  (1871); 
Ins.  Co.  v.  Applegate,  7  Oh.  St.  ■_".):;  (1857). 

Husband's     representations     subsequent 
to  application  not  admissible. 

When  in  such  case  the  husband,  in  hi-  ap 
plication  for  the  policy,  has  made  certain  rep- 
resentations as  to  his  health,  which  rep- 
resentations are  made  a  part  of  the  policy,  his 
subsequent  declarations,  made  pending  his  un- 
authorized negotiations  for  the  surrender  of  the 
policy,  and  tending  to  -how  the  false  or  fraud 
ulent  character  of  the  representations  in  the 
application,  are  not  competent  evidence  in  an 
action  brought  by  the  wife  upon  the  policy. 
Ins.    Co.   v.   Applegate.   7    Oh.    St.   293    (1857). 

Husband's  representations  prior  to  ap- 
plication not  admissible. 

So  in  an  action  by  the  wife,  on  a  policy 
issued  upon  her  and  her  husband's  join!  appli- 
cation, and  for  her  sole  benefit,  the  declara- 
tions of  her  husband  made  prior  to  the 
application,  and  showing  that  certain  state- 
ments therein  are  untrue,  are  not  admissible. 
—  Ins.  Co.   v.  Cheever,  36  Oh.   St.  201    (1881). 

"When  failure  to  send  notice  will  excuse 
payment  of  premium. 

Where  by  the  terms  of  the  policy  the  pre- 
mium on  the  stnie  is  reduced,  by  reason  of  the 
participation  by  the  beneficiary  in  the  earn- 
ings of  the  company,  and  it  ha-  been  the 
uniform  practice  of  the  company  to  notify  the 
beneficiary  of  the  amount  of  premium  due. 
and    by   reason    of   the   neglect    to 


notice  a  premium  i-  no!  pa 
specified  in  tin-  policy,  sui  h  fai 
nol  bar  a  recov<  i j  upon  the  ; 
by   it-   term-   the   -.,• 

of    failure    to    pay    pren  i 
specified  dale-.      [ng    i 
156    i  1—';  .     Se<     !-  -    <  Pol 

St.    159 
( 19 

See    j     3608. 

When  husband   ceases  to   become    u 

agent. 

Where  the  company  has  unil 
tices  of  the  amounl   of  premium  d 

insured   ( the  husband  of  the  b  i 
be    has    regularly    paid    1 1  • 
regarded,  in  making  such   payment  - 
for  t  he  wife ;  bul  «  here  1 1 
notified   by  the  husband, 
i  ha  t  he  and  the  «  ife 
company    i-    not    justified    in    I 
her  agent .  for  the  purpost 
not  ice  for  her  or  of  mak  ii 
policy.—  In-.    Co.    \.    Smith, 
L886  . 

Husband     merely    as    such     eauutol     «ur- 
render   policy  payable   to    u  i 

In  such   ea-e  the  attempt    I 
without   knowli 

the  policy  to  * 

does  not   impair  the 
Co.  v.  Smith.  44  Oh.  S 

Benef  ciarics'  rights  cannol 

Where  a  husband  | 
to  his  wife,  and 

a    premium     i 

(.ii.  ro 

clause  will   m>t 

the  wifi 

Oh.  st 

• 

cate   in   mutual 

Divorce  by  heu^fir  I 

Wh 

payable   to    the   wif< 
same,  notwithstanding 

her.- 

44   \Y.   L.    B.   81 

: 


380 


Private  Corporations  in  Ohio. 


Wife  May  Insure  Life  of  Husband,   §  3629. 


Upon    death    of    beneficiary,    policy    re- 
verts to  assured. 

In  case  all  the  beneficiaries  named  in  the 
policy  die  before  the  death  of  the  assured, 
such  policy  reverts  to  the  assured,  and  upon 
his  death  becomes  part  of  his  personal  estate. 
—  Ryan  v.  Rothweiler,  50  Oh.  St.  595  (  1893  I  ; 
Frank,  Admr.,  v.  Bauman,  35  W.  L.  B.  5 
(1896);  Richmond  v.  Johnson,  7  W.  L.  B. 
224   (1881). 

Policies    of    mutual    protective    associa- 
tion not  subject  to  section. 

Policies  issued  by  a  company  for  the  mu- 
tual protection  of  its  members,  on  the  assess- 
ment plan,  as  provided  in  section  3630,  arc 
not  subject  to  sections  3628  or  3629.  —  In  re 
Estate  of  C.  F.  Andress,  5  N.  P.  253  (1897)  : 
s.  c.j  6  Dec.  1/4. 

Section  applies  to  foreign  companies. 

Section  applies  as  well  to  a  policy  issued  by 
a  company  organized  and  conducted  outside 
the  limits'  of  Ohio  as  to  a  policy  issued  by  a 
company  of  this  state.  —  Cross  v.  Armstrong, 
44  Oh.  St.  614   (18S7). 

Sections   3628  and  3629   construed. 

Section  3(128  applies  where  the  insurance  is 
effected  by  the  person  whose  life  is  insured, 
for  the  benefit  of  his  widow  and  children,,  or 
either.  The  policy  is  a  chose  in  action  be- 
longing to  the  husband,  subject  to  the  limita- 
tions of  this  section. 

Section  3029  applies  where  the  insurance  is 
effected  by  the  wife  on  the  life  of  her  husband, 
and  although  the  premiums  may  have  been 
paid  by  him,  the  policy  is  yet  the  wife's  sep- 
arate property,  upon  which  the  husband's 
creditors  have  no  claim,  unless  the  payment 
of  premiums  by  him  has  had  the  effect  of  with- 
drawing funds  to  which  the.  creditors  were 
entitled.  As  to  creditors  whose  claims  ex- 
isted when  such  payments  were  made,  fraud 
might  be  presumed;  as  to  subsequent  creditors 
it  would  be  necessary  to  show  that  there  was 
fraudulent  intent.  —  Weber,  Loper  &  Co.  v. 
Paxton  et  al.,  48  Oh.  St.  266,  271   (1891). 

Policy   secured   by  wife   on  life   of   hus- 
band not  affected  by  this  section. 

A  policy  pin  porting  on  its  face  to  have  been 
effected  by  a  married  woman  on  the  life  of  her 
husband,  wherein  the  company  agrees  to  pay 
such  insurance  to  her,  and  if  not  living,  then 
to  her  children,  is  prima  facie  the  sole  prop- 
erty of  the  wife,  and  as  such  is  not  affected 
by  section  3628.  —  Weber,  Loper  &  Co.  v.  Pax- 
ton  et  al.,  48  Oh.  St.  271   (1891). 

Premiums    paid    by    husband,    not    suffi- 
cient to  defeat  wife's  rights. 

The  fact  that  the  premiums  have  been  paid 
by  the  husband  is  not  sufficient,  of  itself,  to 
overcome  the  legal  effect  of  the  terms  of  the 


contract.  —  Weber,  Loper  &  Co.  v.  Paxton  et 
al.,  48  Oh.  St.  2U6,  271    (1891). 

Creditors     must     show     insolvency     and 
fraud. 

Where  creditors  of  the  husband  seek  to 
reach  the  proceeds  of  such  policy,  they  must 
establish  not  only  that  the  husband  was  in- 
solvent at  the  time  of  his  decease,  but  that 
such  payments,  or  some  of  them,  were  made 
in  fraud  of  existing  creditors.  —  Weber,  Loper 
&  Co.  v.  Paxton  et  al..  48  Oh.  St.  266,  2/1 
(1891). 

Decisions  under  old  law  note. 

The  decisions  following  construe  the  law  as 
it  was  before  the  amendment  of  April  19  1898, 
93  v.  131. 

Merely    fixes    exemptions    of    wife    and 
children. 

Merely  fixes  exemption  rights  of  wife  and 
children  in  the  benefit  fund;  also  fixes  rights 
of  creditors.,  and  does  not  give  any  insurance 
interest  to  wife  and  children.  —  In  re  Estate 
Andress,  5  N.  P.  253   (1897)  :  s.  c,  0  Dec.  174. 

Premium  on  each  policy  taken  by  itself. 

The  premium  on  each  policy  must  be  taken 
by  itself  and  not  that  of  several  policies  added 
together.  —  Hinch,  Admr.,  v.  d'Utassy,  1  Dec. 
372. 

Assignment  of  policy  to  wife,  void  as  to 
creditors. 

The  assignment  by  a  husband  to  his  wife  of 
a  policy  payable  to  himself,  and  upon  which 
he  has  paid  the  premiums,  is  voidable  as  to 
creditors  if  made  with  intent  to  defraud  them. 
Section  3629  must  be  construed  with  §§  3628 
and  (1344,  and  was  not  intenued  to  dispense 
with  the  uona  fides  of  the  transaction.  —  Chi  I 
v.  Graham  et  al..  7  W.  L.  B.  43  (1882);  Bank 
v.  McLean,  25  W.  L.  B.  (Mich.  Sup.  Ct.)  235 
(1891). 

Amount  creditors  will  receive. 

When  such  assignment  is  set  aside,  the  en- 
tire proceeds  of  the  policy  inure  to  the  credit- 
ors, when  the  insurance  permitted  by  §  3628 
has  been  received  by  the  wife.  —  Child  v. 
Graham  et  al.,  7  W.  L.  B.  43  (1882). 

Administrator    need    not    interplead    in 
foreign  court  as  to  excess  insurance. 

In  an  action  on  a  policy,  payable  to  the 
widow,  where  the  amount  of  annual  premiums 
exceeds  one  hundred  and  fifty  dollars,  brought 
by  her  in  the  state  where  the  company  is  lo- 
cated, the  administrator  of  the  deceased,  a 
resident  of  this  state,  cannot  be  compelled  to 
interplead,  and  a  judgment  of  such  foreign 
court  cannot  bar  his  rights  against  the  widow 
as  to  such  excess  insurance.  —  Cross  v.  Arm- 
strong. 44  Oh.  St.  (ill   (1887). 

See  38  W.  L.  B.  239,  and  notes  to  §  3629,  also 
§  3631-18  and  §  5427. 


§  3629.  WIFE  MAY  INSURE  LIFE  OF  HUSBAND.  —  Any  married  woman  may, 
by  herself,  and  in  her  own  name,  or  in  the  name  of  any  third  person,  with  his  assent 
as  her  trustee,  cause  to  be  insured  the  life  of  her  husband,  for  her  sole  use,  for  any 


I  .i  i  i:    Ixsi'N  ■ 


381 


Mutual  Protective  Associations, 


definite  period,  or  for  the  term  of  his  natural   life,  and   11   si  •    I  urvivc 
term,  the  amount  of  insurance  becoming  due  and  tr- 

ance shall  be  payable  to  her,  to  and  for  her  own  a   •  .  free 
sentatives  of  the  husband,  or  any  of  his  creditors;    a  pc 
any  person,  duly  assigned,  transferred,  or  made  payable  to 
any  person  in  trust  for  her  or  for  her  benefit,  whether  sui 
husband  or  other  person,  shall  inure  to  her  separate  use  a  I 
children,  independently  of  her  husband  or  his  creditors,  or  of  th<    ; 
transferring  the  same,  or  his  creditors;    and  the  amount  of  the 
in  the  preceding  section,  or  this  section,  may  be  made  payabli 
of  the  wife  before  the  period  at  which  it  becomes  due,  to  his,  her,  01    theix  <  In! 
for  their  use,  as  shall  be  provided  in  the  policy  of  insurance,  or  to  theil  a,  if 

under  age;    but  if  there  are  no  children  upon  the  death  of  the  wife,  snch  poll 
revert  to  and  become  the  property  of  the  party  whose  life  is  insured,  unless  it  has 
been  transferred  as  hereinafter  provided;    and  if  by  its  terms,  or  a 
a  policy  is  payable  to  a  married  woman  solely  for  her  use,  she  may  sell,  a 
surrender  the  same,  but  the  party  whose  life  is  insured  shall  concur  in  and  bee: 
party  to  the  transfer;   but  if  a  policy  be  procured  by  any  person  with  intent  to  del 
his  creditors,  an  amount  equal  to  the  premium  paid  thereon,  with  interest,  shall  inure 
to  the  benefit  of  his  creditors,  subject,  however,  to  the  statute  of  limitations.     (  A 
27,  1872,  69  v.  150,  §  30;    February  8,  1847,  45  v.  53,  §§  2,  3;    June  12,  1879,  76  v. 
160,  §  1;    S.  &  C.  7370 


Policies    of   mutual    protective    associa- 
tion, not  subject  to  section. 

Policies  issued  by  a  company  for  the  mutual 
protection  of  its  members,  on  the  assessmenl 
plan,  as  provided  in  §  3(>30,  are  not  subject  to 


§  3628  or  3629.    -  In  re  Estate  of    ^ndr< 
X.  P.  253   I  1897  I ;  s.  c,  6  D(       171. 

Sec  notes  i"  Weber,  Loper  i  I 
ami  Ryan  v.  Rothweiler,  under  pr< 
tion.    Sec.  also,  Lns.  <  ".  \ .   Elamill 
St.  274     1  -  - 


§    3630.     MUTUAL    PROTECTION    ASSOCIATIONS;     POWERS;     ACCUMULA- 
TIONS;   CERTIFICATES;    BY-LAWS.  —  A  company   or  association   may   be    Digan- 
ized  to  transact  the  business  of  life  or  accident  or  life  and  accident  insurance  on  the 
assessment  plan,  for  the  purpose  of  mutual  protection  and  relief  of  its  members,  and 
for  the  payment  of  stipulated  sums  of  money  to  the  families,  heirs,  executors,  admin- 
istrators, or  assigns  of  the  deceased  members  of  such  company  or  association,  aa 
member  may  direct,  in  such  manner  as  may  be  provided  in  the  by-laws,   and    I 
receive  money  either  by  voluntary  donation  or  contribution,  or  collect  the  s 
assessments  on  its  members,  and  may  accumulate,  invest,  distribute  and  appror: 
the  same  in  such  manner  as  it  may  deem  proper;    that  all  accumulations  and  accre- 
tions thereon  shall  be  held  and  used  as  the  property  of  the  members  and  in  the  int 
est  of  the  members,  and  shall  not  be  loaned  to,  used,  appropriated,  or  invested  f  c  i 
benefit  of  any  officer  or  manager  of  such  company  or  association;    and  provided,  that 
no  company  or  association  shall  issue  a  certificate  for  a  greater  amount  than 
company  or  association  shall  be  able  to  pay  from  the  proceeds  of  cne  assessment; 
such  company  or  association  shall  not  be  subject  to  the  preceding  sections  of  t 
chapter.      Associations   organized  under   this   section   (3630)   may  change   or   amen, 
their  constitution  or  by-laws  by  the  assent  thereto  in  writing  of  a  majority  of  t 
members,  or  by  a  majority  of  those  present,  in  person  or  by  proxy,  at  a  me 
for  that  purpose,  thirty  days'  notice  of  such  meeting   having  been   given   v 
proposed  changes  in  full  by  the  acting  president  personally  or  by  letter  m 
each  member,  provided,  however,  that  such  change  shall  not  take  effec 
until  the  same  has  been  submitted  to.  and  approved  by  the  superintendent 
ance.     Such  associations  may  provide  in  their  by-laws  that   there   shall  be  i 
than  five  nor  more  than  fifteen  trustees,  whose  term  of  office  shall  not  be  n 
three  years.     If  the  term  be  made  more  than  one  year,  the  by-laws  may  provid 
electing  at  the  first  election  a  portion  of  them  for  one  year,  a  portion  of  them  for  two 


382 


Private  Corporations  in  Ohio. 


Mutual  Protective  Associations,   §  3630. 


years  and  a  portion  of  them  for  three  years,  and  thereafter  elections  shall  be  for  a 
term  of  three  years.  Such  associations  by  their  regulations  or  by-laws  may  provide 
for  — 

1.  The  time,  place  and  manner  of  calling  and  conducting  their  meetings. 

2.  The  number  of  members  constituting  a  quorum. 

3.  The  time  cf  the  annual  election  for  trustees  and  the  mode  and  manner  of  giv- 
ing notice  thereof. 

4.  The  duties  and  compensation  of  officers. 

5.  The  manner  of  election,  or  appointment,  and  tenure  of  office  of  all  officers;  the 
tenure  of  the  trustees  shall  not  be  for  more  than  three  years,  one-third  of  whom  may 
be  elected  annually.  The  provisions  of  sections  3251  and  3252  shall  not  apply  to 
associations  organized  under  section  3630. 

6.  Provided,  however,  that  nothing  herein  shall  be  construed  to  affect  or  impair 
the  powers  or  franchises  of  corporations,  companies  or  associations  heretofore  organ- 
ized under  the  provisions  of  original  section  3630,  or  under  the  said  section  as  hereto- 
fore amended-  and  provided  also,  that  such  companies  or  associations  may  avail 
themselves  of  the  provisions  of  this  act  by  amendment  of  their  articles  of  incorpora- 
tion as  provided  in  section  3238a.  (March  31,  1891,  88  v.  251;  May  14,  1886,  83  v. 
161;    Rev.  Stat.  1880;    February  3,  1875,  72  v.  23,  §  3.) 


Construction  of  section  before  amendment 
(88  v.  251).  —  State  v.  Ins.  Co.,  47  Oh.  St. 
1G7   (1890). 

Not     subject    to    preceding    sections    of 
this  chapter. 

A  company  organized  for  the  purposes  spe- 
cified in  this  section.,  whether  incorporated 
before  or  after  the  amendment  of  Feb.  3.  1875 
(72  v.  23.  §  3).  is  not  subject  to  the  laws  of 
this  state  relating  to  life  insurance  com- 
panies.—  State  v.  Mutual  Protection  Ass'n, 
26  Oh.  St.  19  (1875)  ;  State  v.  Standard  Life 
Ass'n,  38  Oh.  St.  281  (1882)  :  In  re  Estate  of 
Andress,  5  X.  P.  253  (1897)  :  s.  c.  0  Dee.  1-4. 

Subject   to   general   law   governing    cor- 
porations not  for  profit. 

Corporations  organized  under  this  section, 
though  not  subject  to  the  provisions  relating 
to  life  insurance  companies  on  the  mutual  or 
stock  plan,  are  subject  to  the  general  pro- 
visions of  chapter  1.  title  2.  which  apply  to 
corporations  formed  for  purposes  other  than 
profit.  —  State  v.  Standard  Life  Ass'n,  38  Oh. 
St.  281   (1882). 

Cannot   guarantee   fixed   amount. 

Associations  have  no  power  to  issue  policies 
guaranteeing  any  fixed  amount,  excepf  sueh 
fixed  amount  shall  be  conditioned  upon  the 
same  being  realized  from  the  assessments 
made  on  members  to  meet  it.  —  State  ex  rel.  v. 
[ns.  Co.,  47  oh.  St.  167   (1882). 

Limitation  as  to  beneficiary. 

Associations  organized  under  this  section 
are  not  authorized  to  provide  for  the  payment 
of  stipulated  sums  to  persons  other  than  the 
family     or     heirs     of     a     deceased     member. 

(Amended  [88  v.  251]  to  extend  to  families, 
heirs,  executors,  administrators  or  assigns  of 
deceased  members.  Section  6  of  this  section 
provides  for  the  amendment  of  previously 
organized     as  ociations.) — State     v.     Mutual 


Benefit  Ass'n.  42  Oh.  St.  579  (1885);  Na- 
tional Mutual  Aid  Ass'n  v.  Gonser,  43  Oh.  St. 
1  (18S5):  State  ex  rel.  v.  Mutual  Relief 
Ass'n.  29  Oh.  St.  399  (187G)  ;  State  v.  Stand- 
ard Life  Ass'n,  38  Oh.  St.  281,  296  (1882). 

Foreign   mutual   companies   may   do   as- 
sessment business. 

While  life  insurance  companies  organized  in 
this  state  to  transact  business  on  the  mutual 
plan  have  no  authority  to  do  business  on  the 
assessment  plan,  yet  such  a  foreign  corpora- 
tion having  such  power  should  be  allowed  to 
do  business  in  this  state  under  §  3630e.  — 
Ohio  ex  rel.  v.  Matthews,  58  Oh.  St.  1   (1898). 

Regulations       of       association       govern 
rights  of  members. 

The  laws  and  regulations  of  such  an  asso- 
ciation determine  the  rights  of  the  members; 
and  a  fund  raised  by  the  association  in  pur- 
suance of  such  laws  and  regulations,  to  be 
paid  to  the  family  or  heirs  of  a  deceased 
member,  in  the  manner  therein  specified,  un- 
less otherwise  directed  by  such  member  dur- 
ing his  lifetime,  will,  on  failure  to  give  such 
direction,  be  controlled  by  such  laws  and 
reoulations.  —  Arthur  et  al.  v.  Odd  Fellows 
Benef.  Assn  et  al..  29  Oh.  St.  557  (1876); 
Chareh  v.  Charch,  Exr.,  et  al.,  57  Oh.  St.  561 
( 1898). 

Same  subject;  applies  to  foreign  as  well 
as  domestic  associations. 

Chareh  v.  Chareh.  Exr.,  et  al..  57  Oh.  St. 
561   (189S). 

Rules      of      association      govern      as     to 
change   of  beneficiary. 

Change  of  beneficiary  can  only  be  made  in 
the  manner  provided  by  the  rule  s  of  the  asso- 
ciation.  Where  a  certificate  of  such  associa- 
tion is  payable  to  the  wife,  and  by  the  rules  a 
change  of  beneficiary  can  only  be  made  by  the 
surrender  and  issue  of  a  new  certificate,  such 


Life  [nsur/ 


383 


Mutual  Protective  Associ.n 


change  cannot  be  made  ( the  wife  being  in  life) 
by  will.  —  Charch  v.  Charch,  Exr.,  e1  al.,  ."i7 
(ill.  St.  561  (1898);  Stephenson  \.  Stephen- 
son, 04  la.  534  (1884).  I'.m  see  Vance  \. 
Park,   L5  »'•  C.  71:;   I  1898)  ;  s.  c,  8  C.  D.   \i:,. 

■What  rules  govern  change  of  bene- 
ficiary. 

Method  nt'  changing  beneficiary  depends  on 
rules  in  force  at  time  of  change,  nol  when 
certificate  was  issued.  —  Supreme  Council  \. 
Feanke,  34  111.  App.  651    I  1890) . 

Exceptions  to  rule  that  beneficiary 
must  be  changed  in  prescribed  man- 
ner. 

I.  If  association  lias  waived  a  strict  com- 
pliance with  it-  rules.  -Thesing  v.  Knights 
et  al..  2  4  W.  L.  15.  401  I  L890)  ;  Knigl 
Honor  v.  Watson.  ti4  X.  11.  :>  1 7  i  1888)  :  Mayer 
v.  Reserve  Fund,  40  linn.  :;::ii  |  L888)  ;  Martin 
v.  Stubbings,  126  111.  387    I  L8 

a.  But  company  cannot  waive  charter  pro- 
visions.—  Duvall  v.  Goodson,  79  Ky.  224 
(1880):  Presbyterian  Fund  v.  Allen,  106  Lnd. 
593  (1886);  Supreme  Council  v.  Perry,  1  10 
Mass.  580   (  1886). 

II.  If  it  be  beyond  the  power  of  the  insured 
to  comply  literally  with  the  regulations,  a 
court  of  equity  will  treat  the  change  as  hav- 
ing been  made. 

III.  If  the  assured  has  pursued  the  course 
pointed  out  by  the  laws  of  the  association, 
and  has  done  all  in  his  power  to  change  the 
beneficiary,  but  before  the  mw  certificate  is 
actually  issued  he  dies,  a  court  of  equity  will 
decree  that  to  be  done  which  oughl  to  be  done. 
—  Ancient  Order  v.  Noll,  15  L.  R.  A.  I  Mich.) 
350  (1892);  Clark  v.  Eirsenl,  81  la.  200 
(1890);  Spawn  v.  Chew.  60  Texas,  532 
(1883)  :  Nat'l  Ass'n  v.  Kirgin,  28  Mo.  Ap.  mi 
i  iss7  i  :  Marsh  v.  Supreme  Council,  149  Mass. 
.112  (1889)  :  Supreme  Conclave  v.  Cappela,  41 
Fed.  1    (1890). 

■What  constitutes  direction  as  to  pay- 
ment of  fund. 

Where  by  such  regulations  the  fund  is  to  lie 
paid  "to  the  widow,  children,  mother,  sister, 
father  or  brother  of  a  deceased  member,  and 
in  the  order  named,  if  not  otherwise  directed 
by  the  member,"'  the  relatives  will  take  the 
fund  in  the  order  named,  mil.--  tin-  member 
otherwise  directed  during  his  lifetime:  and 
the  will  of  a  member,  who  died  seized  of  both 
real  and  personal  property,  devising  to  his 
children  "my  estate  and  property,  real,  per- 
sonal and  mixed,"  is  not  such  an  execution  of 
the  power  of  direction  as  will  control  the 
fund.  — Arthur  et  al.  v.  Benenl  Ass'n,  29 
Ohio  St.  557  (1876)  ;  Stephenson  v.  Stephen- 
son, 64  la.  534  (1884).  But  see  Vance  v. 
Park,  15  C.  C.  713  I  L898  I  ;  s.  ...  8  C.  D.  425. 

Beneficiary  funds  form  no  part  of  tes- 
tator's  estate. 

In  re  Estate  of  Andress.  5  X.  P.  253  I  1896)  ; 
6  Dec.  174:  Odd  Fellows  Benef.  Ass'n  v.  Die- 
bert,  2  C.  C.  462    (1887)  :   s.  c,   1   C.   D.  238; 


Arthur  el  al.  \.  I 

oh.  SI 

Relationship  need  onlj   >\i-t   ubn  .    i- 

tifioate    issued. 

It   i-  sufficient 
ance  •>: 

ex  i-i  ing    \\  hicli    enl  i 
beneficiary,  and   i 
will     terminate 

1 1  i  •■■ -'Hi     r  e  m  a  r  r  i 

mandery    v.    Everdin 
i  L893);  s.  ,■  .  I  l  i  .  \> 

Who  are  i 
The  meml 
mutually  engaged   in  promol  in 
of   the 

their  relal  ion  to  t  he  coi  p 
to  t  he  unit  ual  protect  ion  and   > 
or  whose  family  <u'  h 
cut  it  led  to  I  he  specific  i  el  i 
v.  Standard  Life  Ass'n,  38  I  lh.  - 

Members  may  adept  by-laws  and    I 

lations. 

Such  met 
in-  body  aul  hoi  i 
scribe  n  gulal  ions   foi    I  hi    . 
same,     n   i     inconsistenl 
t  he  state.     Neil  her  t  he  in 
trustees  first   •  '■ 

a  by-law  pro*  iding  that  they  shall 
during  life,  an  1 
by    appointment.       Stal 
Ass'n, 

Power  cf  trustees. 

Trusti  es  are  charged  with  I 
fully  ex.  cuting  the   trusl    whii 
regulations  impose  mi  them, 
thd  tn  reasonable  compens   I 
by  which  money  i-  collect* 
assi  Ssmen1  or  otherw  ise,  \\  ith 
individual    profit,  and   beyond 
sary  tn  defray  the  reason  ible  ■ 
trust,   i-  a    lip 
Standard   Lite   Ass'n,   38 
See  i:  te  v.  Mut.  Ben 

under  this  seel  i>m._ 
What  constitutes 

\    ,  of   lie-mli'  i 

poration,  in  which  the  bo 
»ership    fee,    annual 
sments  in 
stipulation    to   i  aj    I 
sum  nt  money,  is  a 

i. lard    Lit.-    Ass 

Compensation  of  trns'- 

Trustees  having  a 
:,.  comp<  ns  ttion  U  ■ 
Ocular    years,    have    no    power    in    - 

■ 
tion  for  services  of  pre*  i 

Such    trustees,    ui 
with    the   additional 
agents,    <vr   IC 
will    reasonably    pay    for   their   ti: 


384 


Private  Corporations  in  Ohio. 


Mutual  Protective  Associations,   §  3630. 


penses  in  going  to.  attending  and  returning 
from  their  official  meetings,  and  for  services 
while  in  session. —  State  v.  Mutual  Benefit 
Ass'n,  42  Oh.  St.  579   (1885). 

Trustees   cannot  act  individually. 

Trustees  have  no  authority  to  act  for  or 
bind  the  association  except  in  their  aggregate 
capacity  as  a  board:  and  where  they  assume, 
by  virtue  of  their  trusteeship,  to  act  in  the 
individual  capacity  as  officers  or  agents  of  the 
corporation,  they  cannot  thereby  create 
against  it  a  legal  liability  to  compensate 
them  as  trustees  for  such  services. —  State  v. 
Mutual  Benefit  Ass'n.  42  Oh.    St.  579    (1885). 

See  also  State  v.  Standard  Life  Ass'n,  supra, 
under  this  section. 

Invalid  assignment  of  certificate. 

"  D.,"  a  member  of  an  association,  in  con- 
sideration of  a  loan,  assigned  his  certificate  of 
membership  to  a  person  in  no  way  related  to 
him.  with  the  agreement  that  the  assignee 
should  pay  all  future  assessments,  and  upon 
"  D.'s  "'  death  to  receive  the  sum  due  on  the 
certificate.  The  assignee,  in  good  faith  and  in 
reliance  of  the  assignment,  paid  such  assess- 
ments until  "  D.'s  "  death.  "  D."  left  a  widow. 
The  rules  of  the  association  provided  that  the 
certificate  should  be  payable  to  the  widow. 
children,  mother,  sister,  father  or  brother  of 
the  deceased  member,  and  in  the  order  named. 
unless  otherwise  directed  by  the  member  pre- 
vious to  his  death.     Held: 

1.  That  the  assignment  was   void. 

2.  That  a  member  cannot  direct  the  pay- 
ment of  the  beneficiary  fund  to  any  other  per- 
son than  those  named  in  the  rules  of  the 
association,  and  that  the  words  "  unless  other- 
wise directed "  simply  empower  the  member 
to  designate  who,  of  such  persons  named, 
shall  receive  the  fund  in  disregard  of  the 
order  in  such  rules. 

3.  That  the  fund  being  in  court  for  distri- 
bution, it  will  be  ordered  paid,  (a)  the  costs; 
(b)  to  the  assignee,  the  assessments  paid  sub- 
sequent to  the  assignment,  with  interest 
thereon;    (e)    the  balance   to  the  widow. 

4.  That  the  fund  became  no  part  of  the 
estate,  and  that  as  to  sucli  loan  the  assignee 
had  no  claim  upon  the  fund. —  Odd  Fellows 
Benef.  Ass'n  v.  Diebert  et  al.,  2  C.  C.  462 
(1887);   s.  c,  1   C.  D.  589. 

Charter     limitation     as     to     beneficiary 
cannot   be   changed. 

Where  the  charter  of  an  association  limits 
it  to  the  payment  of  its  protective  funds  to 
certain  designated  persons,  a  member  ot  such 
association  can  by  no  act  of  his  own,  name 
any  other  beneficiary  than  those  designated  in 
the  charter.— Odd  'Fellows  Benef.  Ass'n  v. 
Diebert  et  al..  2  C.  C.  462  (1887);  1  C.  D. 
589;  Mutual  Aid  Ass'n  v.  Gonser,  43  Oh.  St. 
1  L885);  Supreme  Council  v.  McGinness,  59 
Oh.  St.  531    (1899). 

Who  are  "  legal  heirs  "  as  beneficiaries. 

"  Legal  heirs,"  as  beneficiaries  in  a  policy 
issued  on  the  assessment  plan  to  one  having 


no  wife  and  children,  means  next  of  kin  as 
distributees  under  statute  of  descent,  and  the 
insurance  money  is  not  subject  to  claims  of 
creditors  of  estate. —  In  re  Estate  of  Andress, 
5  N".  P.  253  (1897):  s.  c,  6  Dec.  174:  Mutual 
Life  Ass'n  v.  Pollard  et  al..  3  C.  C.  577 
(1888);  s.  c,  2  C.  D.  333:  Mutual  Aid  Ass'n 
v.  Gonser,  43  Oh.  St.  1  (1885);  Jamieson  v. 
Knights'  Aid  Ass'n,  12  W.  L.  B.  272   (1884). 

Have  inherent  power  of  expulsion. 

State  ex  rel.  v.  Relief  Society.  2  W.  L.  B. 
125  (1877);  Bishop  v.  Chamber  of  Commerce, 
5  N.  P.  365  (1887)  ;  s.  c,  5  Dec.  356;  Cheney 
v.  Ketcham,  5  N.  P.  139  (1S98);  s.  c,  7  Dec. 
183. 

Exercise    of   power    of   expulsion. 

The  power  of  expulsion  from  membership 
and  benefits  cannot  be  exereiseu  by  a  com- 
mittee or  subordinate  branch,  except  upon 
clear  and  express  authority,  fairly  and  reason- 
ably- exercised. — -State  v.  Fraternal  Mystic 
Circle.  9  C.  C.  364  (1895);  s.  c,  6  C.  D.  385, 
61  Oh.  St.  628;  Cheney  v.  Ketcham,  5  N.  P. 
139    (1898)  ;    s.    c,    7    Dec.    1S3. 

Unlawful   expulsion;  remedy. 

Mandamus  will  not  be  granted  for  the  pur- 
pose of  restoring  to  membership  one  though 
unlawfully  expelled  from  an  association. 
Proper  remedy,  injunction  or  damages. — 
Fraternal  Mvsitie  Circle  v.  State,  61  Oh.  St. 
628  (1899);  Cheney  v.  Ketcham.  5  N.  P.  139 
(1S9S):  s.  c.  7  Dec.  183;  State  v.  Zesch.  5 
X  P  274  (1S9S):  a.  c,  7  Dec.  298.  Contra, 
Lavelle  v.  Societe,   etc..   17   R.   I.   680    (1892). 

As  to  remedies  of  order. 

See  notes  to  §  3631-11. 

Damages   for  wrongful  expulsion. 

Ludowski   v.    Benefit   Society,   29   Mo.   App. 

337    (1888);    Lavelle  v.  Societe,   etc.,   17   R.  I. 

680    (1S92);    Peyre   v.   Relief  Society,  90   Cal. 

240    (1891). 

Action  for  damages  bar  to  action  to  re- 
store  membership. 
State  v.  Lipa,  28  Oh.  St.  665   (1876). 

Valid      expulsion      destroys      insurance 
rights. 

Order  of  Red  Men.  v.  Murbach,  13  Md.  91 
(1858);  Woolsev  v.  Odd  Fellows,  61  la.  492 
(1883)  ;  Ellerbe  V.  Faust.  119  Mo.  653  (1894)  ; 
Supreme  Council  v.  Connema,  3  O.  C.  C.  130 
(1888). 

See  also  Dimmer  v.  Supreme  Council,  etc., 
22  O.  C.  C.  366   (1901). 

Designation     of     improper     beneficiary; 
effect. 

Designation  of  a  person  not  included  within 
the  class  to  be  benefited  under  rules  of  the 
association  does  not  relieve  it  from  payment 
to  the  proper  person.— Parke  v.  Welsh,  33 
111  App.  188  (1889);  Supreme  Council  v.  Mc- 
Ginness, 59  Oh.  St.  531  (1899).  But  see 
Knights,  etc.   v.  Watson,  64  N.  H.  518  (1888). 


I  -III    1 


385 


Mutual  Aid  Associations,   :. 


Interest  in  policy,  reserving  right  to 
change  heneficiary. 

A  policy  issued  in  favor  of  the  wife  of  Un- 
assured, which  reserves  to  the  latter  the  righi 
in  change  the  beneficiary,  confers  upoi 
wife  no  right  which  can  pass  to  her  estate  in 
case  of  her  death  prior  to  thai  of  her  husband. 
Tafel,  Admr.,  v.  Knights  oi  the  Golden  Rule, 
12  \Y.  L.  15.  35   I  1884). 

Beneficiary  of  certificate  has  no  vested 
rights. 

Thesing  v.  Knights  et  al.,  24  W.  L.  B.  401 
(1890);  Martin  v.  Stubbings,  L26  II!.  387 
(1888);  Knights  of  America  v.  Franke,  34  [11. 
App.  651  (1S90);  Knights  v.  Watson,  64  N.  II 
518  (1888). 

See  Pellazino  v.  Society,  16  W.  L.  B.  27 
(1886). 

See  as  to  rights  of  beneficiary  of  ordi- 
nary life  policy. 

Ins.  Co.  v.  Smith,  44  Oh.  St.  156  (1886); 
Union  Cent.  Ins.  Co.  v.  Buxer,  62  Oh.  St.  385 
(1900). 

Failure  to  pay  certificate  or  make  as- 
sessment —  remedy  and  measure  of 
damages. 

Hall  v.  Live  Stock  Ass'n,  25  W.  L.  B.  79 
(1891);     Lueders    v.    Ins.    Co.,    12    Fed.    465 


|W« 

103    [i 

W'liif 

Ass'n,  i-  W    I. 

Eq.   : 


;' 


.. 


Same    subject  j 
petil  Ion. 

Earnsha 
465 

1ml.    286 

Mich.    124 

Mo,  35    I 

da.  i  12). 

■Who  may  l><    benefieiarr. 

Mother,   though    nof 
Life    Ass'n    v.    Harrison,    23    VV.    I.     i; 

W^ho  is  dependent. 

( >ne  engagi  <l  to  be  ma  i 
nol  a  dependenl  within  1 1 
ute    limiting    bi 
•'  dependenl ."       ^mericai 
W.     I..     B.     (Mass.)     367 
Welch,    33    III.   App.    188    (188 

Supreme  ( 'ouncil  v.   McG 
St.  531    I  IS 

For  liability  on   as  vera- 

iii'_r  same,  etc.,  Bee  notes  undi  i 


§  3630a.     MUTUAL  AID  ASSOCIATION  ANNUALLY  TO  FILE  WITH  SUPER- 
INTENDENT  OF   INSURANCE   SWORN   STATEMENT   OF   ITS   TRANSACTIONS; 
WHAT  SUCH   STATEMENTS   TO  CONTAIN.— That  each  corpc  ation.    company 
association  now  organized,  or  that  may  hereafter  be  organized,  in  pursuance  of  sec- 
tions three  thousand  two  hundred  and  thirty-six  and  three  thousand  two  hundred 
thirty-eight  of  the  act  to  revise  and  consolidate  the  general  statutes  of  Ohio,  pa 
June  20,  1879,  or  under  any  other  law  of  this  state,  for  the  purpose  of  doing  business 
under  the  provisions  of  section  three  thousand  six  hundred  and  thirty  of  said  act.  or 
for  the  purpose  of  doing  such  business  as  is  contemplated  by  said  section,  shall,  on 
the  first  day  of  January,  each  year,  or  within  sixty  days  thereafter,  deposit  in  the 
office  of  the  superintendent  of  insurance,  a  statement,  under  oath,  of  all  its  transac- 
tions for  the  year  next  preceding  said  first  day  of  January,  and  the  condition  of  its 
business  at  the  close  of  said  year,   according  to  printed  blanks,  which  shall  be  pre- 
pared and  furnished  by  the  superintendent  of  insurance,  showing,  in  detail,  the  t: 
actions  of  each  company  or  association,  exhibiting  the  following  facts  and  items,  in 
the  following  form,  to  wit: 

1.  Number  of  certificates  or  policies  issued  during  the  year. 

2.  The  amount  of  the  indemnity  effected  thereby. 

3.  Number  of  death  losses  during  the  year. 

4.  Number  of  death  losses  paid  during  the  year. 

5.  Total  amount  received  from  death  assessments  during  the  year. 

6.  Total  amount  paid  to  certificate-holders  or  policy-holders  for  losses  duri: 
year. 

7.  Number   of   death  claims  not  due,  but  for  which  assessments  have  been  made. 

8.  Number  of  losses  for  which  assessments  have  not  yet  been  issued. 

9.  Number  of  death  claims  compromised  or  resisted  during  the  year,  and  rea 
for  such  compromise  or  resistance. 

10.  Does   the  association  or  company  charge  annual  dues? 

11.  How  much  are  the  dues  for  one  thousand  dollars  (31.000.00)  of  indemnityP 

LAW    GOV.    PRIV.    COR. —  25. 


386  Private  Corporations  in  Ohio. 

Mutual  Aid  Associations,   §§  3630b,  3630c. 

12.  Does  the  association  or  company  use  the  death  assessments  to  meet  _ts 
expenses,  in  whole  or  in  part? 

13.  Amount  of  death  assessments  used  to  meet  expenses  during1  the  year. 

14.  Do  the  certificates  or  policies  issued  by  association  or  company  guarantee 
a  fixed  amount  to  be  paid,  regardless  of  amount  realized  from  assessments  made  to 
meet  the  same? 

15.  If  so,  state  how  the  amount  is  guaranteed. 

16.  What  security  for  such  guarantee? 

17.  Does  the  association  or  company  issue  endowment  certificates  or  policies,  or 
undertake  and  promise  to  pay  to  members  during  life  any  sum  of  money  or  thing  of 
value? 

18.  If  so,  how  are  these  payments  or  promises  provided  for? 

19.  If  by  reserve,  state  the  amount  of  reserve. 

20.  From  what  source  is  the  reserve  fund  obtained? 

21.  How  invested? 

22.  What  guarantee  or  security  have   the  certificate-holders   for  this  reserve? 

23.  How  many  classes  or  divisions  of  endowment  certificates  or  policies  have  the 
association  or  company? 

24.  How  many  years  required  for  maturity  of  first  class  or  division?  How  many 
years  required  for  maturity  of  second  class  or  division?  How  many  years  required 
for  maturity  of  third  class  or  division?  How  many  years  required  for  maturity  of 
fourth  class  or  divisionP 

25.  Number  of  certificates  or  policies  in  force  in  first  class  or  division.  Number 
of  certificates  or  policies  in  force  in  second  class  or  division.  Number  of  certificates 
or  policies  in  force  in  third  class  or  division.  Number  of  certificates  or  policies  in 
force  in  fourth  class  or  division. 

26.  Date  of  organization  of  association  or  company. 

27.  Number  of  certificates  or  policies   lapsed  during   the  year. 

28.  Whole  number  of  certificates  or  policies  in  force  at  the  beginning  and  end  of 
the  year. 

29.  The  aggregate  amount  of  certificates  in  force  at  the  beginning  of  the  year. 

30.  The  aggregate  amount  of  certificates  lapsed  during  the  year. 

31.  The  aggregate  amount  of  certificates  in  force  at  the  end  of  the  year. 

32.  Maximum,  minimum,  and  average  age  of  members  received  during  the  year. 

33.  Has  the  association  or  company  any  agents  who  have  not  given  bonds? 

34.  In  what  state  is  the  association  doing  business?    (April  12,  1880,  77  v.   178.) 

This  act  does  not  enlarge  the  class  of  companies  provided  for  in  the  preceding  section. — 
State  v.  Moore,  38  Oh.  St.  7    (1882). 

§  3630b.  TO  MAKE  REPORT  TO  SUPERINTENDENT  WITHIN  NINETY 
DAYS. —  Within  ninety  days  after  the  passage  of  this  act,  each  corporation,  company, 
or  association  doing  business  in  pursuance  of  said  section  three  thousand  six  hundred 
and  thirty,  shall  report,  under  oath,  to  the  superintendent  of  insurance  its  transac- 
tions for  the  year  1879,  on  the  form  required  to  be  furnished  in  the  first  section  of 
this  act.     (April  12,   1880,  77  v.   178,  180.) 

§  3630c.  FAILURE  TO  FILE  STATEMENT  TO  WORK  FORFEITURE  OF 
FRANCHISE;     ATTORNEY-GENERAL     TO     INSTITUTE      PROCEEDINGS.— Any 

such  corporation,  company,  or  association  which  shall  fail  or  refuse  to  file  a  state- 
ment or  report,  or  whose  treasurer  fails  to  file  a  bond  as  required  by  this  act,  shall 
forfeit  its  right  to  do  business,  which  forfeiture  the  superintendent  of  insurance  shall 
enforce  by  proceedings  in  quo  warranto;  and  it  is  hereby  made  the  duty  of  the 
attorney-general  of  the  state  to  institute  such  proceedings,  upon  his  request,  in  writ- 
ing. No  such  corporation,  company,  or  association  issuing  endowments,  certificates 
or  policies,  or  undertaking,  or  promising  to  pay  to  members  during  life  any  sum  of 


Life  Insuranci    Comp      n  387 


Mutual  Aid  Association 


money,  or  thing  of  value,  or  certificate,  or  policy  guaranteeing 

paid  at  death,  except  such  fixed  amount  or  endowments  shall  1, 

same  being  realized  from  the  assessments  made  on  members  to  mt  ■ 

permitted  to  do  business  in  this  state,  until  they  Khali  comply  with 

ing  regular  mutual  life  insurance  companies.     (April   12,   1880,  77   v.    1  , 

See  State  ex  rel.  v.  Ins.  Co.,  47  Oh.  St.  167,  171      189 

§   3630d.     SUPERINTENDENT  OF  INSURANCE  MAY  CAUSE  EXAMINA  I 
TO  BE  MADE. —  The  superintendent  of  insurance  may,  whene\  ■ 
to  believe  that  the  business  of  any  such  corporation,  company  or  asso- 
being  legally  and  honestly  conducted,  or  that  such  corporation,  company  or 
tion  is  exercising  powers  or  franchises  not  conferred  by  law,  cause  an  exam; 
its  affairs  to  be  made;  and,  if  upon  such  examination,   it  shall  appear  that 
poration,  company  or  association  is  exercising  powers  or  franchises  contrary  to 
the  superintendent  of  insurance  shall  institute  proceedings  in  quo  war: 
the  same,  in  the  manner  provided  in  section  3630c  of  the  Revised  Statutes 
and  the  expenses  of  all  examinations  of  all  companies,  made  under  authority  of 
chapter,  shall  be  paid  by  the  state  treasurer  on  the  warrant  of  the  state  auditor  upon 
the  certificate  of  the  superintendent  of  insurance;  provided  that  the  expenses  of  any 
examination,  made  upon  the  demand  of  the  company,  shall  be  paid  by  the  com: 
making  such  demand;  and  provided  further,  that,  when,  by   the  laws  of  any  other 
state,  district,  territory  or  nation,  examinations  of  companies  or  associations  of  this 
state   are   required   or   permitted   to  be  made  by  the  insurance  department   or  other 
authority  of  such  state,  district,  territory  or  nation  at  the  expense  of  such  companies, 
then  the  expenses  of  all  examinations,  made  by  the  insurance  department  of  this  state 
of   companies   of    such    state,    district,    territory   or   nation,   shall   be   charged    to   and 
collected  from  the  companies  so  examined  respectively.     (May  12,   1902.  95  v.   549; 
April  12,   1880,  77  v.   178,  180.) 

§  3630e.  RULES  UNDER  WHICH  FOREIGN  ASSOCIATIONS  MAY  DO  BUSI- 
NESS IN  THIS  STATE;  CERTIFICATE;  REVOCATION;  ANNUAL  STATEMENT. 
OBLIGATIONS  SIMILAR  TO  THOSE  OF  OTHER  STATES.—  Any  corporation,  com- 
pany or  association  organized  under  the  laws  of  any  other  state  of  the  United  States 
to  transact  the  business  of  life  or  accident  or  life  and  accident  insurance  on  the  assess- 
ment plan,  shall,  as  a  condition  precedent  to  transacting  business  in  this  state,  comply 
with  the  following  conditions,  to-wit:  Deposit  with  the  superintendent  of  insurance 
(1)  a  certified  copy  of  its  charter  or  articles  of  incorporation;  (2)  a  certificate  from 
the  insurance  commissioner,  or  superintendent  of  its  own  state  showing  its  authority 
to  do  such  business;  (3)  a  certificate  from  said  commissioner  or  superintendent  or 
other  like  authority  of  its  own  state  that  corporations,  companies  or  associations  of 
this  state  engaged  in  life  or  accident  insurance  on  the  assessment  plan  as  the  case 
may  be,  are,  upon  complying  with  the  laws  of  said  state,  legally  entitled  to  do  1 
ness  in  such  state;  (4)  a  statement  under  the  oath  of  its  president  and  secretary  or 
like  officers,  in  the  form  by  the  superintendent  of  insurance  required,  of  its  business 
for  the  preceding  year;  (5)  a  certificate  under  the  oath  of  its  president  and  secre' 
or  like  officers,  that  such  corporation,  company  or  association  is  pavine.  and  for  the 
twelve  months  next  preceding  has  paid  the  maximum  amount  named  in  its  policies 
or  certificates;  (6)  a  copy  of  its  policy  or  certificate,  application  and  bv-laws.  which 
must  lihow  that  the  liabilities  of  the  assured  or  members  are  not  limited  to  fixed  or 
artificial  premiums;  (7)  evidence  satisfactory  to  ?rud  superintendent  that  such  cor- 
poration, company  or  association  has  accumulated  a^d  maintained  a  fund  securely 
invp=ted  in  securities  permitted  W  the  law  of  its  incorporation,  not  less  in  amount 
than  the  proceeds  of  one  periodical  payment  bv.  or  op  ^^"m^t  on  all  certificate  or 
rnl'»-  r.nlrio^  thereof,  and  that  such  fund  is  held  solelv  for  the  benefit  of  certificate 
or  policy  holders  and  can  only  be  used  for  the  purposes  provided  in  the  laws  of  the 


388  Private  Corporations  in  Ohio. 

Mutual  Aid  Associations,  §  3630e. 

state  where  incorporated;  provided,  that  said  fund  in  the  case  of  accident  companies 
or  accident  associations  shall  not  be  less  than  five  thousand  dollars,  and  need  not  be 
more  than  ten  thousand  dollars;  (8)  that  such  corporation,  company  or  association, 
except  it  be  an  accident  insurance  corporation,  company  or  association,  does  not  issue 
certificates  or  policies  upon  the  life  of  any  person  more  than  sixty-five  years  of  age, 
or  upon  any  life  in  which  the  beneficiary  named  has  not  a  legal  insurable  interest; 
provided,  license  to  do  business  in  this  state  shall  not  be  delivered  to  any  such  corpora- 
tion, company  or  association  until  it  shall  have  filed  with  the  superintendent  of  insur- 
ance an  appointment  of  an  attorney  within  this  state  upon  whom  service  of  process 
may  be  had.  The  superintendent  of  insurance  shall  thereupon  issue  to  such  corpora- 
tion, company  or  association  a  certificate  of  authority  to  transact  its  business  in  the 
state  of  Ohio,  which  said  certificate  of  authority  must  be  renewed  annually,  and  it 
shall  be  the  duty  of  the  superintendent  of  insurance  to  refuse  such  certificate  to  any 
such  corporation,  company  or  association,  when  in  his  judgment  such  refusal  will  best 
promote  the  public  interest;  provided,  that  all  decisions  by  him  made  shall  be  subject 
to  review  by  courts  of  competent  jurisdiction.  And  said  authority  shall  be  revoked 
whenever  the  superintendent  of  insurance  on  investigation  or  examination  finds  that 
such  corporation,  company  or  association  is  not  paying  the  maximum  amount  named 
in  its  policies  or  certificates  in  full;  that  said  corporation,  company  or  association  is 
transacting  business  fraudulently  or  illegally,  or  that  the  statement  of  its  condition 
and  affairs  required  under  the  provisions  of  this  section  are  false  and  fraudulent,  or 
for  failure  to  file  the  annual  statement;  and  upon  such  revocation,  the  superintendent 
shall  cause  notice  thereof  to  be  published  for  four  weeks  in  some  newspaper  published 
in  the  county  of  Franklin,  and  no  new  insurance  shall  thereafter  be  written  by  such 
corporation,  company  or  association  or  any  of  its  agents  in  this  state;  provided,  that 
it  shall  be  unlawful  for  any  agent  of  such  corporation,  company  or  association  to 
transact  business  in  this  state  without  being  first  regularly  appointed  thereby  and 
being  licensed  by  a  certificate  of  authority  issued  by  the  superintendent  of  insurance. 
Each  such  corporation,  company  or  association  shall,  annually  thereafter,  and  on  or 
before  the  first  day  of  March,  make  and  file  in  the  office  of  the  superintendent  of 
insurance  a  statement  in  the  form  by  said  superintendent  required  of  its  business  for 
the  twelve  months  next  preceding  the  thirty-first  day  of  December.  The  fees  to  be 
paid  by  each  such  corporation,  company  or  association  to  the  superintendent  for  the 
authority  to  such  corporation,  company  or  association  and  its  agents  under  the  license 
granted  by  him  to  each  corporation,  company  or  association,  to  transact  business  in 
the  state  of  Ohio,  shall  be  as  follows:  For  filing  copy  of  charter  or  articles  of  incor- 
poration, twenty-five  dollars;  for  filing  each  annual  statement,  twenty  dollars;  for 
issuing  certificate  of  authority  or  license  to  company  or  association,  one  dollar;  for 
issuing  license  to  each  agent,  one  dollar;  for  affixing  seal  and  certifying  any  paper, 
one  dollar.  Provided,  that  any  company  or  association  may  pay  to  the  superintendent 
the  sum  of  twenty-five  dollars  for  licenses  to  its  agents  for  the  year,  and  by  so  doing 
shall  be  entitled  without  further  charge  to  licenses  for  as  many  agents  as  it  may 
choose  to  appoint;  provided,  also,  that  when  any  other  state  or  country  shall  impose 
any  obligations  in  excess  of  those  imposed  by  this  act  upon  any  such  corporation  cf 
this  state,  a  like  obligation  shall  be  imposed  on  similar  corporations,  and  their  agents, 
of  such  state  or  country  doing  business  in  this  state;  and  provided,  also,  that  such 
corporation,  company  or  association  in  transacting  business  in  this  state  shall  be  sub- 
ject only  to  section  3630  of  the  Revised  Statutes  and  the  section(s)  supplementary 
thereto;  and  provided  further,  that  such  corporation,  company  or  association  shall  be 
authorized  to  transact  in  this  state  the  business  of  life  or  accident  or  life  and  acci- 
dent insurance  on  the  assessment  plan,  for  the  purpose  of  mutual  protection  and  relief 
of  its  members,  and  for  the  payment  of  stipulated  sums  of  money  to  the  families, 
heirs,  executors,  administrators  or  assigns  of  the  deceased  members  of  such  corpora- 
tion, company  or  association  as  the  member  may  direct,  notwithstanding  such  corpora- 
tion, company  or  association  may  have  been  organized  on  the  assessment  plan  and 


Life  I nsur 


389 


Mutual  Aid  Assjciation  ',030g. 


authorized  by  the  laws  governing  it  to  issue  policies  Insuring  lives  01 

assessment   upon  surviving  members   without   limitation.      W 

agent  of  any  such  corporation,  company  or  association  shall   !■■  'p'y 

with  or  violate  any  of  the  provisions  of  this  act,  he  shall  be  da 

demeanor,  and  upon  conviction  thereof,  shall  be  punished   by  Less  than 

one  hundred  dollars  nor  more  than  five  Inn 

county  jail   for  not  more  than  thirty  days  or  both,   at  the   discretion   of   the  court 

(March  31,   1891,  b8  v.  252;  April  18,   1883,  80  v.    179,    180;  Apr!  ,7  v. 

178,   181.) 


See  §  3631-13.  See  §  3004  and  notes  th< 

For  construction  of  section  before  amend- 
ment (88  v.  252),  sec  Slat.'  v.  Ins.  (',,.,  17  Oh. 
St.  107  (1890),  and  note  thereto  under 
§  3630. 

See  note  to  State  v.  Moore,  38  Oh.  St.  7 
(1882),  under  §§   3630  and  3630a. 

Rights   of   companies    to    admission. 

Under  the  amendment  of  April  18,  1883 
(80  v.  180),  the  insurance  commissioner  can- 
not be  compelled  to  issue  a  license  to  a  for- 
eign corporation,  doing  business  on  the  as- 
sessment plan,  where  by  the  laws  of  such 
other  states,  Ohio  companies  of  a  like  charac- 
ter are  not  as  a  matter  of  right  entitled  to 
do  business  therein. —  Ohio  ex  rel.  v.  Moore, 
39  Oh.  St.  486  (1883). 

Foreign    mutual    company    may    do    as- 
sessment  business. 

While  life  insurance  companies  organized 
in  this  state  to  do  business  on  the  mutual 
plan  have  no  authority  to  do  business  on  the 
assessment  plan,  yet  such  foreign  corporation 
having  such  power  should  be  allowed  to  do 
husiness  in  this  state.— Ohio  ex  rel.  v.  Mat- 
thews, 58   Oh.   St.   1    (1898). 

What  constitutes  assessment  insurance. 

What  constitutes  the  business  of  life  insur- 
ance '*  on  the  assessment  plan,"  within  the 
meaning  of  that  term,  as  used  in  this  section 
(3630e),  should  be  determined  by  the  laws  of 
this  state;  and  that  phrase  should  be  held  to 
contemplate  a  scheme  of  insurance  conducted 
for  the  sole  benefit  of  the  policy  holders,  the 
principal  source  of  revenue  to  arise  from  post- 

§  3630f.  WHEN  ACTION  AGAINST  SUCH  ASSOCIATION  MAY  BE 
BROUGHT. —  An  action  may  be  brought  against  any  such  corporation,  company,  or 
association,  organized  under  the  laws  of  Ohio,  or  against  any  such  foreign  corpora- 
tion, company,  or  association  doing  business  in  Ohio,  in  any  county  of  this  state  where 
such  cause  of  action  arises,  and  summons  may  be  issued  and  service  had  as  provided 
in  chapter  six,  sub-divisiens  one  and  two.  title  one,  part  third  of  the  Revised  Statutes 
of  Ohio,  the  provisions  of  which  chapter  are  hereby  made  applicable  in  such  cases, 
(April  12,  1880,  77  v.   187,  181.) 

Note. —  Chapter  six.  subdivisions  one  and  two.  title  one.  part  third  referred  to  in  this 
section  is  now  chapter  five,  sections  5032  to  5053  of  the  Revised  Slav. 

i  §   3630g.     MUTUAL    PROTECTION    ASSOCIATIONS    AND    THEIR    AGENTS; 

HOW  RESTRICTED  IN  THE  ISSUE  OF  POLICIES;  PENALTY;  ACCIDENT  COM- 
PANIES.—  No  such  corporation,  company  or  association  shall  issue  a  certificate  or 
policy  to  any  person,  until  such  person  has  been  first  subjected  to  a  thorough  medi- 


■ 

oh.  St.  1    i  L898).    s.  • 
§  3587. 

nts  of  Ohi  ■ 

-x  rel.  v.  fas.  Co.,  !7  oh.  St.  L( 

Limitation  as   to   foreign   companies. 

A  company   of  another 

''insuring    lives    on    the    plan 
upon  survh  without  limit 

'iocs  noi   come   within   tie 
provided  in  tin-  section      I 
embrace  companies  insuring  the  ':!'•■ 
bers  for  the  benefil    of  other  than   theii 
tlies  and  heirs,  re,  38  Oh 

i  1882)  ;    Ohio  ex   rel.   v.    V 

!)  :  State  v.  In-.  I  o  .   17  01 
See   not e,   supra,   to  Mutual    B 

Ass-n.  42  Oh.  st.  57'.    (1885      i  n  l< 

Also  note  amendmi  >.•    to  this  section 
provide  d   furt  hi  r.   that    su<  b   corporati   ■. 
pany,   or   association,   shall    be   autl 
transact    in   this  state,    e1  c, 
such  corporation  may    ha 
the   assessment  plan   and   authoriz 
laws   governing    it    to    i-- 
live-  on   t  in.  plan  of  irviv- 

ing  members  without  limil 

Comity  between  states. 

The  law  of  comity    is   fully 
foreign   companies   are   permitted   I 

ite  upon  th  ■  terms   prea 
for  domestic  companies. —  Stale  v.  Mo< 
b.  7.  11   (18S2). 


390  Private  Corporations  in  Ohio. 


Mutual  Protection  and  Accident  Companies,   §§  3630h,  3630i. 


cal  examination  by  a  regularly  educated  physician  and  found  to  be  a  good  risk,  nor 
to  any  person  above  the  age  of  sixty-five  years,  nor  under  the  age  of  fifteen  years. 
Any  trustees,  officer,  agent  or  employe  of  any  such  corporation,  company  or  associ- 
ation, who  shall  knowingly  insure  or  cause  or  permit  to  be  insured  any  person  with- 
out that  person's  knowledge  or  consent,  or  any  fictitious  person  or  any  person 
over  sixty-five  or  under  fifteen  years  of  age,  or  any  sickly  or  infirm  person,  or  who 
shall  issue  a  certificate  or  policy  of  insurance  for  any  such  corporation,  company  or 
association  which  has  not  complied  with  the  laws  of  this  state  and  received  from 
the  superintendent  of  insurance  a  certificate  of  such  compliance,  or  who  shall  know- 
ingly violate  any  of  the  provisions  of  section  thirty-six  hundred  and  thirty,  Revised 
Statutes,  or  the  sections  supplementary  thereto,  and  any  physician  or  other  person 
who  shall  knowingly  aid  in  or  abet  in  any  manner  any  such  trustee,  officer,  agent  or 
employe  in  effecting  such  insurance,  or  insurance  on  his  own  life,  shall  be  fined  not 
more  than  one  thousand  dollars,  nor  less  than  one  hundred  dollars,  or  imprisoned 
not  more  than  six  months,  or  both.  But  the  provisions  of  this  supplementary  section 
in  respect  to  the  age  and  medical  examination  of  persons  to  whom  certificates  or 
policies  shall  issue,  shall  not  apply  to  such  corporations,  companies  or  associations 
doing  a  purely  accident  business.     (April  17,  1885,  82  v.  138;  80  v.  179.) 

§  3630h.  EXPENSES:  HOW  PAID. —  The  expenses  of  such  corporations,  com- 
panies or  associations  shall  be  met  by  fixed  annual  payments,  or  by  assessments  made 
and  designated  to  be  for  such  expenses;  but  such  assessments  shall,  in  no  case,  be 
made  or  become  a  part  of,  any  assessments  to  pay  a  loss  by  death;  and  no  part  of 
the  mortuary  fund  shall  in  any  case  be  used  to  pay  expenses.  (April  18,  1883,  80  v. 
170.) 

§  3630i.  AGAINST  PERSONAL  INJURY  AND  LOSS  OF  LIFE;  AGAINST 
EXPENSES  AND  LOSS  OF  TIME  OCCASIONED  BY  INJURY  OR  SICKNESS;  EX- 
PENSES, HOW  MET;  EXPENSE,  LOSS,  AND  GUARANTY  FUNDS:  SEPARATION 
OF  SUCH  FUNDS;  NOTICE  TO  PERSONS  ASSESSED;  BOND  REQUIRED  ONLY 
OF  PURELY  ACCIDENT  COMPANIES. —  Companies  consisting  of  five  or  more 
citizens  of  Ohio  may  be  organized  under  this  chapter  and  section  for  the  special  pur- 
pose of  insuring  against  accidental  personal  injury  and  loss  of  life,  sustained  while 
traveling  by  railroad,  steamboat  or  other  mode  of  conveyance,  and  making  all  and 
every  insurance  connected  with  accidental  loss  of  life  and  personal  injury,  sustained 
by  accident,  of  every  description  whatever,  and  against  expenses  and  loss  of  time 
occasioned  by  injury  or  sickness,  and  on  such  terms  and  conditions,  and  for  such 
periods  of  time,  and  confined  to  such  countries  and  localities,  and  to  such  persons  as 
from  time  to  time  may  be  provided  in  the  by-laws  of  the  company;  and  the  expenses 
of  such  corporations,  companies  or  associations,  shall  be  met  by  fixed  annual  pay- 
ments, payable  quarterly  or  otherwise,  or  by  assessments  on  the  members,  payable 
as  may  be  provided  in  the  by-laws;  and  on  either  plan  there  may  be  included  in 
such  payments  or  assessments,  a  certain  per  cent,  thereof,  to  be  fixed  by  the  by-laws, 
which  when  collected,  shall  be  credited  on  the  books  of  the  company  to  the  expense 
fund,  and  the  residue  thereof  shall  be  so  credited  to  the  fund  to  pay  losses  and  create 
a  reserve  or  guarantee  fund  for  the  payment  of  losses  and  liabilities,  and  said  funds 
shall  be  kept  separate,  and  shall  never  be  interchanged  or  used  for  purposes  other 
than  those  for  which  they  were  respectively  collected  as  aforesaid;  provided,  that  the 
assessed  shall  be  notified  at  the  time  of  the  collection  of  each  payment  the  per  cent, 
thereof  that  is  collected  to  pay  expenses,  and  the  per  cent,  thereof  that  is  collected  to 
pay  losses  and  create  a  guarantee  fund;  but  nothing  herein  shall  prevent  the  com- 
pany from  distributing  to  certificate-holders  the  surplus  in  the  accident  fund  and  the 
surplus  arising  from  the  reserve  on  lapsed  and  canceled  certificates  as  provided  in  the 
by-laws  of  the  company;  and  provided,  that  companies  organized  under  the  provi- 
sions of  this  section  shall,  before  engaging  in  business  as  provided  in  this  section, 


Life  Insurance  <  ompanies.  391 


Accident  Companies,  Foreign,  g  3630J. 


execute  a  bond  in  the  sum  of  one  hundred  thousand  dollars  to  the  state  of  Oi. 
security  to  the  acceptance  and  approval  of  the  superintendent  of   i  the 

use  and  benefit  of  all  persons  holding  policies  or  certificates  in  such  company,  condi- 
tioned that  such  company  shall  credit  upon  the  books  of  said  company,  all  mos 
received  by  them  under  the  provisions  of  this  section,  keep  the  funds  sepn. 
not  use  or   interchange   them  for   purposes   (other)   than  those  for  which   they   were 
respectively   collected,   and  that  they  will  apply  and   pay   out  said  funds  to  and  for 
the  purposes  provided  for  in  this  section,  which  bond,  when  so  executed  and  appi 
shall   be    deposited    with   and   held   by   the   superintendent   of    insurance.      Provided 
further,  that  any  corporation,  company  or  association,  organized  for  the  purpose  of 
doing  a  purely  accident  insurance  business,  and  which  corporation,  company  or  asso- 
ciation, creates  a  reserve  or  guarantee  fund  from  the  premiums  collected  by  assess- 
ments or  otherwise,  as  provided  in  the  by-laws  of  the  corporation,  company  or  asso- 
ciation, shall  not  be  subject  to  the  preceding  part  of  V  is  section,  relating  to  the 
deposit  of  a  bond  in  the  sum  of  one  hundred  thousand  dollars;  but  the  treasurer  of 
all  such  corporations,  companies  or  associations  shall,  before  commencing  business, 
deposit  with  the  superintendent  of  insurance  a  bond  with  approved  securities,  to  the 
acceptance  of  said  superintendent  in  the  sum  of  ten  thousand  dollars,  for  the  use  and 
purposes  provided  in  the  preceding  portion  of  this  section;  and  every  such  corporation, 
company  or  association  shall  invest,  as  provided  in  section  3598  of  the  Revised  Stat- 
utes of  Ohio,  so  much  of  the  reserve  or  guarantee  fund,  in  excess  of  ten  thousand  dol- 
lars, as  shall  equal  at  least  two  and  one-half  per  cent,  of  all  premiums  or  assessments 
collected  from  policies  or  certificates  in  force,  on  the  last  day  of  June  and  December 
of  each  year,  until  said  reserve  or  guarantee  fund  shall  be  equal  to  two  dollars  for 
every  five  thousand  dollars  of  insurance  in  force;  securities  for  said  reserve,  as  herein 
provided,  shall  be  deposited  with  the  superintendent  of  insurance  on  the  last  day  of 
June  and  December  of  each  year,  or  within  thirty  days  thereafter,  to  be  held  by  said 
superintendent   for  the  benefit   and  protection  of  policy   or  certificate  holders.     Pro- 
vided, that  if  such  corporation,  company  or  association  shall  at  any  time  cause  all  of 
its  unexpired  policies  or  certificates  to  be  paid,  canceled  or  reinsured,  and  all  its  lia- 
bilities under  such  policies  or  certificates  thereby  to  be  extinguished,  or  to  be  assumed 
by  some  other  responsible  company  authorized  to  do  business  in  this  state,  the  super- 
intendent of  insurance  shall,   on  application  of  such  company,  verified  by  the  oath 
of  its  president  or  secretary,  and  on  being  satisfied   by  an  examination  of  its  books 
and  of  its  officers,  under  oath,  that  all  of  its  policies  or  certificates  are  so  paid,  can- 
celed,  extinguished   or  reinsured,   deliver   up  to  it  such   security.      Any  corporation, 
company  or  association,  or  officer  thereof,  violating  any  of  the  provisions  of  this  sec- 
tion, shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction  thereof  shall  be 
fined  in  any  sum  not  less  than  one  hundred  dollars  nor  more  than  one  thousand  dol- 
lars,  or  imprisoned   in  the  county  jail   where  said   officer  resides,   for  not  less  than 
thirty  days  nor  more  than  one  year,  or  both,  at  the  discretion  of  the  court.      (May  19. 
1894,  91  v.  332;  March  19,  1887,  84  v.  130.) 

§  3630J.  FOREIGN  ACCIDENT.  ETC.,  COMPANIES;  ADMISSION  TO  DO  BUSI- 
NESS.— Companies  and  associations  organized  under  the  laws  of  the  United  States 
and  of  other  states,  territories  and  nations,  and  doing  the  business  of  insuring 
against  accidental  personal  injury  and  loss  of  life,  sustained  while  traveling  by  rail- 
road,  steamboat  or  other  mode  of  conveyance,  and  making  all  and  every  insurance 
connected  with  accidental  loss  of  life  and  personal  injury,  sustained  by  accident  of 
every  description  whatever,  and  against  expenses  and  loss  of  time  occasioned  by 
injury  or  sickness,  and  on  such  terms  and  conditions,  and  for  such  periods  of  time, 
and  confined  to  such  countries  and  localities,  and  to  such  persons  as  from  time  to 
time  may  be  provided  in  the  by-laws  of  the  company;  and  where  payments  and  ex- 
penses are  met  by  fixed  annual  payments,  payable  quarterly  or  otherwise  or  by 
assessment  on  the  members,  payable  as  may  be  provided  in  the  by-laws,  or  as  pro- 


392  Private  Corporations  in  Ohio. 


Mutual  Protection  Associations  —  Bonds  of  Agents,  etc.  §  3631. 


vided  in  section  3630j  of  the  Revised  Statutes  of  Ohio,  shall  be  admitted  to  do  and 
transact  such  business  in  the  state  of  Ohio,  but  shall,  as  a  condition  precedent  to  trans- 
acting business  in  the  state,  comply  with  the  following  conditions,  to-wit:  Deposit 
with  the  superintendent  (of)  insurance  (1)  a  certified  copy  of  its  charter  or  articles  of 
incorporation;  (2)  a  certificate  from  the  insurance  commissioner,  or  superintendent  of 
its  own  state,  showing  its  authority  to  do  such  business;  (3)  a  certificate  from  said 
commissioner  or  superintendent  or  other  like  authority  of  its  own  state  that  corpora- 
tion^), companies  or  associations  of  this  state  engaged  in  the  same  or  similar  busi- 
ness, or  engaged  in  the  business  of  paying  benefits  in  the  case  of  sickness  or  disability, 
to  be  derived  from  assessments  collected  from  the  members,  are,  upon  complying  v/ith 
the  laws  of  said  state,  legally  entitled  to  do  business  in  such  state;  (4)  a  statement 
under  the  oath  of  its  president  and  secretary  or  like  officers,  in  the  form  by  the  su- 
perintendent of  insurance  required,  of  its  business,  for  the  preceding  year;  (5)  a 
certificate  under  the  oath  of  its  president  and  secretary,  or  like  officers,  that  such 
corporation,  company  or  association  is  paying,  and  for  the  twelve  months  next  pre- 
ceding has  paid  the  maximum  amount  named  in  its  policies  or  certificates;  (6)  a  copy 
of  its  policy  or  certificate,  application  and  by-laws,  which  must  show  that  the  liabili- 
ties of  the  assured  members  are  not  limited  or  fixed  or  artificial  premiums;  (7)  evi- 
dence satisfactory  to  said  superintendent  that  such  corporation,  company  or  associa- 
tion has  accumulated  and  maintained  a  fund,  securely  invested  in  securities  permitted 
by  the  laws  of  its  corporation,  not  less  in  amount  than  the  proceeds  of  one  periodical 
payment  by,  or  an  assessment  on  all  certificate  or  policy  holders  thereof,  and  that 
such  fund  is  held  solely  for  the  benefit  or  (of)  certificate  or  policy  holders  and  can  only 
be  used  for  the  purposes  provided  in  the  laws  of  the  state  where  incorporated;  pro- 
vided, that  said  fund  shall  not  be  less  than  five  thousand  dollars,  and  need  not  be 
more  than  ten  thousand  dollars;  provided,  the  license  to  do  business  in  this  state 
shall  not  be  delivered  to  any  such  corporation,  company,  or  association,  until  it 
shall  have  filed  with  the  superintendent  of  insurance  an  appointment  of  an  attorney 
within  the  state  upon  whom  service  of  process  may  be  had.  The  superintendent  of 
insurance  shall  thereupon  issue  to  such  corporation,  company  or  association  a  certi- 
ficate of  authority  to  transact  its  business  in  the  state  of  Ohio,  which  said  certificate 
of  authority  must  be  renewed  annually,  and  it  shall  be  the  duty  of  the  superintend- 
ent of  insurance  to  refuse  such  certificate  to  any  such  corporation,  company  or  associ- 
ation, when  in  his  judgment  such  refusal  will  best  promote  the  public  interest;  pro- 
vided, that  all  decisions  by  him  made  shall  be  subject  to  review  by  courts  of  com- 
petent jurisdiction.     (May   10,    1902,   95  v.   520.) 

§  3631.  NO  AGENT  TO  COLLECT  DUES  WITHOUT  GIVING  BOND;  BOND  OF 
TREASURER,  OF  ASSOCIATION. —  No  agent  or  officer  of  any  such  corporation,  com- 
pany or  association  shall  be  permitted  to  collect  or  receive  any  dues,  assessments,  or 
donations  for  or  on  account  of  the  same,  until  he  executes  jointly,  with  two  respon- 
sible sureties,  a  bond  to  the  corporation,  company,  or  association,  to  the  approval  of 
the  trustees  thereof,  in  such  sum  as  they  shall  prescribe,  conditioned  for  the  payment 
of  all  such  dues,  assessments,  and  donations  over  to  the  proper  officer  of  the  com- 
pany; and  all  receipts  of  any  such  company  or  association  shall  be  paid  into  the  hands 
of  the  treasurer  thereof,  who  shall,  before  assuming  the  duties  of  his  office,  give  bond 
in  the  sum  of  not  less  than  ten  thousand  nor  more  than  fifty  thousand  dollars,  as  the 
said  superintendent  may  determine,  with  not  less  than  three  sureties  to  be  approved 
by  the  superintendent  of  insurance,  and  conditioned  for  the  faithful  accounting  for, 
and  proper  payment  and  disbursement  to  the  legitimate  purposes  of  the  company  or 
association  of  all  the  money  thereof,  which  comes  into  his  hands.  Said  bond  of  the 
treasurer  shall  be  examined,  as  to  its  sufficiency,  annually,  and  shall  be  renewed  when- 
ever the  superintendent  of  insurance  shall  require,  and,  with  the  approval  of  the 
superintendent  of  insurance  indorsed  thereon,  shall  be  filed  with  the  secretary  of 
state.     (April  12,  1880,  77  v.  178,  181;  February  3,  1875,  72  v.  23,  §  4.) 


I  .11  i:    l.\Mk.' 


393 


Mutual  Benefit  Societies  —  Discrimination,  etc., 


§    3631a.     MUTUAL  BENEFIT,   ETC.,  SOCIETIES  EXCEPTED.—  '; 
sees.  3630a,  3630b,  3630c,  3630d,  3630e,  3630f, 
ciation  or  (of)  religious  or  secret  societies  or  to  any  class  ol   m 
graph  or  railroad  employes,  or  ex-union  soldiers,  formed  for  thi 
members  thereof,  and  their  families  or  blood  relatives  exclu 
table  purposes;  provided,   that  any  such  association  or  class   \ 
become  subject  to  the  provisions  of  sections  3630a,  3630c  and 
Statutes  of  Ohio,  may  file  with  the  superintendent  of  insurance  notice  in  v.. 
such  desire,  signed  by  the  president  of  such  association  or  class,  and  attest' 
secretary  thereof;  and  thereupon  such  association  or  class  shall  become  subj- 
the  terms  and  provisions  of  said  sections   3630a,  3630c  and  3630d   of  said   R 
Statutes;  the  superintendent  of  insurance  shall  thereupon  immediately  provide  such 
association  or  class  with  proper  blanks  for  furnishing  the  statement  of  the  ( 
of  such  association  or  class,  as  provided  in  said  section  3630a,  and  such  associate 
class  shall  make  such  report  within  sixty  days  thereafter,  and  thenceforward,  n: 
ally,  as  in  case  of  other  insurance  companies,  which  report  shall  be  included  by  said 
superintendent  of  insurance  in  his  annual  tabulated  report,  in  the  same  manner  as  the 
reports  of  other  companies  and  subject  to  the  fees  prescribed  in  section   282  of  the 
Revised  Statutes  of  Ohio;  provided  further,  that  the  treasurer  of  any  association  or 
class  which  shall  avail  itself  of  the  benefits  of  this  enactment  shall  be  required  to 
give  bond  in  the  same  manner  as  is  provided  in  section  3631,   Revised   Statutes  of 
Ohio;  said  bond  to  be  conditional,  approved  and  renewed  as  provided  in  said  section. 
(April  16,  1900,  94  v.  354;  April  11,  1890,  87  v.  170;  March  14,  1889,  86  v.  89;  April 
12,   1880,  77  v.   178,   §  8.) 


Railway  relief  association. 

An  association  created  by  a  railway  com- 
pany for  the  relief  of  its  employees  is  gov- 
erned by  tlrs  section  —  Gearen  v.  B.  &  0. 
Ry.  Co.,  19  W.  L.  B.  293  (1888). 

Acceptance  of  benefits  no  bar  to  action 
for  damages. 

A  railway  employee,  being  a  member  of  the 
company's  relief  association,  was  killed; 
widow  accepted  the  benefits  of  the  associa- 
tion; held  not  to  be  a  bar  to  an  action  by  her 
as  administratrix  for  damages. —  Baltimore  & 
Ohio  R.  R.  Co.  v.  McCamly,  12  C.  C.  543 
(1896). 

Rule    prohibiting    appeal   to    court,   not 
valid. 

One  of  the  rules  in  the  relief  department  of 


a    railroad  provided    that   the 
advisory  committee   a-   to   ''aim-    I 
should  he  final ;  held,  i  hat   upon  thi    i 
by  the  committee  of  a   valid  claim,  the  I 
ficiary   could  maintain  an  action.      R     i 
v.  Stankard  <  t  al  .  56  Oh.  St.  224       : 
see  notes  under  §  3631-11. 

Certificate  payable  to  father  before 
marriage;  after  marriage,  widow  en- 
titled to  same. 

A    member    of    the    Brotherhood    of 
motive  Firemen  held,  befoi  e  marria  e 
ficate  payable    to   his    father.     Tin-   -mi    after- 
ward   married ;    held,    the    eei  I 
be  payable   to  the   widow. —  Let!    v.    Bi 
li 1   of  Locomotive  Firemen.  44  W.  L.   I 


§   3631-1.     Sec.    1.     INSURANCE    COMPANIES    FORBIDDEN    TO     DISCRIMI- 
NATE   AGAINST   PERSONS   OF   AFRICAN    DESCENT   IN    PREMIUMS.— No    life 
insurance  company  now  organized  or  doing  business,  or  that  may  hereafter  be  or 
ized  and  do  business  within  this  state,  shall  make  any  distinction  or  discrimination 
between  white  persons  and  colored,  wholly  or  partially  of  African  descent,  as  to  pre- 
miums or  rates  charged  for  policies   upon  the  lives  of  such  persons;  nor   shall  any 
such  company  demand  or  require  greater  premiums  from  such  colored  persons  tha 
are  at  that  time  required  by  such  company  from  white  persons  of  the  same  age.  sex. 
general  condition  of  health  and  hope  of  longevity;  nor  shall  any  such  company  mat 
or  require  any  rebate,  diminution  or  discount  upon  the  sum  to  be  paid  on  such  policy 
in  case  of  the  death  of  such  colored  person  insured,  nor  insert  in  the  policy  any  con- 
dition, nor  make  any  stipulation  whereby  such  person  insured  shall  bind  himself  or 
his  heirs,  executors,  administrators  and  assigns  to  accept  any  sum  less  than  the  full 
value  or  amount  of  such  policy  in  case  of  a  claim  accruing  thereon  by  reason  of  the 


394  Private  Corporations  in  Ohio. 


Discrimination  as  to  Insurants,  §§  3631-2-3631-6. 


death  of  such  person  insured,  other  than  such  as  are  imposed  upon  white  persons 
in  similar  cases;  and  any  such  stipulation  or  condition  so  made  or  inserted  shall  be 
void.     (March  28,  1889,  86  v.  163.) 

§  3631-2.  Sec.  2.  WHAT  SHALL  BE  DONE  WHEN  APPLICATION  OE  PER- 
SONS OF  COLOR  IS  REFUSED. —  Any  such  company  which  shall  refuse  the  applica- 
tion of  any  such  colored  person  for  insurance  upon  such  person's  life,  shall  furnish 
such  person  with  the  certificate  of  some  regular  examining  physician  of  such  com- 
pany who  has  made  examination  of  such  person,  stating  that  such  person's  applica- 
tion has  been  refused,  not  because  such  person  is  a  person  of  color,  but  solely  upon 
such  grounds  of  the  general  health  and  hope  of  longevity  of  such  person  as  would  be 
applicable  to  white  persons  of  the  same  age  and  sex.  (March  28,  1889,  86  v.  163, 
164.) 

§  3631-3.  Sec.  3.  PENALTY  FOR  VIOLATING  THIS  ACT.— Any  corporation, 
or  the  officer  or  agent  of  any  corporation,  violating  any  of  the  provisions  of  this  act, 
either  by  demanding  or  receiving  from  such  colored  person  such  different  or  greater 
premium,  or  by  allowing  any  discount  or  rebate  upon  the  premium  paid  or  to  be  paid 
by  white  persons  of  the  same  age,  sex,  general  condition  of  health  and  hope  of  lon- 
gevity, or  by  making  or  requiring  any  rebate,  diminution  or  discount  upon  the  sum 
to  be  paid  upon  a  policy  in  case  of  the  death  of  such  colored  person  insured,  or  by 
failing  to  furnish  the  certificate  required  by  section  second,  shall  for  each  offense  be 
fined  not  less  than  one  hundred  nor  more  than  two  hundred  dollars.  But  nothing 
in  this  act  shall  be  so  construed  as  to  require  any  agent  or  company  to  take  or  receive 
the  application  for  insurance  of  any  person.     (March  28,  1889,  86  v.  163,  164.) 

§  3631-4.  Sec.  1.  PREMIUMS  FOR  LIFE  OR  ENDOWMENT  INSURANCE; 
UNLAWFUL  TO  DISCRIMINATE. —  No  life  insurance  company  doing  business  in 
Ohio,  shall  make  or  permit  any  distinction  or  discrimination  in  favor  of  individuals 
between  insurants  of  the  same  class  and  equal  expectation  of  life  in  the  amount  or 
payment  of  premiums,  or  rates  charged  for  policies  of  life  or  endowment  insurance, 
or  in  the  dividends  or  other  benefits  payable  thereon,  or  in  any  other  of  the  terms 
and  conditions  of  the  contract  it  makes;  nor  shall  any  such  company,  or  any  agent 
thereof,  make  any  contract  of  insurance,  or  agreement  as  to  such  contract,  other  than 
is  plainly  expressed  in  the  policy  issued  thereon;  nor  shall  any  such  company  or 
agent  pay  or  allow,  or  offer  to  pay  or  allow,  as  inducement  to  insurance,  any  rebate 
cf  premium  payable  on  the  policy,  or  any  special  favor  or  advantage  in  the  dividends 
or  other  benefits  to  accrue  thereon,  or  any  valuable  consideration  or  inducement  what- 
ever not  specified  in  the  policy  contract  of  insurance.  (April  27,  1893,  90  v.  345; 
April  10,   1889,  86  v.  220.) 

§  3631-5.  Sec.  2.  PENALTY  FOR  VIOLATION  BY  CORPORATION  OF  PRO- 
VISIONS OF  THIS  ACT. —  Every  corporation  which  shall  violate  any  of  the  provi- 
sions of  this  act  shall  be  fined  in  any  sum  not  less  than  one  hundred  dollars  nor 
exceeding  five  hundred  dollars,  to  be  recovered  by  action  in  the  name  of  the  state, 
and  the  amount  so  recovered  shall  be  paid  into  the  county  treasury  for  the  benefit  of 
the  common  school  fund.      (April  27,  1893,  90  v.  345;  April  10,  1889,  86  v.  220.) 

8  3631-6.     Sec.  3.     VIOLATION  BY  OFFICER  OR  AGENT  OF  CORPORATION. 

—  Every  officer  or  agent  of  any  such  corporation  who  shall  violate  any  of  the  provi- 
sions of  this  act,  shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon  conviction 
thereof,  shall  be  fined  in  any  sum  not  less  than  one  hundred  dollars  nor  exceeding 
five  hundred  dollars,  or  imprisonment  in  the  jail  of  the  county  not  exceeding  thirty 
days,  or  both,  at  the  discretion  of  the  court,  and  shall  pay  the  costs  of  prosecution. 
(April  27,  1893,  90  v.  345.) 


Life  Insurance  Comp     i  es.  395 


Stock  in  other  Companies  —  Fraternal  Companies,   etc.,   H   '■'■ 


§   3631-7.     Sec.   4.     REVOCATION  OF  LICENSE  FOR  VIOLATION       It.  shall  be 
the  duty  of  the  superintendent  of  insurance,  upon  being  satisfied  tl 
poration,  or  any  agent  thereof,  has  violated  any  of  the  provisions  of  this  net.  I 
the  license  of  the  company,  or  agent,  so  offending,  and  no  license  shall   be   granted 
to   such   company,   or   agent,   for   one  year  after  such   revocation.     (April    'Zl ,    1 
90  v.  345.) 

§  3631-8.     Sec.  1.     CERTAIN  INCORPORATED  COMPANIES  MAY  PURCHASE 
AND    OWN   STOCK   IN    OTHER   COMPANIES.— Whenever   any    incor; 
pany  organized  under  the  laws  of  the  state  of  Ohio,  and  having  a  capi  in- 

cluding corporations  organized  as  provided  in  section  thirty-eight  hundred  and  sixty- 
eight,  Revised  Statutes,  and  the  acts  amendatory  and  supplementary  thereto,  is  or- 
ganized for  the  purpose  of  erecting  and  maintaining  a  building,  any  portion  of  which 
is  intended  for  or  to  be  occupied  by  two  or  more  incorporated  companies  not  having  a 
capital  stock,  including  religious,  scientific,  and  beneficial  associations  heretofore 
incorporated  under  the  provisions  of  sections  sixty-six  to  seventy  of  "  an  act  to  piv 
fer  the  creation  and  regulation  of  incorporated  companies  in  the  state  of  0!. 
passed  May  1,  1852,  and  the  several  acts  supplementary  and  amendatory  thereto,  as 
a  lodge-room,  chapel,  or  regular  place  of  meeting  for  their  members,  the  said  incor- 
porated companies,  societies  or  benevolent  associations  may  each  subscribe  for,  pur- 
chase or  become  the  owner  or  owners,  by  donation  or  otherwise,  of  the  whole  or  any 
portion  of  the  capital  stock  of  said  incorporated  company  organized  for  the  purpose 
of  erecting  and  maintaining  such  building  aforesaid.     (April  18,  1883,  80  v.  177.) 

§  3631-9.  Sec.  2.  TO  BE  LIABLE  IN  CORPORATE  CAPACITY  SAME  AS 
INDIVIDUALS. —  That  each  of  said  incorporated  companies,  societies  and  associa- 
tions shall  be  liable  in  its  corporate  capacity  for  and  on  their  respective  shares  of  said 
capital  stock  so  subscribed,  purchased,  and  owned  by  it  the  same  as  if  the  same  were 
held  and  owned  by  an  individual.     (April  18,  1883,  80  v.  177.) 

§  3631-10.  Sec.  3.  DIRECTORS;  WHEN  AND  HOW  ELECTED.— That  when- 
ever two  or  more  of  such  incorporated  companies,  societies,  or  benevolent  associations 
shall  subscribe,  purchase  or  own  all  the  capital  stock  of  said  incorporated  company 
organized  for  the  purpose  of  erecting  and  maintaining  such  building,  each  of  said 
incorporated  companies,  societies  or  benevolent  associations,  shall  elect  three  mem- 
bers of  its  company,  society  or  association  to  act  as  directors  of  said  incorporated 
company  as  soon  as  all  the  stock  is  subscribed  and  ten  per  cent,  is  paid,  and  shall 
thereafter  at  its  first  stated  meeting  in  January  of  each  year,  elect  three  such  direct- 
ors. That  the  directors  so  elected  and  their  successors  in  office  shall  comprise  the 
board  of  directors  of  said  incorporated  company,  and  have  all  the  powers  conferred 
by  law  on  the  directors  of  incorporated  companies  having  ^a  capital  stock,  and  said 
directors  need  not  be  the  owners  or  holders  of  any  of  the  capital  stock  of  said  cor- 
poration.    (April  18,  1883,  80  v.  177.) 

§  3631-11.  Sec.  1.  FRATERNAL  BENEFICIARY  ASSOCIATION  DEFINED; 
AS  TO  BENEFITS  IN  DETAIL. —  A  fraternal  beneficiary  association  is  hereby 
declared  to  be  a  corporation,  society  or  voluntary  association,  formed  or  organized  and 
carried  on  for  the  sole  benefit  of  its  members  (and)  their  beneficiaries.  Each  associa- 
tion shall  have  a  lodge  system,  with  ritualistic  form  of  work  and  representative  form 
of  government,  and  may  make  provision  for  the  payment  of  benefits  in  case  of  death, 
sickness,  temporary  or  permanent  physical  disability,  either  as  the  result  of  disease, 
accident  or  old  age,  provided  the  period  of  life  at  which  payment  of  physical  dis- 
ability benefits  on  account  of  old  age  commences,  shall  not  be  under  seventy  C70) 
years.  Each  association  or  order  may  also  make  provision  for  withdrawal  of  those 
of  its  members  unable  or  unwilling  to  continue  their  payments  at  any  time  after  two 
years   of  membership,   provided,  however,   that  such  withdrawal  benefits   shall  not 


396 


Private  Corporations  in  Ohio. 


Fraternal  Beneficiary  Associations,   §   3631-12. 


exceed  the  amount  contributed  by  such  members,  and  it  may  also  make  provisions 
for  the  payment  of  final  benefits,  at  any  time  after  ten  years  of  membership,  as  may 
be  provided  by  its  constitutional  laws.  The  fund  from  which  the  payment  of  such 
benefits  shall  be  made,  and  the  fund  from  which  the  expenses  of  any  such  association 
shall  be  defrayed  shall  be  derived  from  assessments,  dues  or  other  payments  col- 
lected from  its  members.  Payments  of  death  benefits  shall  be  to  the  families,  heirs, 
blood  relatives,  affianced  husband  or  affianced  wife  of,  or  to  persons  dependent  upon 
the  members.  Such  associations  shall  be  governed  by  this  act,  and  shall  be  exempt 
from  the  provisions  of  the  insurance  laws  of  this  state,  and  no  law  hereafter  passed 
shall  apply  to  them  unless  they  be  expressly  designated  therein.  Any  such  society, 
order  or  association  may  create,  maintain  and  disburse  a  reserve  fund  in  accordance 
with  its  constitutional  by-laws.  Such  reserve  fund  (if  any),  shall  represent  certain 
prescribed  accumulations  or  percentages  retained  for  the  benefit  of  the  members  or 
their  beneficiaries,  and  no  part  thereof  shall  be  used  for  expenses.  (April  27,  1896, 
92  v.  360.) 


Limitation  as  to  benecciary. 

An  association,  whose  charter  provides  that 
it  may  provide  aid  for  its  members  and  their 
dependents,  is  not  authorized  to  issue  a  cer- 
tificate payable  to  one  not  dependent  upon  a 
member. —  McGunness  v.  Supreme  Council,  59 
Oh.   St.  531    (1S9S). 

Not  an  insurance  company, 
i     A   benefit   association    is   not   an    insurance 
company. —  MeGunness    v.    Supreme    Council. 
59   Oh.   St.    531-537    (1898);    Martin   v.    Stub- 
bings.  120  111.  3S7   (1888). 

Must   exhaust  remedies   of   order. 

Member  must  exhaust  his  remedies  in  the 
order  before  he  can  have  recourse  to  courts. 
— ■  Cincinnati  Lodge  v.  Littleburv,  G  W.  L.  B. 
237  (1880);  Slate  v.  Knights  Golden  Rule,  10 
W.  L.  B.  2   (1883)  :  Myers  v.  Jenkins.  44  W.  L. 

B.  212   (1900):  Schrvver  v.  Columbian  Lodge, 
3  C.  C.  422   (1S88). 

Determination   of  order   conclusive. 

The  determination  of  the  matter  in  contro- 
versy by  the  lodge  and  its  tribunals,  in  sub- 
stantial accordance  with  the  laws  of  the  order, 
will  be  final  and  conclusive. —  Myers  et  al.  v. 
Jenkins.  44  W.  L.  lb  212  (1900):  Cincinnati 
Lodge  v.  Littleburv.  0  W.  L.  B.  237  (18S0); 
Pvre  v.  Relief  Ass'n,  90  Cal.  240  (1891): 
Schrvver  v.  Columbia  Lodge,  3  C.  C.  422 
(1888).  Bnl  see  R.  lb  bo.  v.  Stankard  et  al., 
under   §   3631a;    Steuve   v.  Grand  Lodge,  5  C. 

C.  471  (1891);  s.  c,  3  C.  D.  231. 

Refusal  of  order  to  determine  demand. 

Upon  the  refusal  or  neglect  of  the  order  to 
have  tne  right  to  benefits  determined  in  sub- 
stantial accordance  with  the  laws  of  the  order, 


or  upon  refusal  to  pay  after  the  same  have 
been  awarded,  then  an  action  may  be  main- 
tained.—  Myers  et  al.  v.  Jenkins,  Admr.,  44 
W.  L.  B.  212   (1900). 

Waiver  of  appeal  to  courts,  void. 

A  contract  in  advance  to  renounce  and 
waive  one's  right  to  appeal  to  the  courts  is 
void  and  of  no  effect. —  Mvers  et  al.  v.  Jen- 
kins. Admr..  44  W.  L.  B. '212  (1900);  Balti- 
more, etc..  R.  R.  Co.  v.  Stankard,  56  Oh.  St. 
224  (1897);  Myers  v.  Lucas,  16  C.  C.  546 
(1898);   s.  c,  8  C.  D.  431. 

Members'     rights     subject     to     rules     of 
order. 

Member  becomes  subject  to  rules  of  order 
and  cannot  apply  to  courts  for  relief  unless 
there  has  been  some  invasion  of  some  prop- 
erty right  of  his,  as  by  some  breach  of  con- 
tract made  with  him,  or  by  some  action  done 
without  authority. —  Steuve  v.  Grand  Lodge. 
5  C.  C.  471   (1891);  s.  c,  3  C.  D.  231. 

Distribution   of  funds   upon   dissolution 
or  insolvency. 

Schroeder  v.  Iron  Hall,  7  N.  P.  243  (1895); 
s.  c,  1  Dec.  408;  Mutual  Aid  Ass'n,  In  re  dis- 
solution. 3  X.  P.  145  (1895)  :  s.  c,  4  Dec.  272; 
(Oilier  v.  Benf.  Assn.  1  W.  L.  B.  IS   (1876). 

See  two  recent  cases,  one  denying,  the  other 
affirming,  the  right  to  resort  to  courts. — 
Hemheau  v.  Maccabees,  49  L.  R.  (Mich.)  592 
(1900);  Order  of  Select  Friends  v.  Raymond, 
10   L.  R.  A.   (Kan.)    3,3   (1900). 

As  to  power  of  expulsion,  remedy  for  wrong- 
ful expulsion,  etc.,  see  notes  to  §  3630. 

See  generallv  notes  to  §  3G30;  Steuve  v. 
Grand  Lodge,  5  C.  C.  471;  s.  c,  3  C.  D.  231, 
and   10  Y\Ol.   B.   365.       . 


§  3631-12.  Sec.  2.  CONDITIONS  UPON  WHICH  SOCIETY,  ORDER  OR  ASSO- 
CIATION, WHICH  HAS  BEEN  OPERATING,  MAY  CONTINUE.— Any  society, 
order  or  association  of  this,  or  any  other  state,  province  or  territory,  now  operating 
in  this  state,  and  having  lodges,  councils  or  branches  duly  established  or  organized 
in  this  state,  may  continue  their  business,  provided  that  they  hereafter  comply  with 
the  provisions  of  this  act  regulating  annual  reports  and  the  designation  of  the  super- 
intendent of  insurance  as  the  person  upon  whom  process  may  be  served  as  herein- 
after provided.     (April  27,  1896,  92  V.  360.) 


Life  Insui  397 


Fraternal  Beneficiary  Association 


§    3631-13.     Sec.    3.     CONDITIONS    UPON    WHICH     FOREIGN     .. 
ADMITTED. —  Any  association  operating  within  the  descriptii 
tion  3631-11  of  the  Revised  Statutes  of  Ohio,  organized  under  the   I 
state,    province    or    territory,    and   not   now    doing   busim 
admitted  to  do  business  within  this  state  when  it  shall   have  I 
tendent  of  insurance  a  duly  certified  copy  of  its  charter  and  arti 
a  copy  of  its  constitution  or  laws,  certified  to  by  its  secretary  or  correapondli 
together  with  an   appointment   of  the  superintendent   of  insurance   of    I  .   as 

the  person  upon  whom  process  may  be  served  as  hereinafter  provided; 
that  such  association  shall  be  shown  by  certificate  to  be  authorized  to  do  bu 
the  state,  province  or  territory  in  which  it  is  incorporated  or  organized  in  case  the 
laws  of  such  state,  province  or  territory  shall  provide  for  such  authorization  and  in 
case  the  laws  of  such  state,  province  or  territory  do  not  provide  for  any  formal  au- 
thorization, to  do  business  on  the  part  of  any  association,  then  such  association  shall 
be  shown  to  be  conducting  its  business  in  accordance  with  the  provisions  of  this  act. 
for  which  purpose  the  superintendent  of  insurance  of  this  state  may  personally,  or  by 
some  person  to  be  designated  by  him,  examine  into  the  condition,  affairs,  character 
and  business  methods,  accounts,  books  and  investments  of  such  association  at  its 
home  office,  which  examination  shall  be  made  within  thirty  days  after  demand  theie- 
for,  and  the  expense  of  such  examination  and  of  all  examinations  of  associations 
of  this  or  any  other  state  shall  be  paid  by  the  state  treasurer  on  the  warrant  of 
the  state  auditor  upon  the  certificate  of  the  superintendent  of  insurance;  provided, 
that  the  expenses  of  any  examination  made  upon  the  demand  of  an  association  shall 
be  paid  by  it;  and  provided,  also,  that,  when  the  laws  of  any  other  state  or  district 
require  or  permit  examinations  of  associations  of  this  state  to  be  made  by  the  insur- 
ance department  or  any  other  authority  of  such  state  or  district  at  the  expense  of 
such  association,  then  the  expense  of  all  examinations  made  by  the  insurance  depart- 
ment of  this  state  of  associations  of  such  other  state  or  district  shall  be  charged  to 
and  collected  from  such  associations.  (May  12,  1902,  95  v.  606;  April  27.  1896. 
92  v.  360.) 

Failure  to  comply  with  conditions  does  not  render  certificate  void. 
Klinckhammer  Brewing  Co.  v.  Cassman  et  al..  21  C.  C.  465    (1900),  reversii 

dismissed  in  Supreme  Court,  44  W.  L.  B.  186. 

§  3631-14.  Sec.  4.  ANNUAL  REPORT  OF  ASSOCIATIONS.—  Every  such  asso- 
ciation doing  business  in  this  state  shall,  on  or  before  the  first  day  of  March  of  each 
year,  make  and  file  with  the  superintendent  of  insurance  of  this  state,  a  report  of  its 
affaire  and  operation  during  the  year  ending  on  the  thirty-first  day  of  December  im- 
mediately preceding,  which  annual  report  shall  be  in  lieu  of  all  other  reports  required 
by  any  other  law.  Such  report  shall  be  upon  blank  forms,  to  be  provided  by  the 
superintendent  of  insurance,  or  may  be  printed  in  pamphlet  form,  and  shall  be  veri- 
fied under  oath  by  the  duly  authorized  officers  of  such  association,  and  shall  be  pub- 
lished, or  the  substance  thereof,  in  the  annual  report  of  the  superintendent  of  insur- 
ance, under  a  separate  part,  entitled  "  fraternal  beneficial  associations,"  and  shall 
contain  answers  to  the  following  questions: 

I.     INCOME  DURING  THE  YEAR. 

Amount  received  for  assessments 3 

Rents,  interest  and  dividends  on  stocks  and  bonds 

All    other    sources,    viz 

Total  amount  received  during  the  year 


398  Private  Corporations  in  Ohio. 


Fraternal  Beneficiary  Associations,   §  3631-15. 


II.  EXPENDITURES  DURING  THE  YEAR. 

Benefits,  losses  and  claims  paid $  •  • 

Sick  benefits  paid 

Salaries  and  other  compensation  of  officers  and  for  clerical  force 

Paid  for  rent 

Paid  for   office   expenses,   lodge   supplies,    organization   of   lodges   or 
branches;  of  building  up  the  same,  printing,  advertising  and  all 

other  expenditures 

Total  amount  of  expenditures  during  the  year 

III.     ASSETS. 

Bonds  and  stocks $ 

Loans  on  mortgages,  evidenced  by  notes  and  otherwise 

Loans  on  other  collateral  and  security 

Real   estate 

C  ash  in  bank • 

Securities  deposited  in  different  states,  if  any 

Total  other  assets,  viz 

Total    assets • 

IV.     LIABILITIES. 

Losses  f.nd  claims  due  and  unpaid No $ 

Losses  and  claims  reported  but  not  due No 

Salaries  due  and  unpaid ■ 

Due  for  borrowed  money.  , 

All  othsr  liabilities,  viz 

Total    liabilities 

V.     EXHIBIT  OF  MEMBERSHIP. 
Membership  and  amount  in  force  at  the  end  of  the  year  preceding,  for 

which  this  report  is  made No $ 

Give  number  of  members   and  amount  of   certificates  issued  during 

the    year No 

Total  during  the  year No 

Deduct  members  and  amount  of  certificates  retiring  by  withdrawal 

or  suspension  during  the  year No 

Deduct  members  who  have  died  during  the  year,  and  face  amount  of 

certificates    paid No 

Total  members  in  good  standing  Dec.  31, 189  .  .  No 

(April  27,  1896,  92  v.  360.) 

§  3631-15.  Sec.  5.  AS  TO  PROCESS. —  Each  such  association  now  doing,  or  here- 
after admitted  to  do  business  within  this  state  and  not  having  its  principal  office 
within  this  state,  and  not  being  organized  under  the  laws  of  this  state,  shall  appoint 
in  writing  the  superintendent  of  insurance  or  his  successors  in  office,  to  be  its  true 
and  lawful  attorney,  upon  whom  all  lawful  process  in  any  action  or  proceeding 
against  it  may  be  served,  and  in  such  writing  shall  agree  that  any  lawful  process 
against  it,  which  is  served  on  said  attorney,  shall  be  of  the  same  legal  force  and 
validity  as  if  served  upon  the  association,  and  that  authority  shall  continue  in  force 
so  long  as  any  liability  remains  outstanding  in  this  state.  Copies  of  such  certifi- 
cate, certified  by  said  superintendent  of  insurance,  shall  be  deemed  sufficient  evi- 
dence thereof  and  shall  be  admitted  in  evidence  with  the  same  force  and  effect  as  the 


Life  Insuran<  e  I  i  »mp  .    i  399 


Fraternal  Beneficiary  Associations,   88   3631-16,  3631    l. 


original   thereof   might   be  admitted.     Service   upon   such    attorney   shall    1. 

sufficient  service  upon  such  association.     When  legal  process  a  ,ao- 

ciation  is  served  upon  said  superintendent  of  insurance,   ho  shall   Im  *  if y 

the  association  of  such  service  by  letter,  prepaid  and  directed  to  its  secretary  or  i 

responding  officer,  and  he  shall,  within  two  days  after  such  service,  forward   in 

same  manner,  a  copy  of  the  process  served  on  him  to  sue 

such  process  so  served  shall  pay  to  the  superintendent  of  insurance,  a1 

such  service,  a  fee  of  two  dollars  ($2),  which  shall  be  recovered  by  him  as  a  part  of 

the  taxable  costs,  if  he  prevails  in  the  suit.     Superintendent  of  Insurance  shall   k 

a  record  of  all  processes  served  upon  him,  which  record  shall  si  'ay  and  hour 

when  such  service  was  made,  and  by  whom  made.     (April  27,  1896,  92  v.  360.) 

I  §  3631-16.     Sec.  6.     PERMIT  TO  DO  BUSINESS;  FEE;  ANNUAL  FEE  THERE- 

AFTER.—  Superintendent  of  insurance  of  this  state  shall,  upon  the  application  of  any 
association  having  a  right  to  do  business  within  this  state,  as  provided  by  this  act, 
issued  to  such  association,  a  permit  in  writing,  authorizing  such  association  to  do 
business  within  this  state,  for  which  certificate  and  all  proceedings  in  connection 
therewith,  such  association  shall  pay  to  said  superintendent  a  fee  of  twenty-five  dol- 
lars ($25).  This  fee  shall  be  paid  annually  thereafter  when  report  is  filed.  (April 
27,  1896,  92  v.  360.) 

§  3631-17.  Sec.  7.  PROCEDURE  AND  REQUIREMENTS  IN  FORMATION  OF 
ASSOCIATION;  ANNUAL  MEETINGS  FOR  ELECTION  OF  MANAGERS  OR 
TRUSTEES. —  Seven  or  more  persons,  citizens  of  the  United  States,  and  a  majority 
of  whom  are  citizens  of  this  state,  who  may  desire  to  form  a  fraternal  beneficia-y 
association,  as  defined  by  this  act,  may  make,  sign,  seal  and  acknowledge  before  some 
officer  competent  to  take  the  acknowledgment  of  deeds,  a  certificate  in  writing  in 
which  shall  be  stated: 

(A)  The  names   and  places  of  residence   of  applicants. 

(B)  Proposed  corporate  name  of  the  association,  which  shall  not  too  closely 
resemble  the  name  of   any  other  similar  organization. 

(C)  The  object  or  purpose  for  which  the  incorporation  is  sought,  which  shall  not 
include  more  liberal  powers  than  are  granted  by  this   act. 

(D)  Location  of  the  principal  office  of  the  corporation. 

(E)  Number  of  trustees,  directors,  or  similar  officers  and  their  names,  who  sha'l 
manage  the  concerns  of  the  corporation  for  the  first  year,  or  until  the  ensuing  annuf  1 
meetings. 

Meetings  for  the  election  of  managers  or  trustees  shall  be  held  annually,  and  as 
far  as  possible  during  the  month  of  January  of  each  year,  according  to  the  regula- 
tions of  the  constitution  and  laws  of  the  association.  When  the  said  certificate  has 
been  duly  signed  and  acknowledged  by  the  incorporators  thereof,  it  shall  be  sub- 
mitted to  the  attorney-general  for  his  approval  in  conformity  with  this  act.  and  after 
the  said  approval  shall  have  been  indorsed  thereon,  shall  be  duly  recorded  in  the 
county  in  which  the  home  office  of  the  corporation  is  located,  and  a  certified  copy 
thereof  immediately  forwarded  to  the  superintendent  of  insurance  with  a  certified 
list  of  officers  in  charge  of  the  association,  with  their  residences  and  the  location  of 
the  home  ofiice.  In  addition  to  this  proof,  satisfactory  to  said  superintendent 
insurance,  shall  be  furnished  by  two  of  the  officers  of  the  said  association. 
at  least  one  hundred  subscribers  for  certificates  of  membership  have  been  secured  in 
said  association,  and  that  there  has  been  deposited  to  the  credit  of  said  association  f< 
the  payment  of  death  and  other  claims,  and  which  amount  can  not  be  used  for 
expenses,  the  sum  of  five  thousand  dollars,  which  sum,  if  advanced  by  the  trustees, 
officers  or  directors,  may  be  repaid  to  them  from  time  to  time  from  the  proceeds  of  an 
expense  fund  to  be  created  for  this  purpose.     Associations  of  this  state  of  similar 


400 


Private  Corporations  in  Ohio. 


Fraternal  Beneficiary  Associations,    §§   3631-18-3631-20. 

character  to  those  denned  by  this  act,  may  by  resolution  of  their  present  board  of 
managers  or  trustees,  incorporate  under  this  act,  as  herein  provided,  and  the  corporate 
existence  of  which  shall  then  and  there  continue  as  if  such  association  had  been 
originally  incorporated  under  the  same.      (April  27,  1896,  92  v.  360.) 

§  3631-18.  Sec.  8.  BENEFITS  NOT  LIABLE  TO  ATTACHMENT,  SEIZURE, 
ETC. —  The  money  or  other  benefit,  charity,  relief  or  aid  to  be  paid,  provided  or 
rendered  by  any  association  authorized  to  do  business  under  this  act  shall  not  be 
liable  to  attachment  by  a  trustee,  garnishee,  or  other  process,  and  shall  not  be  seized, 
taken,  appropriated  or  applied  by  any  legal  or  equitable  process,  or  by  operation  of 
law,  to  pay  any  debt  or  liability  of  a  certificate  holder,  or  of  any  beneficiary  named 
in  a  certificate,  or  any  person  who  may  have  any  rights  thereunder.  (April  27,  1896, 
92  v.    360.) 


Construction  of  statute. 

The  exemption  provided  in  this  section  is  to 
prevent  the  appropriation  of  the  funds  for  the 
payment  of  debts  of  the  holder  of  a  certificate 
or  of  any  person  who  may  have  a  right  there- 
under. But  after  the  money  comes  into  the 
possession  of  the  person  entitled  to  it,  such 
person  has  only  the  same  right  of  exemption 
as  to  such  funds,  which  he  has  as  to  other 
property. —  Klinckhammer  Brewing  Co.  v. 
Cassman  et  al.,  21  C.  C.  465  (1900),  reversing 
9  Dec.  599;  dismissed  in  supreme  court,  44  W. 
L.  B.   186. 

Creditor's    bills    to     subject    certificate, 
brought  before  payment,  is  premature. 

An  action,  in  the  nature  of  a  creditor's  bill, 
to   subject   the  certificate  to  the  payment  of 


on  the  certificate  reaches  the  beneficiary,  ia 
improperly  brought  and  such  creditor  obtains 
no  rights  thereby  over  other  creditors.  In 
such  a  case  payment  into  court  will  not  be 
regarded  as  payment  to  the  beneficiary. — 
Klinckhammer  Brewing  Co.  v.  Cassman  et  al., 
21  C.  C.  465  (1900),  reversing  9  Dec.  599;  dis- 
missed in  supreme  court,  44  W.  L.  B.  186. 

Benefits   from   certain   societies  not   ex- 
empt. 

See  Hildreth  v.  Endowment  Rank,  8  N.  P. 
540   (1901). 

Unconstitutional. 

This  section  is  unconstitutional  because  in 
conflict  with  section  2  of  article  I  of  the 
constitution. —  Williams   v.    Donough,    65   Oh. 


creditor's  claim  brought  before  the  money  due  I  St.  499   (1902). 

§  3631-19.  Sec.  9.  LEGISLATIVE.— Any  such  association  organized  under  the 
laws  of  this  state,  may  provide  for  the  meetings  of  its  legislative  or  governing  body 
in  any  other  state,  province  or  territory,  wherein  such  association  shall  have  subordi- 
nate lodges,  and  all  business  transacted  at  such  meetings  shall  be  valid,  in  all 
respects,  as  if  such  meetings  were  held  within  this  state,  and  where  the  laws  of  any 
associations  provide  for  the  election  of  its  officers  by  votes  to  be  cast  in  its  subordi- 
nate lodges,  the  votes  so  cast  in  its  subordinate  bodies  in  any  other  state,  province 
or  territory,  shall  be  valid,  as  if  cast  within  this  state.     (April  27,  1896,  92  v.  360.) 


§  3631-20.  Sec.  10.  PENALTY  FOR  FALSE  OR  FRAUDULENT  STATEMENT 
OR  REPRESENTATION. —  Any  person,  officer,  member  or  examining  physician 
who  shall  knowingly  or  willfully  make  any  false  or  fraudulent  statement  or  repre- 
sentation, in  or  with  reference  to  any  application  for  membership,  or  for  the  purpose 
cf  obtaining  any  money  or  benefit  in  any  association  transacting  business  under  this 
act,  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  punished  by  a 
fine  of  not  less  than  one  hundred  dollars  nor  more  than  five  hundred  dollars,  or 
imprisonment  in  the  county  jail  for  not  less  than  thirty  days,  or  more  than  one  year, 
or  both,  in  the  discretion  of  the  court;  and  any  person  who  shall  willfully  make  a 
false  statement  of  any  material  fact  or  thing  in  a  sworn  statement  as  to  the  death  or 
disability  of  a  certificate-holder  in  any  such  association  for  the  purpose  of  procuring 
payment  of  a  benefit  named  in  the  certificate  of  such  holder,  and  any  person  who  shall 
willfully  make  any  false  statement  in  any  verified  report  or  declaration  under  oath 
required  or  authorized  by  this  act,  shall  be  guilty  of  perjury,  and  shall  be  proceeded 
against  and  punished  as  provided  by  statute  of  this  state  in  relation  to  the  crime  of 
perjury.     (April  27,  1896,  92  v.  360.) 


Life  Insub  \  .•  \    I  ompanii  401 


fraternal  Beneficiary  Associations  —  Stipulated  Premium  Plan,         3631   -J! 

§   3631-21.     Sec.   11.     EXCLUSION     OF      ASSOCIATION;     PROCEEDINGS      IN 
INJUNCTION;    REINSTATEMENT.— Any    such    association    | 
to  make  the  report  as  provided  in  this  act  shall  be  excluded  from  doin 
this  state.     Said  superintendent  of  insurance  must  within  sixty  days  after  failu 
make  such  report,  or  in  case  any  such  association  shall  exceed   its  powers 
conduct  its  business  fraudulently,  or  shall  fail  to  comply  with  any  of  *  i 
of  this  act,  give  notice  in  writing  to  the  attorney-general,  who  shall  Immediately 
mence  an  action  against  such  association  to  enjoin  the  same  from   issuing  any 
business.     And  no  injunction  against  any  such  association  shall    bi  i    by  nny 

court,  except  on  application  by  the  attorney-general  at  the  request  of  the 
tendent  of  insurance.  No  association  so  enjoined  shall  have  authority  to  continue  to 
do  the  business  of  soliciting  new  members  until  such  report  shall  be  made  or  overt 
act  or  violations  complained  of  shall  have  been  corrected,  nor  until  the  costs  of  such 
action  be  paid  by  it,  provided  the  court  shall  find  that  such  association  was  in  default 
as  charged,  whereupon  the  superintendent  of  insurance  shall  reinstate  such  associa- 
tion, and  not  until  then  shall  such  association  be  allowed  to  secure  new  members  in 
this  state.  Any  officer,  agent  or  person  acting  for  any  association  or  subordinate 
body  thereof,  within  the  state,  while  such  association  shall  be  so  enjoined  or  prohibited 
from  doing  business  pursuant  to  this  act,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  on  conviction  thereof  shall  be  punished  by  a  fine  not  less  than  twenty-five  dollars 
or  more  than  one  hundred  dollars.      (April  27,  1896,  92  v.  360.) 

§  3631-22.  Sec.  12.  WHO  SUBJECT  TO  PENALTY  PROVIDED  IN  PRECED- 
ING SECTION. —  Any  person  who  shall  act  within  this  state  as  an  officer,  agent,  or 
otherwise,  for  any  association,  which  shall  have  failed,  neglected  or  refused  to  comply 
with,  or  shall  have  violated  any  of  the  provisions  of  this  act,  or  shall  have  failed,  or 
neglected  to  procure  from  the  superintendent  of  insurance  a  proper  certificate  of 
authority  to  transact  business  as  provided  for  by  this  act,  shall  be  subject  to  the 
penalty  provided  in  the  last  preceding  section  for  the  misdemeanor  therein  specified. 
(April  27,  1896,  92  v.  360.) 

§  3631-23.  CONFLICTING  OR  INCONSISTENT  LAWS  REPEALED;  LODGES, 
ETC.,  TO  WHICH  ACT  IS  APPLICABLE.— All  laws  or  part(s)  of  laws  in  conflict 
with  or  inconsistent  with  this  act  are  and  the  same  are  hereby  repealed,  and  nothing 
in  this  act  shall  be  held  to  affect  or  apply  to  grand  or  subordinate  lodges  of  Masons, 
Knights  of  Pythias,  Odd  Fellows  or  similar  orders  that  do  not  have  as  their  principal 
object  the  issuance  of  insurance  certificates  of  membership.  Nor  shall  anything 
therein  contained  apply  to  lodges  or  orders  of  a  purely  religious,  charitable  or  benevo- 
lent description,  paying  exclusively  sick,  funeral  or  death  benefits  to  members,  their 
families  or  blood  relatives,  or  dependents,  or  for  purely  charitable  purposes,  and 
not  operating  with  a  view  to  profit,  nor  shall  any  such  organization  be  required  to 
make  any  report  under  this  or  any  other  section  of  the  insurance  laws,  and  provided 
f nrther,  that  no  society,  lodge  or  body  of  any  secret  or  fraternal  society  or  organiza- 
tion of  employes  of  any  particular  trade,  firm  or  corporation  paying  only  sick  bene- 
fits not  exceeding  two  hundred  and  fifty  dollars  ($250)  in  the  aggregate  to  any  person 
in  any  one  year,  or  a  funeral  benefit  to  those  dependent  on  a  member  not  exceeding 
three  hundred  and  fifty  dollars  ($350),  shall  be  required  to  make  any  report  thereof 
nnder  this  article,  or  under  other  articles  of  the  insurance  laws.  (April  16,  1900. 
94  v.  356;  April  27,  1896,  92  v.  360.) 

§  3631-24.  Sec.  1.  INCORPORATION  OF  COMPANIES  FOR  LIFE  INSUR- 
ANCE ON  THE  STIPULATED  PREMIUM  PLAN.—  Five  or  more  persons  may.  in 
the  manner  and  according  to  the  forms  and  requirements  for  the  incorporation  of 
insurance  companies  mentioned  in  sections  3588  and  3589  of  the  Revised  Statutes 
and  in  this  act,  become  an  incorporated  company  for  the  purpose  of  making  insur- 

LAW    GOV.    PRIV.    COR. — 26. 


402  Private  Corporations  in  Ohio. 

Companies  on  Stipulated  Premium  Plan,   S§  3631-25-3631-27. 

ance  upon  the  lives  and  health  of  individuals,  and  every  insurance  appertaining 
thereto  or  connected  therewith,  on  the  stipulated  premium  plan  as  denned  and  regu- 
lated herein.      (93  v.  343.) 

Liability   of  trustees. 

See  Kelly  v.  Bender,  22  O.  C.  C.  144  (1901). 

§3631-25.  Sec.  2.  COMPLETION  OF  ORGANIZATION.— No  such  corporation, 
company  or  association  shall  commence  the  business  of  life  insurance  until  at  least 
two  hundred  persons  eligible  under  the  proposed  plan  of  the  organization  shall  have 
subscribed  in  writing  to  be  insured  therein  in  the  aggregate  amount  of  at  least  five 
hundred  thousand  dollars,  and  shall  have  each  paid  or  become  obligated  to  pay  the 
amount  of  one  annual  stipulated  net  premium  for  their  age  at  entry  on  the  amount 
of  insurance  severally  subscribed  for,  and  which  shall  be  held  in  trust  for  the  bene- 
fit of  the  members  of  said  corporation  or  their  beneficiaries;  nor  until  the  superin- 
tendent of  insurance  shall  have  further  certified  that  it  has  complied  with  the 
provisions  of  this  act  and  is  authorized  to  transact  the  business  of  insurance. 

DEPOSIT  OF  SECURITIES. —  Provided,  however,  that  every  corporation  incor- 
porating or  reincorporating  under  the  provisions  of  this  act,  shall  deposit  with  the 
superintendent  of  insurance  in  such  securities  as  are  required  by  law  to  be  deposited 
by  insurance  companies,  the  sum  of  five  thousand  dollars  within  one  year  after  date 
of  such  incorporation  or  reincorporation,  and  such  corporation  shall  each  year  there- 
after, upon  filing  its  annual  statement,  deposit  in  like  securities  with  the  superin- 
tendent of  insurance,  the  sum  of  two  thousand  dollars  on  each  million  of  insurance 
in  force  for  the  last  calendar  year,  as  shown  by  its  said  annual  statement,  until  the 
sum  of  one  hundred  thousand  dollars  shall  have  been  deposited.  The  securities 
deposited  with  the  insurance  department  pursuant  to  this  section  shall  be  held  by  the 
superintendent  in  trust  for  the  benefit  and  protection  of  and  as  security  for  the  pol'cy 
holders  of  such  corporation,  their  legal  representatives  and  beneficiaries.  (April  25, 
1898,  93  v.  343.) 

§  3631-26.  Sec.  3.  LIFE  INSURANCE  ON  STIPULATED  PREMIUM  PLAN 
DEFINED;  CORPORATIONS  SUBJECT  TO  PROVISION  OF  ACT;  EXISTING 
STATUTES. —  Any  corporation,  company  or  association  which  issues  any  policy,  cer- 
tificate or  other  evidence  of  interest  to,  or  makes  any  promise  or  agreement  with  its 
members  whereby  any  money  or  other  benefit  is  to  be  paid  to  a  member,  or  upon  his 
decease  to  his  legal  representative  or  the  beneficiary  designated  by  him,  which 
money  or  benefit  is  derived  from  stipulated  premiums  collected  from  its  members,  or 
members  of  a  class  therein,  or  from  interest  or  accumulations,  and  wherein  the  money 
or  other  benefits  so  realized  is  applied  to,  or  accumulated  for  the  use  and  purposes  of 
such  corporation  as  herein  specified,  and  the  expenses  of  its  management  and  prose- 
cution of  its  business,  shall  be  deemed  to  be  engaged  in  the  business  of  life  insurance 
upon  the  stipulated  premium  plan,  and  shall  be  subject  only  to  the  provisions  of  this 
act,  excepting  that  the  provisions  of  chapter  8,  title  3,  part  1,  and  of  chapter  10, 
title  2,  part  2,  of  the  Revised  Statutes  shall  be  applicable  so  far  as  the  same  are  not 
inconsistent  with  the  provisions  of  this  act.      (April  25,  1898,  93  v.  344.) 

§  3631-27.  Sec.  4.  EXISTING  CORPORATIONS,  ETC.,  MAY  ACCEPT  PRO- 
VISIONS OF  ACT;  HOW. — Any  domestic  corporation,  company,  association  or  society 
existing  or  doing  business  under  the  provisions  of  chapter  10,  title  2,  part  2,  of  the 
Revised  Statutes,  at  the  time  this  act  takes  effect,  may,  by  a  vote  of  a  majority  of  its 
board  of  directors  or  trustees,  and  upon  obtaining  the  consent  of  the  superintendent 
of  insurance  thereto,  in  writing,  accept  the  provisions  of  this  act,  and  amend  its 
articles  of  incorporation  to  conform  with  the  same,  so  as  to  cover  and  enjoy  any  and 


Li i  i     !  4Q3 


Companies  on  Stipulated  Premium    Plan, 


all  the  provisions  or  privileges   of   this  act,   which    i 
enjoyed,    if    it    had    been   originally   incorporated    hen 
amendment  of  its  articles  of  incorporation  and  the  consent  requ 
the  office  of  the  secretary  of  state,  and  shall  thereafter  perpel 
and  be  deemed  to  have  been  incorporated  under  this  act. 

EXISTING  CONTRACT   OR   LIABILITY   OF   CORPORATION    NOT   AFFECTED 
BY  ITS  REINCORPORATION  OR  ACCEPTANCE.— The  rein, 
ing  of  any  existing  domestic  or  foreign  corporation  under  the 
shall  in  no  way  annul,  modify  or  change  any  existing  contract, 
of  such  existing  corporation,  and  any  and  all  such  contracts  and  Lial 
tinue  in  full  force  and  effect  the  same  as  though  such  corporation  had  no1 
porated  or  qualified  under  this  act. 

PENDING   ACTIONS   OR  RIGHTS  UNAFFECTED.—  Neither  shall   the   reincor- 
porating or  qualifying  of  any  such  corporations  under  the  provisions  of  this  a  I 
any  way  prejudice,  impede,  or  impair  any  pendng  action  or  proceeding,  or  any  rights 
previously  accrued.     (April  25,   1898,  93  v.  344.) 

§  3631-28.  Sec.  5.  MINIMUM  PREMIUMS.— Every  such  corporation,  company 
or  association  doing  business  under  the  provisions  of  this  act  shall  charge  at  least  a 
net  premium  calculated  upon  the  combined  experience  or  actuaries'  table  of  mortality, 
with  interest  at  the  rate  of  four  per  centum  per  annum,  equal  to  that  of  a  yearly  term 
insurance  at  the  age  of  entry.  Such  premium  shall  be  increased  by  a  loading  of  not 
less  than  twenty-five  per  centum,  and  may  be  paid  annually,  semi-annually,  quarterly 
or  bimonthly  in  advance.     (April  25,   1898,  93  v.  345.) 

§  3631-29.  Sec.  6.  RESERVE  FUND.—  Every  such  corporation,  company  or 
association  shall  accumulate  and  at  all  times  maintain  a  reserve  fund  not  Uss  thr.n 
the  net  premium,  according  to  the  term  of  premium  payment  of  each  policy,  upon  all 
its  outstanding  policies,  which  net  premium  shall  equal  the  amount  called  for  by  the 
combined  experience  or  actuaries'  table  of  mortality  at  the  attained  age  of  the 
insured,  computed  as  specified  in  section  5  of  this  act. 

IMPAIRMENT  OF  FUND  REMEDIED.—  If  the  amount  of  such  reserve  fund  is 
at  any  time  reduced  to  less  than  such  net  premium  upon  all  its  outstanding  policies 
at  the  attained  age  of  the  insured,  or  to  less  than  the  reserve  required  by  the  terms 
and  conditions  thereof,  such  deficiency  shall  be  made  up  and  restored  to  said  fund 
within  three  months  thereafter. 

DUTY  OF  SUPERINTENDENT  IN  CASE  OF  FAILURE  TO  REMEDY  IM- 
PAIRMENT.—  Should  such  impairment  of  the  reserve  fund  not  be  made  good  within 
three  months,  then  the  superintendent  of  insurance  shall  require  the  officers  of  suc'.i 
corporation  to  forthwith  notify  its  members  to  pay,  within  thirty  days  from  the 
mailing  of  such  notice,  an  extra  premium  sufficient  to  meet  such  deficiency  appor- 
tioned equitably,  and  any  such  extra  premium  shall  not  be  less  than  the  difference 
between  the  actual  net  premium  paid,  and  the  net  premium  at  attained  age.  If  any 
member  fails  to  pay  such  extra  premium  within  the  time  named,  the  corporation  shall 
scale  down  the  policy  of  each  and  every  member  so  fuiling  to  pay  to  such  an  amount 
as  is  necessary  to  make  the  reserve  fund  to  his  credit  equal  to  said  unearned  premium 
on  his  insurance  remaining  in  force,  which  amount  shall  be  the  maximum  for  which 
the  corporation  shall  be  liable  under  said  policy.  Said  thirty  days'  notice  shall 
clearly  state  the  proportionate  amount  of  the  impairment  due  from  the  insured  and 
shall  contain  the  further  statement  that  in  the  event  of  failure  to  pay  the  same 
within  thirty  days  after  the  mailing  of  such  notice,  said  policy  will  be  scaled  down 
as  aforesaid.     (April  25,  1898,  93  v.  345.) 


404  Private  Corporations  in  Ohio. 


Companies   on  Stipulated  Premium  Plan,    §§   3631-30-3631-33. 


§  3331-30.  Sec.  7.  LIMITED  PAYMENT  POLICIES.—  Any  corporation,  com- 
pany or  association  doing  business  under  this  act  may  issue  limited  payment  policies; 
provided  such  policies  hereafter  issued  distinctly  state  the  portion  of  each  of  the 
premiums  to  be  held  by,  and  charged  against  such  corporation  for  the  purpose  of  sus- 
taining such  policies  after  expiration  of  the  term  of  years  in  which  the  premiums 
are  to  (be)  paid,  which  shall  not  be  less  than  the  legal  reserve  annually  according  to 
the  actuaries'  or  combined  experience  table  of  mortality  with  interest  at  4  per  C2nt. 
per  annum  and  which  portion  at  the  expiration  of  such  term  of  years,  together  with 
the  interest  accredited  thereto,  shall  not  then  nor  thereafter  be  less  than  the  single 
net  premium  at  the  attained  age,  according  to  the  actuaries'  or  combined  experience 
table  of  mortality,  with  interest  at  four  per  centum  per  annum;  and  if  any  such  corpo- 
ration doing  business  under  this  act  shall  not  state  in  its  limited  payment  policies  the 
portion  of  each  of  the  premiums  to  be  held  by  it  for  the  purpose  of  sustaining  the 
insurance  after  the  term  of  years  during  which  the  premiums  are  to  be  paid,  or  if 
any  such  corporation  shall  issue  any  form  of  investment  policies,  then  such  limited 
payment  or  other  form  of  investment  policies  hereafter  issued  shall  be  valued  on  the 
basis  of  the  actuaries'  or  combined  experience  table  of  mortality,  and  interest  at  four 
per  centum  per  annum,  as  provided  and  contemplated  in  section  279  of  the  Revised 
Statutes.     (April  25,  1898,  93  v.  345.) 

§  3631-31.  Sec.  8.  CASH  VALUES.— Any  corporation,  company  or  association 
authorized  to  do  business  hereunder,  may  pay  fixed  cash  values,  provided  the  amount 
of  reserve  computed  and  to  be  set  apart  for  such  cash  value  is  plainly  stated  in  the 
policy,  and  provided  further  that  such  cash  value  shall  not  be  in  excess  of  the  portion 
of  the  premium  with  interest  accretions  thereon,  collected  for  such  purpose.  (April 
25,   1898,  93  v.  346.) 

§  3631-32.  Sec.  9.  DISTRIBUTION  OF  SURPLUS.— If  the  cash  and  invested 
assets  of  the  corporation,  company  or  association,  exceed  the  reserve  fund  required 
by  this  act,  or  under  the  terms  and  conditions  of  its  policy  contracts,  and  the  actual 
liabilities  of  said  corporation  to  an  amount  in  excess  of  ten  per  centum  of  such  reserve 
fund,  then  the  amount  of  such  excess  may,  if  the  policy  contract  so  provides,  be 
apportioned  by  the  corporation  as  a  dividend  to  members,  in  reduction  of  premiums, 
in  the  purchase  of  paid  up  or  extended  insurance,  or  may  be  drawn  in  cash;  or  such 
dividend  or  dividends  may  be  paid  to  the  beneficiary  of  a  deceased  member  in  addi- 
tion to  the  face  of  the  policy.     (April  25,  1898,  93  v.  346.) 

§  3631-33.  Sec.  10.  WHAT  POLICY  SHALL  SET  FORTH.— Every  policy  here- 
after issued  by  any  corporation,  company  or  association  doing  business  under  this  act 
and  promising  any  payment  to  be  made  upon  a  contingency  provided  for  in  this  act, 
shall  specify  the  sum  of  money  which  it  promises  to  pay  upon  each  contingency 
insured  against,  and  the  number  of  days  after  satisfactory  proof  of  the  happening 
of  same  on  which  such  payment  shall  be  made. 

OBLIGATION  OF  COMPANY  TO  BENEFICIARIES  OR  INSURED.— Upon  the 
occurrence  of  such  contingency,  unless  the  contract  shall  have  been  avoided  by  fraud 
or  breach  of  its  conditions,  the  corporation  shall  be  obligated  to  the  beneficiaries  or 
insured  for  such  payment  at  the  time  and  to  the  maximum  amount  due  under  the 
policy. 

REFUSAL  OR  FAILURE  TO  PAY. —  If  the  superintendent  of  insurance  shall  be 
satisfied,  upon  investigation,  that  any  such  corporation  has  refused  or  failed,  after 
proper  demand,  to  make  such  payment  for  sixty  days  after  final  judgment  has  been 
obtained  upon  such  claim,  he  shall  notify  the  corporation  to  issue  no  new  policies 


Life  [nsurance  Co  405 


Companies  on  Stipulated  Premium    Plan,  $g  3631     .1 


until  such  indebtedness  is  fully  paid;  and  no  officer  or  agent  of  the  coij 

make,  sign  or  issue  any  policy  of  insurance  while  such  notice  I  ^5 

1898,  93  v.    346.) 

§  3631-34.  Sec.  11.  FOREIGN  CORPORATIONS  MUST  PROCURE  CERTIFI- 
CATE  OF   AUTHORITY.— No    corporation,   company,    as 

ized  under  the  laws  of  any  other  state  or  territory  of  the  United  States  01  th< 
of  Columbia  or  foreign  country,  shall  transact  business  under  the  provisions  ol 
act  until  it  has  received  from  the  superintendent  of  insurance  a  certificate  of  i 
to  do  business  in  this  state,  a  duplicate  of  which  shall  be  filed  in  his  office. 

RENEWAL  CERTIFICATES.—  The  superintendent  shall  annually   issue  to  such 
fo-reign  corporation,  company,  association  or  society,  renewal  certificates  of  authoiity 
to  continue  business,  if  it  shall  have  fully  complied  with  the  provisions  of 
and  if  the  superintendent  shall  be  of  the  opinion  that  any  such  corporation,  com: 
association  or  society  is  not  entitled  to  a  renewal  of  a  certificate  of  authority,  he 
in  his  discretion  cite  the  same  to  appear,  giving  reasons  therefor,  and  show  cause  why 
the   certificate    of    authority    should   not   be   renewed;    and    unless    the    cert  • 
authority  shall  be  renewed  within  ten  days  after  such  hearing,  such  foreign  corpora- 
tion, company,  association  or  society  shall  cease  to  do  business  in  this  state. 

SUPERINTENDENT  MAY  REFUSE  CERTIFICATE.—  The  superintendent  may 
refuse  a  certificate  of  authority  or  renewal  of  the  same  to  any  such  foreign  corpora- 
tion, company,  association  or  society,  when  such  refusal  will  best  promote  the  public 
interests. 

OBLIGATIONS  SIMILAR  TO  THOSE  OF  OTHER  STATES.—  When  any  state, 
territory  or  foreign  country  shall  impose  any  obligations  upon  any  such  corporation 
of  this  state,  or  their  agents,  transacting  business  in  such  other  state,  territory  or 
foreign  country,  the  like  obligations  are  hereby  imposed  upon  similar  corporations 
of  such  other  state,  territory  or  foreign  country,  and  their  agents  or  representatives 
transacting  business  in  this  state;  and  such  corporation,  company,  association  or 
society  of  such  other  state,  territory  or  foreign  country,  and  its  agents  and  represen- 
tatives, shall  pay  all  licenses,  fees  or  penalties  to  and  make  deposits  with  the  super- 
intendent of  insurance  imposed  by  the  laws  of  such  other  state,  territory  or  foreign 
country  upon  any  corporation  of  this  state  doing  business  therein;  and  in  case  of 
failure  to  pay  the  same,  the  superintendent  shall  refuse  the  certificate  of  authority 
herein  provided  for  or  cancel  such  certificate  if  one  shall  have  been  previously  issued. 

FOREIGN  COMPANY  TO  FURNISH  EVIDENCE  TO  ENTITLE  IT  TO  LICENSE. 
—  No  foreign  corporation,  company,  association  or  society  shall  be  authorized  to 
transact  any  business  authorized  by  this  act  within  this  state,  unless  it  furnishes 
evidence  satisfactory  to  the  superintendent  of  insurance  that  it  has  a  reserve  fund 
equal  in  amount  to  that  required  by  this  act,  and  that  the  same  is  held  for  the  bene- 
fit of  policy  holders  only,  and  invested  as  required  by  the  insurance  laws  of  this  state. 
Neither  shall  any  foreign  corporation,  company,  association  or  society  be  authorize  1 
to  do  business  in  this  state  unless  it  collects  in  advance  for  the  benefit  of  its  policy 
holders  a  net  premium  equal  to  at  least  that  provided  for  by  the  terms  of  this  act. 
(April  25,    1898,   93  v.   346.) 

§  3631-35.  Sec.  12.  DISCRIMINATION  PROHIBITED.— No  life  insurance 
corporation,  company  or  association  subject  to  the  provisions  of  this  act  shall  make 
any  discriminations  in  favor  of  individuals  of  the  same  class  or  of  the  same  expecta- 
tion of  life,  either  in  the  amount  of  premiums  charged  or  in  any  return  of  premiums, 
dividends  or  other  advantages. 


406 


Private  Corporations  in  Ohio. 


Companies  on   Stipulated  Premium   Plan,    §§    3631-36-3631-38. 

CONTRACTS  BY  AGENTS. —  No  agent  of  such  corporation  shall  make  any  con- 
tract for  insurance  or  agreement  as  to  such  contract  other  than  that  which  is  plainly- 
expressed  in  the  policy  issued. 

REBATE  OF  PREMIUM  PROHIBITED. —  No  such  corporation  or  agent  thereof 
shall  pay  or  allow,  or  offer  to  pay  or  allow,  as  an  inducement  to  any  person  to  insure, 
any  rebate  of  premium,  or  any  special  favor  or  advantage  whatever  in  dividends  to 
accrue  thereon,  or  any  inducement  whatever  not  specified  in  the  policy.  If  it  shall 
appear  to  the  satisfaction  of  the  superintendent  of  insurance,  after  a  hearing  by  him 
upon  due  notice,  that  any  corporation  is  issuing  policies  or  making  contracts  that  are 
in  violation  of  this  section,  he  shall  upon  the  written  approval  of  the  attorney-general, 
require  such  corporation  and  its  officers  and  agents  to  refrain,  within  twenty  days, 
from  making  any  such  policy  or  contract.  If  any  such  corporation  or  officer  or  agent 
thereof  shall  fail  to  comply  with  the  provisions  of  this  section  the  superintendent 
shall  institute  such  proceedings  at  law  as  may  be  necessary  to  restrain  such  viola- 
tion of  this  section.     (April  25,   1898,  93  v.  347.) 


Rebate   of  premium   agreed   to   by    sub- 
agent;    transaction    void. 

"  H.,"  a  sub-agent,  agreed  with  assured  to 
make  a  rebate  on  the  premium.,  the  latter 
giving  his  note  for  the  premium,  less  rebate. 


Afterward  a  check  dated  ahead  was  gi\Ten  in 
place  of  the  note.  Held,  both  void. —  Tilling- 
hast  et  al.  v.  Craig.  17  C.  C.  531  (1893)  ;  s.  c, 
9  C.  D.  459. 

Note  amendment  to  this  section  (93  v.  347). 


§  3631-36.  Sec.  13.  POLICY  HOLDER  NOT  PERSONALLY  LIABLE  FOR 
LOSSES  OF  CORPORATION. —  No  person  shall  incur  any  personal  liability  for  the 
losses  or  liabilities  of  any  corporation,  company  or  association  organized  or  doing 
business  under  this  act  by  reason  of  being  a  policy  holder  in  such  corporation.  (April 
28,   1SS8,  S3  v.   348.) 

§  3631-37.  Sec.  14.  WITHDRAWAL  OF  SECURITIES  UPON  RELINQUISH- 
MENT OF  BUSINESS. —  When  any  such  corporation,  company  or  association  shall 
desire  to  relinquish  its  business  the  superintendent  shall,  on  application  of  such  cor- 
poration under  the  oath  of  its  president  or  principal  officer  and  secretary  or  actuary, 
give  notice  of  such  intention  at  least  twice  a  week  for  six  months  in  a  newspaper  of 
general  circulation  published  at  Columbus.  After  such  publication  he  shall  deliver 
up  to  said  corporation  the  securities  held  by  him  belonging  to  it  upon  being  satisfied 
by  an  exhibition  of  the  books  and  papers  belonging  to  such  corporation,  and  on  exam- 
ination by  himself  or  by  some  competent  person  to  be  appointed  examiner  by  him, 
and  upon  the  oath  of  the  president  or  principal  officer  and  the  secretary  or  actuary  of 
said  corporation,  that  all  its  debts  and  liabilities  of  every  kind  are  paid  and  extin- 
guished that  are  due  or  may  become  due  upon  any  contract  or  agreement  made  by 
said  corporation  or  its  assignee  any  portion  of  such  securities  on  being  satisfied  in 
the  manner  and  form  hereinbefore  required,  or  upon  any  other  competent  proof,  that 
all  the  debts  and  liabilities  of  every  kind  that  are  due  or  may  become  due  are  less 
than  the  amount  or  proportion  of  such  securities  which  he  shall  still  retain.  (April 
28,   1898,  93  v.  348.) 


§  3631-38.  Sec.  15.  TAXES. —  Every  corporation  doing  business  under  the  pro- 
visions of  this  act  shall  be  liable  for  and  pay  such  taxes  as  other  life  insurance  com- 
panies are  liable  for.     (April  28,  1898,  93  v.  348.) 

For  an  act  authorizing  companies  to  insure  against  burglary,  see  94  v.  350. 
For  an  act  creating  the  office  of  fire  marshal,  etc.,  see  94  v.  386. 


PART    XV. 

INSll;.\\(  E  COMPANIES  OTHEB  THAN    LIFE. 

§  3G32.        Articles  of  incorporation  to  be  approved  by  attorney-general. 

§3033.        To  be  recorded  by  secretary  of  state,  and  copj  deposited  with  superintendent. 

§3034.        Capital  of  joint  stock  companies.     Amount   and  i  ol  subscription  in  w 

fire    companies    necessary.      Annual    cash    premiums    collectible    in    advance    by 
mutual  companies.    Contingenl   mutual  liability  for  Losses  and  Mutual 

fire  association  not  included. 

§  3035.        Books  of  subscription  to  stock. 

§  3030.         Election  of  directors. 

§3037.         How   company   must    invest    its  capital. 

§3038.        How  may  invesl    it-  accumulations. 

§3039.         Limitation  on  the  powers  of  investment. 

§  3040.        Examination  by   the  superintendent. 

§3041.  Powers  of  companies;  limitation:  guaranty  companies  musl  make  deposit;  cor- 
porate power  cannot   be  denied. 

§  3041a.       Fire  insurance  companies   may  insure  againsl    lightning,   explosion,  and 

§  3041b.  Accident  and  guaranty  companies  may  insure  againsl  accidents  to  employees,  etc.; 
deposit. 

§  3641c.       Sufficiency  of  bonds,  etc.,  executed  by  companies;  other  bonds. 

§3042.         Directors  of  insurance  companies  to  elect   officers;  by-laws  and  regulations. 

§  3043.         Extent  of  liability  under  policy   of  insurance. 

§  3044.         When  solicitor  held  to  lie  agent  of  insurer. 

§  3045.         How  contracts  to  be  evidenced. 

§  3040.         Transfers  of  stock. 

§  3047.         How  stock  may  be  increased. 

§3048.  Dividends  to  be  payable  from  surplus  profits  only,  reservations  therefrom:  penalty 
for  violations  of  this  section:  scrip  dividends  by  participating  or  mutual  »m- 
panies;  interpretation  of  words  "  year  "  and  "profits;"  accumulation  of  a  im- 
manent fund;   rights  of  policy  holder  after  determination  of  policy. 

§  3049.         What  real  estate  company  may   hold. 

§3050.  Liability  of  members  of  mutual  companies  to  assessmenl  ;  assessments,  how  made; 
for  what   purpose   a   debt  may   be  created. 

§3051.         Enforcement   of  assessments;    partial    payment    of   loss. 

§3052.  How  assessments  and   notice  proved. 

§3053.         What  kind  of  policies  company  to  i-sue. 

§3054.         Annual   reports  of  companies;    mutual   insurance   companies. 

§3055.         Special   report   required  of   certain    insurance  companies;    penalty. 

§3050.        Foreign  companies  must  obtain  license  of  superintendent. 

§  3057.         The  waiver  companies  must  file. 

§3058.         Must  also   file  statement. 

§  3059.         Revocation   of  license  of  foreign   insurance  company  other  than  life. 

§  3000.         Certain  companies  must    make  deposit. 

§  3001.         All  foreign  companies   must    make  annual   statements. 

§  3001a.  Eire  insurance  company  to  include  in  advertisement  only  assets  admitted  by  the 
superintendent  of  insurance. 

§  3001b.       Penalty. 

§  3002.         Companies  must  apply   dividends   to   -lock   notes. 

§3003.         Lien  of  mutual  companies   for  premium  note-. 

[407] 


408  Private  Corporations  in  Ohio. 


§  3664.  Insured  may  require  fire    policy  to  be  canceled. 

§  3665.  Rates  for  cancellation  of  cash  policies. 

§  3666.  Rates  for  policies  of  mutual   companies. 

§  3667.  Rates  when  premium  is  paid  in  installments. 

§  3668.  Premium  notes  not  negotiable. 

§  3669.  Superintendent  to  enforce  certain  provisions. 

§3670.  Accident  insurance  companies  authorized;  deposit  of  securities  for  the  purpose  of 
doing  business  in  another  state. 

§  3671.  How  companies  may   consolidate. 

§  3672.  Distribution  of  the  stock  of  consolidated  company. 

§  3673.  Election  of  directors. 

§  3674.  Capital  stock  limited. 

§  3675.  Certificate  of  consolidation  must  be  filed  with  the  secretary  of  state. 

§  3683.  Examination  of  mutual  fire  companies. 

§  36S4.  Persons  refusing  to  appear  and  testify  are  in  contempt. 

§  3685.  Certain  bonds  may  be  approved  by  probate  judge. 

§  3686.  Mutual    protection  associations   authorized. 

§  3687.  Certificate  of  organization. 

§  3688.  When  certificate  to  be  filed. 

§  3689.  Election   of  officers;   powers. 

§3690.  Certain  insurance  companies  must  adopt  constitution  arid  by-laws;  official  state- 
ment to  be  made  to  superintendent  of  insurance. 

§  3690-1.  Mutual  fire  insurance  associations  authorized  to  organize  as  companies. 

§  3690-2.  Rights  of  policy  holders;  how  affected. 

§  3690-3.  Policies  ;   by-laws,  etc. 

§  3691.  Cellar  and  foundation  not  considered  part  of  structure  in  settling  loss. 

An  Act.  To  provide  for  the  organization  of  corporations  for  the  purpose  of  discovering 
fires  and  saving  life  and  property. 

Mutual  Insurance  of  Animals. 
§  3691-1.     Mutual  protective   association. 
§  3691-2.     Certificate   of   organization. 

§  3691-3.     Certificate  to  be  filed  with  secretary  of  state. 
§  3691-4.     Election  of  officers. 

§3691-5.     Constitution  and  by-laws;  annual  statement  to  commissioner  of  insurance. 
§  3691-6.     Examination  by  commissioner  of  insurance. 

§  3691-7.     Amount  of  applications  for  insurance  required  before  commencing  business. 
§  3691-8.     When  company  may  commence  business. 
§  3691-9.     When  charter  may  be   forfeited. 
§  3691-10.  Bond  of  secretary  and  treasurer. 
§  3691-11.  Directors. 

§  3691-12.  Statement  of  secretary  and  bond  of  treasurer  to  be  filed  with  commissioner  of 
insurance. 

Re-insurance. 
§  3691-13.  Companies  may  re-insure   their  risks. 

Credit  Guaranty  Companies. 
§  3691-14.  Credit    guaranty    companies;    organization. 
§  3691-15.  Capital  stock. 
5  3691-16.  Increase  of  capital  stock. 
§3691-17.  Investment  of  capital;   deposit. 
§3691-18.  Certificate  of  deposit;  right  to  transact  business. 
§  3691-19.  Power  of  companies. 
§  3691-20.  Annual  statements. 


Insurance  Companies  Other  Than   Life.  409 


Articles  of   Incorporation  —  Capital    Stock,  :u, 


§3(ji)l-i>l.  Requirements  of  companies  oi  othei     tatea. 

§  3691-22.  When  company  from  other  state  exempted  from  makin 

§  3691-'23.  Forfeiture  of  righl  to  do  business. 

§  3691-24.   Examination. 

Burglar?  and  Robb]  ri    i sbi  rance  i  i  - 

§  369  l-24a.  Licensing  of  companies  organized  for  insurance  against   burglai 

8  369 l-24b.  Requisites  for  beginning  business. 

§  369 l-24c.  Copy  of  charter,  and  statemenl   to  be  filed   with  the  superintendent    ol  ii 
what  statement  shall  contain.     Foreign  companj   to  file  lasl  annual  report 
forbidden  to  transacl    business  when  company's   reserve  i-   impaired. 
procure  certificate  from  superintendent  of  insura 

8  3691-24d.  Character  of  business  to  be  conducted  in  this  state.     Reii     i 

8  3691-24e.  Liability  of  policy  holders. 

§  3691-24f.  Appointment  of  attorney.     Service  of  process. 

§  3691-24g.  Annual  statements.    Revocation  of  authority  of  company. 

8  3632.  ARTICLES  OF  INCORPORATION  TO  BE  APPROVED  BY  ATTORNEY- 
GENERAL.  —  The  articles  of  incorporation  of  a  company  formed  for  the  purpose  of 
insurance,  other  than  life  insurance,  must  be  forwarded  to  the  secretary  of  state,  who 
shall  submit  the  same  to  the  attorney-general  for  examination,  and  if  found  by  him 
to  be  in  accordance  with  the  provisions  of  this  chapter,  and  not  inconsistent  with  the 
constitution  and  laws  of  this  state  and  of  the  United  States,  shall  certify  and*  deliver 
back  the  same  to  the  secretary,  who  may  reject  any  name  or  title  of  any  company 
applied  for  when  he  deems  the  same  similar  to  one  already  appropriated,  or  likely  to 
mislead  the  public.     (April  27,  1872,  69  v.  140,  §  1;  S.  &  S.  205.) 

Similarity  of  names. 

See  note  under  §  35S9. 

§  3633.  TO  BE  RECORDED  BY  SECRETARY  OF  STATE.  AND  COPY  DEP0  7- 
ITED  WITH  SUPERINTENDENT.— Upon  the  approval  of  the  articles  by  the  attor- 
ney-general and  the  secretary  of  state,  the  secretary  shall  cause  the  same  to  be 
recorded  and  copied  in  the  same  manner  as  is  provided  in  the  preceding  chapter,  and 
a  copy  thereof  to  be  deposited  with  the  superintendent  of  insurance,  who  shall  with- 
hold from  the  company  the  certificate  of  authority  if  its  name  is  so  similar  to  the 
name  of  any  other  company  as  to  mislead  the  public.  (April  27,  1872,  69  v.  140.  |  2; 
May  14,   1878,  75  v.   557,    §§    1,  2.) 

§  3634.  CAPITAL  OF  JOINT  STOCK  COMPANIES;  AMOUNT  AND  CHAR- 
ACTER OF  SUBSCRIPTION  IN  MUTUAL  FIRE  COMPANY  NECESSARY;  SUB- 
SCRIPTIONS TO  INSURANCE  IN  MUTUAL  COMPANIES;  ANNUAL  CASH  PRE- 
MIUMS COLLECTIBLE  IN  ADVANCE  BY  MUTUAL  COMPANIES;  CONTINGENT 
MUTUAL  LIABILITY  FOR  LOSSES  AND  EXPENSES;  MUTUAL  FIRE  ASSOCIA- 
TIONS NOT  INCLUDED.  —  Except  as  hereinafter  provided,  no  joint  stock  insurance 
company  shall  be  organized  under  this  chapter,  or  permitted  to  do  business  in  this  state, 
with  a  less  capital  than  one  hundred  thousand  dollars,  which  must  be  fully  paid  up 
before  the  company  shall  be  entitled  to  transact  business,  except,  that  but  twenty-five 
per  cent,  of  the  capital  stock  of  a  live  stock  company  must  be  paid  up  before  the  same 
shall  have  the  right  to  do  business;  nor  shall  any  company  on  the  plan  of  mutual  f  re 
insurance  be  incorporated  until  not  less  than  five  hundred  thousand  dollars  of  insur- 
ance, in  not  less  than  two  hundred  separate  risks,  no  one  of  which  shall  exceed  S5,C0"). 
have  be  (been)  subscribed,  and  the  premium  thereon,  for  one  year,  paid  in  cash,  ag- 
gregating not  less  than  $10,000  in  cash,  each  subscriber  agreeing,  in  writ'ng.  to 
assume  a  liability  to  be  named  in  the  policy,  subject  to  call  by  the  board  of  directors 
in  a  sum  not  less  than  three  nor  more  than  five  annual  premiums.     And  the  same 


410 


Private  Corporations  in  Ohio. 


Stock  Subscriptions  —  Directors,  §§  3635,  3636. 


liability  shall  also  be  agreed  to  in  writing  by  each,  subsequent  subscriber  or  applicant 
for  insurance  who  is  not  a  merchant  or  manufacturer.  And  each  subscription  before 
incorporation  shall  be  accompanied  by  a  certificate  of  a  justice  of  the  peace  of  the 
township  or  city  where  such  subscriber  resides,  that  the  subscriber  is,  in  his  opinion, 
pecuniarily  good  and  responsible  to  the  extent  of  the  contingent  liability  agreed  to 
be  assumed.  Mutual  fire  insurance  companies  organized  under  this  act  may  there- 
after charge  and  collect  in  advance  upon  their  policies  a  full  annual  premium  in  cash, 
but  such  policies  shall  not  compel  subscribers,  insured  or  assured,  to  renew  any  policy 
nor  pay  a  second  or  further  annual  or  term  premium.  Any  such  company  must  in 
its  by-laws,  and  must  in  its  policies,  fix  by  a  uniform  rule  the  contingent  mutual 
liability  of  its  members  for  the  payment  of  losses  and  expenses;  and  such  contingent 
liabilities  shall  not  be  less  than  three  nor  more  than  five  annual  cash  premiums  as 
written  in  the  policy;  but  such  liability  shall  cease  with  the  expiration  of  the  time 
for  which  a  cash  premium  has  been  paid  in  advance,  except  for  liability  incurred 
during  said  time;  but  nothing  in  this  section  shall  apply  to  associations  for  the 
mutual  protection  of  their  members  against  loss  by  fire  heretofore  or  hereafter  organ- 
ized as  provided  in  section  3686  of  the  Revised  Statutes.  (April  16,  1900,  94  v.  301; 
March  16,  1891,  88  v.  102;  April  18,  1890,  87  v.  224;  April  14,  1888,  85  v.  273; 
R.  S.   1880;  May  14,  1878,  75  v.  561,  §  3;  S.  &  S.  205.) 


embody  the  contingent  liability  in  the  policy 
as  herein  provided ;  and  said  original  sections 
3634.  3048,  3651.  3652.  3654  and  3663  are 
hereby  repealed.  Provided  that  said  section 
shall  remain  in  force  as  to  all  mutual  com- 
panies now  doing  business,  which  do  not  elect 
to  reorganize  under  said  sections  as  amended 
by  this  act." 

"  Sec.  3.  This  act  shall  take  effect  and  be  in 
force  on  and  after  July   1st,   1888."  .' 

Taxation,     what     are     legal     bona     fide 
debts. 

See  French  v.  German  Mutual  Ins.  Co.,  12 
Dec.  1S3    (1901). 


Distinction  between  mutual  companies 
and  mutual  protective  associations 
doing  business  under  S  3686  to  §  3690. 

See  State  v.  Mutual  Fire  Ass'n,  50  Oh.  St. 
145,  150  (1893)  Richards,  Rec'r,  v.  Swain  & 
McCormick  Co.  et  al.,  7  N.  P.  68  (1900)  ;  s.  c, 
9  Dec.  70.    See   §  3663. 

Section  2  of  the  act  of  1888,  April  14  (85  v. 
273),  amending  sections  3634,  3648,  3650,  3651, 
3652,  3654,  and  3663,  reads  as  follows: 

"  See.  2.  (Companies  doing  business  on  the 
'premium  note  plan,'  repeal;  section  to  remain 
in  force  as  to  certain  mutual  companies.) 
This  act  shall  not  affect  companies  now  doing 
business  on  the  premium  note  plan,  unless 
they    elect    to    dispense    with    said    notes    and 

§  3635.  BOOKS  OF  SUBSCRIPTION  TO  STOCK.— The  persons  named  in  the 
articles  of  incorporation,  or  a  majority  of  them,  shall  be  commissioners  to  open  books 
for  the  subscription  of  stock  in  the  company,  at  such  times  and  places  as  they  deem 
convenient  and  proper,  and  shall  keep  the  same  open  until  the  full  amount  specified 
in  the  articles  is  subscribed.     (April  27,  1872,  69  v.  140,   §  4;  S.  &  S.  206.) 

See  §  3242  and  notes  thereto.  Recovery  by   company  on  verbal   prom- 

ise. 

A  verbal  promise  to  take  shares,  while  the 
stock  is  being  subscribed,  which  is  necessary 
to  authorize  an  organization,  does  not  con- 
stitute the  promisor  a  stockholder  or  a  mem- 
ber of  such  corporation,  and  a  promise  to  pay 
for  such  shares  is  without  sufficient  considera-t 
tion.  A  recovery  on  such  promise  cannot  be 
had,  in  the  absence  of  facts  showing  that  the 
promisor  is  estopped  from  setting  up  such 
want  of  consideration. —  Fanning  v.  Ins.  Co., 
37  Oh.  St.  339   (1881). 


Contract    to     take     shares    must    be    in 
writing. 

To  entitle  a  person  to  become  a  member  of 
an  insurance  company  organized  under  this 
act  his  contract  to  take  shares  therein  must 
be  in  writing  and  be  mutually  binding  on 
both  parties. —  Fanning  v.  Ins.  Co.,  37  Oh.  St. 
339   (1881). 


§  3636.  ELECTION  OF  DIRECTORS.  —  Within  one  month  after  the  subscription 
books  are  filled,  and  the  articles  of  incorporation  filed  with  the  secretary  of  state,  a 
majority  of  subscribers  to  the  stock  shall  hold  a  meeting  for  the  election  of  not  less 
than  five  nor  more  than  twenty-one  directors,  who  must  be  stockholders  or  members, 
and   the  number   thereof   may   at   any   time   thereafter   be    increased    or   diminished 


Insurance  Companies  Other  Than   I  411 


Capital,  etc.,  Investment  of. 


between  the  same  limits,  at  the  will  of  the  stockholder!   repi 

the  stock  oi'  a  majority  of  the  members;  each  member  of  a  mutual  U   Id- 

entified to  one  vote,  and  each  stockholder  in  other  companies  shall  one 

vote  for  each  share  of  stock  he  holds;  and  mutual  companies  may,  if  tl. 
in  their  by-laws,  elect  directors  for  the  term  of  three  years,  the  term  ol 
third  of  the  number  elected  to  expire  each  year,   and  those  wh  h<st 

number  of  votes  at  the  first  election  to  serve  for  the  longest  term.     (April 
70  v.   180,  §  5;  April  10,   1863,  60  v.  75,  $   1 ;  S.   &  S.  2i7;  S.  &  8.  S 

§  3637.  HOW  COMPANY  MUST  INVEST  ITS  CAPITAL.  —  No  company  organ- 
ized under  this  chapter,  or  incorporated  under  any  law  of  this  state,  for  the  purposes 
provided  in  section  thirty-six  hundred  and  thirty-two,  shall  invest  its  capital  oi 
part  thereof,  otherwise  than  in:  1.  United  States  bonds;  2.  Ohio  state  bonds; 
3.  Bonds  of  a  county,  township,  or  municipal  corporation  in  this  state,  issued  in 
conformity  with  law;  4.  Bonds  and  mortgages  on  unincumbered  real  estate  within 
this  state,  worth  double  the  amount  loaned  thereon;  if  the  amount  loaned  shall 
exceed  one-half  the  value  of  the  land  mortgaged  exclusive  of  structures  thereon, 
such  structures  shall  be  insured  in  an  authorized  fire  insurance  company  ot 
the  company  making  such  loan  in  an  amount  not  less  than  the  difference  between 
one-half  the  value  of  such  land  exclusive  of  structures,  and  the  amount  loaned,  and 
the  policy  assigned  to  the  mortgagee;  5.  The  stock  of  any  national  bank  located  in 
this  state,  organized  under  the  provisions  of  an  act  of  congress  entitled  '•  An  act  to 
provide  a  national  currency,  secured  by  the  pledge  of  United  States  stocks,  and  to 
provide  for  the  circulation  and  redemption  thereof,"  approved  February  25,  1863, 
and  acts  amendatory  thereof  and  supplementary  thereto;  or,  6.  First  mortgage  bonds 
of  railroads  within  this  state,  upon  which  default  in  the  payment  of  the  interest 
coupons  has  not  been  made  within  three  years  previous  to  the  purchase  thereof. 
(March  19,  1902,  95  v.  59;  April  22,  1873,  70  v.  147,  §  6;  S.  &  S.  206.) 

See  §  3501   and  notes  thereto. 

§  3638.  HOW  IT  MAY  INVEST  ITS  ACCUMULATIONS.  —  Funds  accumulated 
in  the  course  of  business,  or  surplus  money  over  and  above  the  capital  stock  of  a 
company,  may  be  loaned  on  or  invested  in  the  above  named  securities,  or,  1.  Bonds 
and  mortgages  on  unincumbered  real  estate  within  the  state,  worth  fifty  per  cent, 
more  than  the  sum  loaned  thereon,  exclusive  of  buildings,  unless  such  buildings  are 
insured  in  some  company  authorized  to  do  business  in  this  state,  and  the  policy  is 
transferred  to  a  company  making  the  investment;  2.  Bonds  of  any  state  of  the  United 
States;  3.  Stocks,  bonds,  or  other  evidences  of  indebtedness  of  any  solvent,  dividend- 
paying  institution  incorporated  under  the  laws  of  this  or  any  other  state,  or  of  the 
United  States,  except  its  own  stock;  or,  4.  Negotiable  promissory  notes  maturing  in 
not  more  than  six  months  from  the  date  thereof,  secured  by  collateral  security  through 
the  transfer  of  any  of  the  classes  of  securities  above  described  in  this  or  the  preceding 
section,  with  absolute  power  of  sale  within  twenty  days  after  default  in  payment  at 
maturity.     (April  22,  1873,  70  v.   147,  §  6.) 

credit    the   note   of  one    insured   by   tl  i 


pany,  and  i  indemnity  for 

the  purpose  of  setting  off  bucd   note  against 
the  claim.    The  company  cannol  ho 
to  such  nol 


See  notes  to  §  3598. 

Investments  niust  be  authorized. 

A  company  authorized  by  its  charter  to  in- 
vest its  funds  as  should  be  deemed  best  by 
the  directors,  has  no  power  to  purchase  upon  .  5  Oh.   St.   60    (IE 

§  3639.  LIMITATION  ON  THE  POWERS  OF  INVESTMENT.  —  No  empany 
shall  own  more  than  one-fourth  of  the  capital  stock  of  any  national  bank,  nor  invest 
in  nor  loan  on  the  stocks  and  bonds,  both  included,  of  any  railroad  company,  to  an 
extent  exceeding  one-tenth  of  its  own  capital,  nor  in  the  aggregate  shall  the  invest- 
ment in  and  loan  on  all  railroad  property  exceed  one-fourth  of  its  capital;  not  more 


412  Private  Corporations  in  Ohio. 

Examinations;  Powers  of  Companies,  etc.,   §§  3640,  3641. 

than  one-half  of  its  capital  shall  be  loaned  on  mortgage  of  real  estate,  as  above  pro- 
vided for  the  investment  of  capital,  and  not  more  than  one-tenth  of  the  capital  actu- 
ally existing  of  any  company  shall  be  invested  in  a  single  mortgage;  the  current 
market  value  of  all  such  stocks,  bonds,  or  other  evidences  of  indebtedness  as  above 
mentioned,  in  which  the  accumulations  or  surplus  money  over  and  above  the  capital 
stock  of  any  insurance  company  may  be  loaned  or  invested,  shall  be  at  all  times  dur- 
ing the  continuance  of  such  loans  at  least  twenty  per  cent,  more  than  the  sum  loan:d 
thereon;  and  if  any  investment  or  loan  be  made  in  a  manner  not  authorized  by  this 
chapter,  the  directors  who  make  or  authorize  the  same  shall  be  personally  liable  to 
the  stockholders  for  any  loss  occasioned  thereby;  but  insurance  companies  organ- 
ized under  the  laws  of  this  state,  now  doing  business,  shall  not  be  compelled  to  change 
any  investment  made  in  accordance  with  the  acts  heretofore  passed  regulating  such 
companies.     (April  22,  1873,  70  v.   147,  §  6.) 

§  3640.  EXAMINATION  BY  THE  SUPERINTENDENT.—  When  a  company 
notifies  the  superintendent  of  insurance  that  the  proceedings  required  by  the  preced- 
ing sections  have  been  had,  he  shall  make  an  examination  of  the  condition  of  the 
company,  and  if  he  find  that  the  capital  required  of  the  company  has  been  paid  in 
and  is  possessed  by  it  in  money,  or  in  such  stocks,  bonds,  and  mortgages  as  are 
required  by  this  chapter,  he  shall  so  certify;  or  he  may  cause  such  examination  to  be 
made  by  some  disinterested  person  specially  appointed  by  him  for  the  purpose,  who 
shall  certify  his  finding  to  the  superintendent  under  oath;  the  signers  of  the  articles 
of  incorporation,  or  the  officers  of  the  company,  shall  also  certify,  under  oath,  that 
the  capital  exhibited  is,  bona  fide,  the  property  of  the  company;  such  certificates 
shall  be  filed  in  the  office  of  the  superintendent,  who  shall  thereupon  deliver  to  such 
company  a  certified  copy  thereof,  which,  on  being  placed  on  record  in  the  office  of  the 
recorder  of  the  county  wherein  the  company  is  to  be  located,  in  a  book  provided  for 
that  purpose  by  him,  shall  be  its  authority  to  commence  business  and  issue  policies; 
and  such  certified  copy  of  the  certificates  may  be  used  in  evidence  for  or  against  the 
company,  with  the  same  effect  as  the  original.  (April  27,  1872,  69  v.  140,  §  7;  S.  & 
S.  207.) 

§  3641.  POWERS  OF  COMPANIES;  LIMITATION;  GUARANTY  COMPANIES 
MUST  MAKE  DEPOSIT;  CORPORATE  POWER  CANNOT  BE  DENIED.  —  A  com- 
pany organized  under  this  chapter  may: 

1.  Insure  houses,  buildings  and  all  other  kinds  of  property  against  loss  or  dam- 
age by  fire  and  lightning  and  tornadoes,  in  and  out  of  the  state,  and  make  all  kinds 
of  insurance  on  goods,  merchandise  and  other  property  in  the  course  of  transporta- 
tion, whether  on  land  or  water,  or  on  any  vessel  or  boat  wherever  the  same  may  be. 

2.  Make  insurance  on  the  health  of  individuals  and  against  personal  injury,  dis- 
ablement or  death,  resulting  from  traveling  or  general  accidents  by  land  and  water; 
make  insurance  against  loss  or  damage  resulting  from  accident  to  property,  from 
cause  other  than  fire  or  lightning;  guarantee  the  fidelity  of  persons  holding  places  of 
public  or  private  trust,  who  may  be  required  to,  or  do,  in  their  trust  capacity,  receive, 
hold,  control,  disburse  public  or  private  moneys  or  property;  guarantee  the  perform- 
ance of  contracts  other  than  insurance  policies,  guarantee  the  validity  of  titles  to  real 
property,  and  execute  and  guarantee  bonds  and  undertakings  required  or  permitted 
in  all  actions  or  proceedings,  or  by  law  allowed. 

3.  Make  insurance  on  the  lives  of  horses,  cattle  or  other  live  stock  against  loss 
by  death  caused  by  accident,  disease,  fire  or  lightning,  and  against  loss  by  theft  and 
damage  by  accident;  provided,  that  such  company  shall  have  a  capital  of  one  hundred 
thousand  dollars,  with  at  least  twenty-five  (25)  per  cent,  of  the  capital  stock  paid  up. 

4.  Receive  on  deposit  and  insure  the  safe-keeping  of  books,  papers,  moneys, 
stocks,  bonds  and  all  kinds  of  personal  property;  lend  money  on  bottomry  or  respon- 


[nsurance  Companies  Other  Than  Life.  413 

Insurance  against  Lightning,  Explosions,  etc.,  ||  3G41a,  3041b. 


dentia,  and  cause  itself  to  be  insured  against  any  loss  or  riBk  it  may  have  incurred 
in  the  course  of  its  business,  and  upon  the  interest  which  it  may  have  In  any  pi": 
by  means  of  any  loan  which  it  may  have  made  on  mortgages,  bottomry  or  respon- 
dentia, and  generally  to  do  and  perform  all  other  matters  and  things  proper  to  pro- 
mote these  objects;  but  no  company  shall  be  organized  to  issue  policies  of  insurance 
for  more  than  one  of  the  above  four  mentioned  purposes,  and  no  company  organized 
for  either  one  of  said  purposes  shall  issue  policies  of  insurance  of  any  other;  provid  d, 
however,  that  no  company,  organized  under  the  laws  of  the  state  to  transact  the  busi- 
ness of  guaranteeing  the  fidelity  of  persons  holding  places  of  public  or  private  trust, 
or  of  executing  or  guaranteeing  bonds  or  undertakings,  as  aforesaid,  shall  commence 
business  until  it  has  deposited  with  the  superintendent  of  insurance  two  hundred 
thousand  dollars  in  securities  permitted  by  sections  3637  and  3638  of  the  Revised 
Statutes,  which  shall  be  held  by  said  superintendent  for  the  benefit  and  security  of 
all  the  policy  holders  of  the  company,  and  which  shall  not  be  received  by  'the  said 
superintendent  at  a  rate  above  their  par  value;  nor  shall  a  company,  organized  under 
the  laws  of  another  state,  be  licensed  to  transact  any  such  business  in  this  state  unless 
at  least  two  hundred  thousand  dollars  of  its  assets  are  invested  in  securities  pernrtted 
by  sections  3637  and  3638  of  the  Revised  Statutes  of  this  state,  and  such  securities 
are  deposited  with  the  superintendent  of  insurance  of  this  state,  or  the  superintendent 
of  insurance  or  other  officer  of  the  state  in  which  such  company  was  organized,  desig- 
nated by  the  laws  of  such  state  to  receive  the  same;  and  if  such  securities  are  depos- 
ited with  the  superintendent  of  insurance  or  other  officer  of  another  state,  the 
superintendent  of  insurance  of  this  state  shall  be  furnished  with  the  certificate  of 
such  state  officer  under  his  hand  and  official  seal  that  he,  as  such  officer,  holds  in  trust 
on  deposit  for  the  benefit  of  all  the  policy  holders  of  such  company  the  securities  above 
mentioned,  giving  the  items  of  such  securities,  and  stating  that  he  is  satisfied  such 
securities  are  worth  at  least  two  hundred  thousand  dollars;  the  securities  so  deposited 
with  the  superintendent  of  insurance  may  be  exchanged  from  time  to  time  for  other 
like  securities,  and  so  long  as  the  corporation  depositing  the  securities  shall  continue 
solvent  and  comply  with  the  laws  of  :his  state  it  shall  be  permitted  by  the  superin- 
tendent of  insurance  to  collect  the  interest  or  dividend  on  such  deposit;  provided, 
also,  that  any  company  which  shall  execute  any  bond  as  surety  under  the  provisions 
of  this  act  shall  be  estopped  in  any  proceeding  to  enforce  the  liability  which  it  shall 
have  assumed  to  incur,  to  deny  its  corporate  power  to  execute  such  instrument  or 
assume  such  liability;  and  the  superintendent  of  insurance  and  other  officers  of  this 
state  having  the  control  or  custody  of  any  deposit  of  $30,000  in  securities  heretofore 
required  to  be  made  by  companies  of  other  states  under  section  3641  of  the  Revised 
Statutes  of  Ohio  shall  deliver  the  same  to  the  depositors  thereof  and  said  officers  shall 
he  and  are  hereby  relieved  from  further  custody  control  or  liability  for  or  in  respect 
of  the  same  or  the  surrender  thereof  from  and  after  the  passage  of  this  act.  (April 
1  1902  95  v.  81;  April  21,  1898,  93  v.  170;  April  13.  1894.  91  v.  138;  April  11. 
1893,  90  v.  157;  March  16,  1891,  88  v.  102;  April  30.  1885.  82  v.  18o;  R.  S. 
188o';  April  14,  1874,  71  v.  65,  §  8;  S.  &  S.  299.) 
See  §  3593  and  notes  thereto. 

§  3641a.  FIRE  INSURANCE  COMPANIES  MAY  INSURE  AGAINST  LIGHT- 
NING EXPLOSION  AND  TORNADOES.  —  All  companies  heretofore  organized,  or 
that  may  hereafter  be  organized,  for  the  purpose  of  insuring  against  loss  or  damage 
hy  fire,  may  insure  against  loss  or  damage  by  lightning,  explosions  from  gas.  dyna- 
mite, gunpowder,  and  other  like  explosions  and  tornadoes.  (April  9.  189.,  88  v.  304; 
March  27,   1884,  81  v.  93;  April  18,  1883,  80  v.   170.) 

§  3641b  ACCIDENT  AND  GUARANTY  COMPANIES  MAY  INSURE  AGAINST 
ACCIDENTS  TO   EMPLOYES,    ETC.;   DEPOSIT.  -  A   company   heretofore  organ^d 


414 


Private  Corporations  in  Ohio. 


Guaranty  Companies,  Bonds  of,  etc.,  §  3641c. 


or  that  may  hereafter  be  organized  to  do  business  under  clause  2  of  section  3641b,* 
chapter  11,  title  2  of  the  Revised  Statutes  of  Ohio,  may  make  insurance  to  indemnify 
employers  against  loss  or  damage  for  personal  injury  or  death,  resulting  from  acci- 
dents to  employes,  or  persons  other  than  employes,  subject,  however,  to  the  restric- 
tions in  said  section  provided;  and,  provided,  that  any  company  incorporated  by  or 
organized  under  the  laws  of  any  other  state,  or  of  a  foreign  government  that  is  now 
doing  business  in  this  state  by  virtue  of  original  section  three  thousand  six  hundred 
and  forty-one  b,*  shall,  on  or  before  the  first  day  of  April  after  the  passage  of  this 
act,  and  any  company  incorporated  by  or  organized  under  the  laws  of  any  other  state 
or  government  that  may  desire  to  do  business  in  this  state,  shall,  before  being  author- 
ized co  transact  such  business,  deposit  with  the  superintendent  of  insurance,  for  the 
benefit  and  security  of  the  policy-holders  residing  in  this  state,  a  sum  not  less  than 
fifty  thousand  dollars,  in  bonds  of  the  United  States  or  the  state  of  Ohio,  or  of  any 
city,  county,  township  or  other  municipality  in  the  state  of  Ohio,  which  shall  not  be 
received  by  the  superintendent  at  a  rate  above  their  par  value;  the  securities  so 
deposited  may  be  exchanged  from  time  to  time  for  other  like  securities;  so  long  as 
the  company  so  depositing  continues  solvent  and  complies  with  the  laws  of  this  state, 
it  shall  be  permitted  by  the  superintendent  to  collect  the  interest  or  dividends  on  such 
deposits.  Said  deposit  shall  be  held  by  the  superintendent  of  insurance  for -the  bene- 
fit, security  and  protection  of  the  policy-holders  of  the  company  residing  within  this 
state;  and  it  shall  be  stipulated  by  the  company  that  such  deposit  is  made,  and  such 
sum  set  aside  from  the  general  assets  for  that  purpose,  the  same  to  be  held  until  all 
(claims  of  policy-holders  within,  this  state  are  adjusted.  Provided  further,  that  the 
provisions  of  chapter  two,  title  two  of  the  Revised  Statutes  of  Ohio,  so  far  as  the  same 
may  be  applicable  and  not  inconsistent  with  the  provisions  of  this  section  shall  apply 
to  such  companies  organized  under  or  incorporated  by  the  laws  of  another  state  or 
government.     (April  13,   1894,  91  v.  352;  April  9,   1891,  88  v.  304.) 

'     *  "  Section  3641b  "  should  be  "  section  3641  " 
as    will    be    manifest  by   referring   to   original 


.  3641b  in  88  v.  304. 
See  §  3593  and  notes  thereto. 

Immediate   notice;   power   of   agent. 

In  a  policy  which  insures  against  liability 
for  injuries,  a  stipulation  requiring  immediate 
notice  and  information  is  of  the  essence  of  the 
contract,  and  cannot  be  waived  by  an  agent 
without  authority  therefor.'— Travelers'  Ins. 
Co.  v.  Myers  et  al.,  44  W.  L.  B.  17  (1900). 

Agent's  knowledge  is  not  notice. 

That  the  agent  who  had  taken  the  insur- 
ance had  heard  of  the  accident  is  not  such  no- 
tice as  the  policy  requires. — American  Acc'dt. 
Co.  v.  Card,  13  C.  C.  154  (1897):  s.  c,  7  C.  D. 
504;  affd.  without  report,  60  Oh.  St.  583 
(1899). 

What  is  "  immediate  notice*" 

This  term  in  the  policy  means  written  no- 
tice within  a  reasonable  time,  under  the  cir- 
cumstances of  the  case;  and  where  the  facts 
are  not  disputed,  what  is  reasonable  time  is 
a    question    of    law.— Travelers'    Ins.    Co.    v. 


Myers,  44  W.  L.  B.  17  (1900);  American  Aoe'dt. 
Co.  v.  Card,  13  C.  C.  154  (1897)  ;  s.  c,  7  C.  D. 
504,  affd.  without  report,  60  Ohio  St.  45 
(1899)  ;  Crane  v.  Standard  Life  Assn..  3  N.  P. 
318  (1890),  4  N.  P.  309  (1896);  affd.  no  re- 
port, 59  Oh.  St.   617    (1898). 

Ignorance  as  to  happening  of  accident 
or  existence  of  policy,  as  to  affecting 
notice  to  company. 

American  Acc'dt.  Co.  v.  Card,  13  C.  C.  154 
(1897)  ;  s.  c,  7  C.  D.  504,  affd.  no  report,  60 
Oh  St.  583  (1899):  Crane  v.  Standard  Life 
Assn.,  3  N.  P.  318  (1896).  4  N.  P.  309  (1896)  ; 
affd.  no  report,  59  Oh.  St.  617  (1898);  Cold- 
ham  v.  Ins.  Co.,  2  N.  P.  358    (1S95). 

Notice   of  agent's   authority. 

Y\  hen  such  policy  contains  a  stipulation 
that  "  no  agent  has  authority  to  waive  or 
alter  anything  in  the  policy  contained,"  and 
the  same  is  accepted  by  the  assured,  it  is  both 
notice  to  and  an  agreement  by  the  insured 
thai  an  agent  has  no  authority  to  waive  or 
alter  anything  contained  in  the  policy- 
Travelers'  Ins.  Co.  v.  Myers.  44  W.  L.  B.  17 
(1900).  See  as  to  powers  of  agent,  notes  to 
§  3644. 


§  3641c.  SUFFICIENCY  OF  BONDS,  ETC.,  EXECUTED  BY  COMPANIES; 
OTHER  BONDS.—  In  all  cases  in  which  any  bond,  recognizance  or  undertaking  is 
now,  or  hereafter  may  be  required  or  permitted  by  law,  with  one  or  more  sureties, 


Insurance  Companies  Other  Than   Life.  415 

Directors  —  By-laws  —  Liability  under  Pol 


the  execution  of  the  same  or  the  guaranteeing  thereof,  as  the  cas>  .   as  sola 

surety,  shall  be  sufficient  by  a  company  authorized  to  guarantee  tl  per- 

sons holding  places  of  public  or  private  trust,  to  guaranty 
tracts  other  than  insurance  policies,  and  to  execute  and  guarantee  b 
takings  in  actions  or  proceedings  or  by  law  allowed;  and  when  so  exc; 
teed,  shall  be  in  ail  respects,  a  full  and  complete  compliance  with  every 
of   law,   ordinance,  rule  or  regulation   thj.^,   such  bond,   undertaking   or  nee 

shall  be  executed  and  guaranteed  by  one  surety  or  two  or  more  sui'  uch 

sureties  shall  be  residents  or  house-holders  or  freeholders;  and   any  judge,  court  or 
officer,  whose  duty  it  is  to  pass  upon  the  account  of  any  assignee,  trustee,  receiver, 
guardian,  executor,  administrator  or  other  fiduciary,  required  by  law  to  give  boi  td 
such,  and  whenever  any  such  assignee,  receiver,  trustee,  guardian,  execu' 
trator  or  other  fiduciary,  has  given  bond  with  a  surety  company  as  surety  thereon, 
shall  allow,  in  the  settlement  of  the  account  of  such  assignee,  receiver,  ti  I  ird- 

ian,  executor,  administrator  or  other  fiduciary,  a  reasonable  sum  paid  a  company 
authorized  under  the  laws  of  this  state  so  to  do,  for  becoming  his  surety  on  such  bond, 
not  exceeding,  however,  one-half  of  one  per  cent,  per  annum  on  the  amount  of  <uch 
bond;  unless  such  bond  shall  be  in  double  the  amount  of  the  liability  of  such  fiduciary, 
when  the  sum  so  allowed  shall  not  exceed  the  sum  of  one-fourth  of  one  per  cent, 
annum;  provided,  however,  that  such  company  has  complied  and  continued  to  comply 
with  the  laws  of  this  state  relative  to  such  companies,  and  with  such  requirements 
as  to  justification,  as  may  be  prescribed  by  the  head  of  the  department,  court,  judge, 
or  officer  required  to  approve  or  accept  the  same,  and  provided  that  such  bond,  recog- 
nizance or  undertaking  be  approved  by  the  head  of  the  department,  court,  judge  or 
officer  required  to  approve  or  accept  the  same.  This  section  shall  apply  to 
authorize  any  surety  company  above  defined  to  become  surety  upon  the  bond  required 
by  law  of  any  state  officer,  (except  the  superintendent  of  insurance.)  and  of  any 
county,  township  or  municipal  officer.  Such  surety  company  may  be  accepted  by  the 
officer  or  officers  required  to  approve  such  bond,  in  lieu  of  the  sureties  now  required 
by  law.  (April  27,  1896,  92  v.  320;  April  11,  1893,  90  v.  157;  February  3,  1891, 
88  v.   14.) 

Applies   to    cases    existing   at   the    time    statute  was   passed. 

Commercial  Bank  Assignment,  3  N.  P.  286   (1895);  s.  «•..  4  1'-. 

§  3642.  DIRECTORS  OF  INSURANCE  COMPANY  TO  ELECT  OFFICERS: 
BY-LAWS  AND  REGULATIONS.  —  The  directors  shall  choose  from  their  own  num- 
ber by  ballot,  a  president,  and  shall  fill  all  vacancies  that  may  arise  in  the  board,  or 
in  the  presidency  thereof;  the  board  of  directors,  or  a  majority  of  them,  uhen  con- 
vened at  the  office  of  the  company,  may  appoint  a  secretary  and  my  other 
agents  necessary  for  transacting  the  business  of  the  company,  and  pay  such  salarie- 
and  take  such  securities  as  they  may  judge  reasonable;  they  may  ordain  and  establish 
by-laws  and  regulations  not  inconsistent  with  the  constitution  and  laws  of  this  stat? 
and  of  the  United  States,  as  shall  appear  to  them  necessary  for  regulating  and  con- 
ducting the  business  of  the  company;  but  no  new  by-laws  or  regulations  shall  tnke 
effect  until  the  same  has  been  approved  by  the  state  commissioner  of  insurance  a:  d 
a  copy  thereof  has  been  filed  in  the  office  of  said  commissioner,  and  they  shall  keep 
full  and  correct  records  of  their  transactions,  which  shall,  at  all  times,  be  op.  I 
the  inspection  of  the  members  or  stockholders.  (March  5.  1883.  80  v.  41:  R.  S- 
1880;  April  23,   1872,  69  v.  140,   §    10;  S.  &  S.  208.) 

§  3643  EXTENT  OF  LIABILITY  UNDER  POLICY  OF  INSURANCE.  -Any 
person,  company,  or  association,  hereafter  insuring  any  building  or  structure  against 
loss  or  damage  by  fire  or  lightning,  by  a  renewal  of  a  policy  heretofore  issued  or 
otherwise,  shall  cause  such  building  or  structure  to  be  examined  by  an  agent  of  the 


416 


Private  Corporations  in  Ohio. 


Liability  under  Policies,  §  3643. 


insurer,  and  a  full  description  thereof  to  be  made,  and  the  insurable  value  thereof  to 
be  fixed  by  such  agent;  in  the  absence  of  any  change  increasing  the  risk  without  the 
consent  of  the  insurers,  and  also  of  intentional  fraud  on  the  part  of  the  insured,  in 
case  of  total  loss,  the  whole  amount  mentioned  in  the  policy  or  renewal  upon  which 
the  insurers  receive  a  premium  shall  be  paid,  and  in  case  of  a  partial  loss  the  full 
amount  of  the  partial  loss  shall  be  paid;  and  in  case  there  are  two  or  more  policies 
upon  the  property,  each  policy  shall  contribute  to  the  payment  of  the  whole  or  the 
partial  loss  in  proportion  to  the  amount  of  insurance  mentioned  in  each  policy;  but 
in  no  case  shall  the  insurer  be  required  to  pay  more  than  the  amount  mentioned  in  its 
policy.     (March  5,   1879,  76  v.  26,  §    1.) 


See   §    3G91. 

To  what  policies  applicable. 

Section  applies  to  all  policies  issued  since  it 
went  into  effect,  i.  e.,  July  1,  1879,  insuring 
any  building  or  structure  in  this  state,  against 
loss  by  fire.— Ins.  Co.  v.  'Leslie,  47  Oh.  St. 
•409    (1890). 

Cannot  be  waived  by  agreement. 

Founded  on  grounds  of  public  policy  and 
the  neglect  of  company's  agent  to  make  the 
required  examination  and  fix  the  insurable 
value,  cannot  defeat  the  operation  of  the 
statute.  It  cannot  be  regarded  as  conferring 
upon  the  assured  a  mere  personal  privilege, 
which  can  be  waived  by  agreement. —  Pennsyl- 
vania Ins.  Co.  v.  Drackett,  44  W.  L.  B.  71 
(1900);  Ins.  Co.  v.  Leslie,  47  Oh.  St.  409.  417 
(1890)  ;  Ins.  Co.  v.  Luce,  11  C.  C.  476  (1896)  ; 
Seyk  v.  Ins.  Co.,  74  Wis.  67  (1889). 

'Rebuilding     clause     repugnant     to     this 
section   and  void. 

See  Milwaukee  Ins.  Co.  v.  Russell,  65  Oh. 
St.  230    (1901). 

Conditions   in   policy    inconsistent    with 
section. 

Conditions  in  policy  providing  for  a  differ- 
ent measure  of  liability  are  qualified  by  this 
section.     Such  are. 

Submission  to  appraisers  to  decide  loss. 

Phoenix  Ins.  Co.  v.  Port  Clinton,  etc.,  Co., 
14  C.  C.  160,  167  (1898);  s.  c,  7  C.  D.  468: 
affirmed,  61  Oh.  St.  643;  Ins.  Co.  v.  Leslie.  47 
Oh.  St.  409,  417  (1890);  Ins.  Co.  v.  Luce,  11 
C.  C.  476  (1896)  ;  s.  c,  5  C.  D.  210;  Seyk  v.  Ins. 
Co.,  74  Wis.  67    (1889). 


Arbitration  clause  invalid  even  as  to 
partial  loss. 

Brown  v.  Hartford  Fire  Ins.  Co.,  12  Dec.  358 
(1902). 

That  loss  shall  be  estimated  according 
to  actual  value  at  time  of  fire. 

Ins.  Co.  v.  Leslie,  47  Oh.  St.  409,  417  (1890)  ; 
Thompson  v.  Ins.  Co.,  45  Wis.  388  (1878). 

That  loss  shall  be  estimated  according 
to  cost  of  replacing  property  de- 
stroyed. 

Ins.  Co.  v.  Leslie,  47  Oh.  St.  417    (1890). 


That  policy  shall  be  void  for  nonoccu- 
pancy. 

Moody  v.  Ins.  Co.,  52  Oh.  St.  12,  23  (1894). 

That  company  shall  have  right  to  re- 
build. 

Russell  v.  Ins.  Co.,  6  N.  P.  325  (1899)  ;  s.  c, 
8  Dec.  613. 

There   must  be  increased  risk  or  fraud. 

In  the  absence  of  any  increase  in  the  risk 
or  intentional  fraud,  the  measure  of  liability 
in  case  of  total  loss  is  the  full  amount  named 
in  the  policy. —  Ins.  Co.  v.  Leslie,  47  Oh.  St. 
409  (1890);  Ins.  Co.  v.  Hull,  51  Oh.  St.  270, 
278.  (1894)  :  Sun  Mutual  Ins.  Co.  v.  Hock,  8  C. 
C.  341  (1894)  ;  s.  c,  4  C.  D.  553;  Moody  v.  Ins. 
Co.,  52  Oh.  St.  12,  23  (1894)  :  German  Ins.  Co. 
v.  Mirick,  38  W.  L.  B.  172  (1897)  ;  Hubbard  v. 
Executor  et  al.  6  N.  P.  249  (1899);  s.  c,  8 
Dec.  Ill;  Hilliard  v.  Ins.  Co.,  7  N.  P.  561 
(1895)  ;  s.  c,  5  Dec.  576. 

A  condition  of  premises  reasonably  ap- 
parent, no  defense. 

Where  there  has  been  no  intentional  fraud, 
a  condition  of  the  property  at  the  time  of  in- 
surance, which  the  agent  by  making  the  re- 
quired examination  could  have  reasonably 
discovered,  cannot  prevail  to  defeat  recovery 
on  the  policy.—  Ins.  Co.  v.  Leslie,  47  Oh.  St. 
409  (1890)  ;  United,  etc.,  Ins.  Co.  v.  Kukral  et 
al.,  7  C.  C.  356  (1S93)  ;  s.  c,  4  C.  D.  633. 

Value  of  property  or  statements  re- 
garding it,  immaterial. 

Where  there  is  no  intentional  fraud,  it  is 
not  competent  for  the  company  to  prove  that 
the  value  of  the  property  is  less  than  the 
amount  of  the  policy,  and  statements  of  the 
assured  in  the  application,  in  reference  to 
the  value  of  the  property  and  its  condition,  are 
immaterial.— Ins.  Co.  v.  Leslie.  47  Oh.  St. 
409  (1890)  ;  United  Ins.  Co.  v.  Kukral  et  al.,  7 
C.  C.  356  (1893)  ;  s.  c,  4  C.  D.  633;  Schilds  v. 
Ins.  Co.,  6  N.  P.  134  (1899)  ;  s.  c.  8  Dec  45; 
Hilliard  v.  Ins.  Co.,  7  N.  P.  561  (1S95);  s.  c, 
5  Dec.  576;  Hubbard  v.  Executor  et  al..  6  N. 
P.  249  (1899)  ;  s.  c,  8  Dec.  I'll.  But  see  Farm- 
ers' Ins.  Co.  v.  McCluckin,  40  Oh.  St.  42,  infra. 

As  to  election  to  rebuild  and  com- 
promise -with  portion  of  companies 
upon  liability  of  others. 

Good  v.  Ins.  Co.,  43  Oh.  St.  394  (1885). 


Insurance  Companies  Other  Than   Life. 


417 


Liability  under  Policies,  8  3643. 


Examination  required  relates  to  physi- 
cal condition. 

The  examination  required  t<>  be  made  re- 
lates to  tlio  physical  condition  of  the  prem- 
ises, such  as  an  inspection  would  <li 
"The  change"  mentioned  in  statute  relates 
to  some  physical  change. —  Webster  el  a  I.  v, 
Ins.  Co.,  53'0h.  St.  558;  affirming  7  C.  C.  511 
(1895);    s.  c,  4  C.  D.  704. 

Has     no     relation     to     incumbrances     or 
title. 

The  examination  required  does  not  relate 
to  incumbrances  or  to  the  title  of  the  premi- 
ses. Nor  does  the  "change"  have  reference 
to  a  change  in  incumbrances. —  Webster  et 
al.  v.  Ins.  Co.,  53  Oh.  St.  558;  affirming  7  C.  C. 
511    (1895);   s.  c,  4  C.  D.   704. 

United,  etc.,  Ins.  Co.  v.  Kukral  et  al.,  7  C.  C. 
35b;  s.  c,  4  C.  D.  033.  and  People's,  etc.  Ins. 
Co.  v.  Bowersox,  Rec'r,  5  C.  C.  444;  s.  c,  3  C. 
D.  218,  would  seem,  in  the  decisions  of  the  cir- 
cuit court,  to  present  the  doctrines  that  the 
statute  applies  to  incumbrances.  These  deci- 
sions were  affirmed  without  report  in  51  Oh. 
St.  009  (1894),  and  51  Oh.  St.  567  (1894), 
respectively.  However,  in  Webster  et  al.  v. 
Ins.  Co.,  supra,  the  court  says,  p.  569,  that 
its  decision  in  this  case  is  not  in  conflict 
with  the  two  former  cases.  An  explanation 
for  this  seeming  conflict  may  be  found  in 
Ins.  Co.  v.  Bowersox,  supra,  where  it  is  held 
that  a  judgment  of  cognovit  is  not  an  in- 
cumbrance; and  in  Sun  Fire  Office  v.  (  lark. 
53  Oh.  St.  414  (1895),  in  which  it  is  held: 
"A  policy  containing  a  provision,  that  if 
any  change  takes  place  in  the  title,  interest, 
or  possession  of  the  property,  by  sale,  trans- 
fer, or  conveyance,  without  the  consent  of 
the  insurer,  the  policy  shall  become  void,  is 
not  invalidated  by  the  making  of  a  mortgage." 

See  also  Henderson  v.  Ins.  Co.,  2  N.  P.  17 
(1894)  ;  s.  c,  2  Dec.  189,  in  which  it  was  held 
that  the  statute  relates  to  incumbrances. 

Additional  insurance  is  increase  in  risk. 

Additional  insurance  increases  the  risk  as  a 
matter  of  law,  hence  a  condition  against  it 
does  not  come  within  the  statute-  Sun  Fire 
Office  v.  Clark,  53  Oh.  St.  414,  427  (1895). 

Submission  to   appraisal   after  loss,   not 
binding. 

Voluntarily  submitting  value  of  property 
destroyed  to  appraisal,  or  an  agreement  to 
arbitrate,  does  not  waive  the  right  to  insi.-t 
upon  full  pavment  of  the  policv. —  Ins.  Co.  v. 
Luce,  11  C.  C.  476  (1896)  ;  s.  c,  5  C.  D.  210; 
Pennsylvania  Ins.  Co.  v.  Leslie.  47  Oh.  St.  409, 
417  (1890);  Ins.  Co.  v.  Drackett.  44  W.  L.  B. 
71  (1900)  ;  Seyk  v.  Ins.  Co..  74  Wis.  67  (18S9). 

Claim  for  less  amount  not  an   estoppel. 

A  claim  for  less  amount  than  that  to  which 
assured  is  entitled  will  not  estop  assured  from 
claiming  full  amount;  nor  will  any  estimate 
of  value  made  by  assured  in  his  proof  of  loss 

LAW    GOV.    PRIV.    COR. —  2"J . 


affeel    hi-   righl    to  the   full   .,• 

v.    In 
I  i,  ,■ 

Applies     though     rone u 11  en t      LntVl 

in  ca  e  of  total  lo      1 1 
policy  musl   he  paid,  nut  n  it  hstandii 
concui  renl    insurance    in    of  h> 
Phoenix   In-.  <  o.  v.  Port   (  linti 

7  C   H    168;   aflh  n 
St.  643  1 1899)  i  overruling  I  incinnati  <    >fl 

V.     III-.    (    .,..    7    \Y.     I..     B.    342j     II:' 

123   Mo.   103  I  1894)  :  <  >.  ikoah  Co.  v.   I,.- 
71    Wis.   454    (1888). 

Extent   of   loss  for  jury. 

Phoenix   In-.  Co.  \.    Port   Clinton 
14  C.  C.  160;  s,  c.    7  <     I'    168;  affiri         ■     I 
St.  643    (1899). 

What    constitutes    total    loss. 

Phoenix   In-.  <  '<>.  v.    Cut    (  Linton, 
14  ('.  C  Kill;  -.  c,  7  C  D.    1'.-:   -    ...  61   I  I 
(if:;  (1899);  Pennsylvania  In-.  <  ...  v.  Drackett, 
44  W.   I..    B.  71    i  1900)  :    German   In-.  I 
Eddy,    30   Neb.    461    I  L883)  ;    In-.   Co.    i 

Flltvre.    '.HI    Tex;,-,     i;  I„- 

Co.,    155    N.    Y.    389    I  1-'.'-'  ;   Havei 
Co..    L23   Mo.    103    |  L894    :    Lindner  v.    I,;- 
93  Wis.   526    I  L896)  :    William-   v.   In-.  I 
Cal.   442    (1880). 

"What  constitutes  structure. 

A  boiler  and  engine  may  constitute  a  struc- 
ture.—Ins.  Co.  v.   Luce,   il  C.  C.  476 
s.  c,  5  C.  D.   210. 

Judgment    on    cognovit    not    an    incum- 
brance. 

A  judgment  on  cognovit  does  not 
an  incumbrance  within  t  he  meaning 
dition  which  avoids   the  policy,  if  I 
suffers   an   incumbrance   to  he  pla<  ■ 
property.. —  People's     Ens.     Co.     v. 
Rec'r,  51    Oh.  st.  567;   affirming  6   C.   C.   444 
(1894);   s.  c,  :i  <      I' 

■What   constitutes  occupancy. 

ody    v.    In-.    <  ....   52  Oh.    St.    15 
Eureka   In-.   Co.   v.    Baldwin, 
L900)  :   revi  csing   17  C.  C    I  13     -  ■  C.  D. 

lls:   in..  Co.  v.  Tucker,  92   111.  64     :- 

Insurance   of  risk  is  for  jnry. 
Eureka    In-.  Co.  v.  Baldwin. 

:    Henderson    \.    I-  N.    1'.    17 

(1894);    s.  51. 

Apparently  conflicting   decision. 

In   an  application    for  insurance  whir' 
made   a    part    of  the 
nanted   that    the   insurance   a-k>.l    I 
dwelling    did    ;  two-thii 

value.     In  an  action  <>n   I 

ioined  on   the  averment   of  tie-  company  that 
the    covenanl    was    uni  rui  .    as    ■ ;  ■ 
well  knew   when  be  made  it.      Conflicting 
dence  was  before  the  jury  on  this  point,  but 


418 


Private  Corporations  in  Ohio. 


Solicitors  —  Policies,  how  Evidenced,  S§  3644,  3645. 


the  court  directed  a  verdict  for  the  plaintiff 
for  "  the  value  of  the  property  destroyed  by 
fire  covered  by  the  policy,  not  exceeding  the 
amount  of  insurance  upon  the  part  thus  de- 
stroyed." and  refused  to  give  any  instruction 
applicable  to  the  issue  on  the  covenant.  Held, 
this  was  error. —  Farmers'  Ins.  Co.  v.  Mc- 
Clucklin,  40  Oh.   St.  42    (1884). 

(This    case    was    decided    at    the    January, 
1883,  term,  but  there  is  no  reference  made  to 


this  section,  nor  to  the  date  of  the  policy  on 
which  the  action  was  brought.) 

Action,    misjoinder. 

Where  arbitration  is  had  on  several  policies, 
an  action  must  be  brought  on  each  to  recover 
the  pro  rata  part  of  the  award.  All  the  com- 
panies cannot  be  joined  in  an  action  for  the 
whole  award. —  Marerolis  v.  London,  etc.,  Ins. 
Co.,  12  Dec.  166   (1902). 


§  3644.  WHEN  SOLICITOR  HELD  TO  BE  AGENT  OF  INSURER.  —  A  person 
who  solicits  insurance  and  procures  the  application  therefor,  shall  be  held  to  be  the 
agent  of  the  party  hereafter  issuing  a  policy  upon  such  application  or  a  renewal 
thereof,  anything  in  the  application  or  policy  to  the  contrary  notwithstanding. 
(March  5,   1879,  76  v.  26,  §  2.) 


Responsible  for  mistake  of  agent. 

A  soliciting  agent,  procuring  for  a  company 
risks  and  applications  on  which  policies  are 
issued,  is,  in  filling  up  such  application,  the 
agent  of  the  company,  and  not  the  assured; 
and  if  the  agent  makes  a  mistake  in  wrongly 
stating  facts  which  were  correctly  given  him 
by  the  insured,  the  company  is  bound  by  and 
responsible  for  such  mistake. —  Ins.  Co.  v. 
Williams,  39  Oh.  St.  584  (1883);  Phoenix  Ins. 
Co.  v.  Bowersox,  6  C.  C.  2  (1892);  s.  c,  3  C. 
D.  321;  Hilliard  v.  Ins.  Co.,  7  N.  P.  561 
(1895)  ;  s.  c,  5  Dec.  576;  Union  Ins.  Co.  v.  Mc- 
Gookey,  33  Oh.  St.  555,  566  (1878);  Phillips 
v.  Ins.  Co.,  13  C.  C.  679  (1894);  s.  c,  6  C.  D. 
266. 

Company   bound    though    agent    act    be- 
yond  authority. 

Union  Ins.  Co.  v.  McGookey,  33  Oh.  St.  555, 
566  (1878)  ;  Ohio  Farmers'  Ins.  Co.  v.  Danison, 
38  W.  L.  B.  163  (1897).  But  see  Eureka  Ins. 
Co.  v.  Baldwin,  02  Oh.  St.  36S  (1900). 

As  to  power  to  appoint   sub-agents. 

See  Krumm  v.  Jefferson  Fire  Ins.  Co.,  40 
Oh.  St.  225   (1883). 

Acts   of   sub-agent. 

A  sub-agent  duly  appointed  is  the  agent  of 
the  company,  and  his  acts  in  this  capacity  are 
binding  upon  the  company. —  Krumm  v.  Ins. 
Co.,  40  Oh.  St.  225   (1883). 

Agent  may  ■waive  payment. 

An  agent  authorized  to  make  contracts  of 
insurance  and  issue  policies  may  waive  pay- 
ment in  cash  of  the  premiums  and  give  time 
for   their   payments,   unless   restricted   by   his 


authoritv,  of  which  the  assured  has  notice. — 
Machine' Co.  v.  Ins.  Co.,  50  Oh.  St.  549   (1893). 

Whether  statements  were  correctly 
stated    by    assured,    question    for   jury. 

Phillips  v.  Ins.  Co.,  13  C.  C.  679  (1894)  ;  s.  c, 
6  C.   D.  266. 

Condition  in  policy  cannot  waive 
statute. 

Where  statute  makes  agent  the  agent  of 
the  company,  no  condition  in  the  policy  can 
make  him  the  agent  of  the  assured. —  Brew- 
ing Co.  v.  Ins.  Co.,  63  N.  W.  565  (1895);  Ins. 
Co.  v.  Chamberlain,  132  U.  S.  304  (1889). 

Agent  applying  to  another  agent  for 
policy,  both  considered  agents  of 
company. 

Central  Ohio  Ins.  Co.  v.  Provision  Co.,  13  C. 
C.  661    (1894);  s.  c,  7  C.  D.  562. 

Power  of  agent. 

See  Dayton  Ins.  Co.  v.  Kelley,  24  Oh.  St.  345 
(1873)  ;  Union  Central  Ins.  Co.' v.  Hook,  62  Oh. 
St.  256  (1900)  ;  Eureka  Ins.  Co.  v.  Baldwin,  62 
Oh.  St.  368  (1900)  ;  Travelers'  Ins.  Co.  v.  Myers 
et  al.,  44  W.  L.  B.  17  (1900);  Germania  'ins. 
Co.  v.  Shoemaker,  22  W.  L.  B.  315  (1889),  and 
cases  under  this  section. 

Power  of  agent   to   accept   cancellation. 

There  is  no  presumption  that  an  insurance 
agent  authorized  by  a  person  to  secure  in- 
surance has  authority,  after  he  has  secured 
the  policy,  to  receive  notice  of  cancellation  of 
the  policy. — -Johnson  v.  North  British,  etc., 
Ins.  Co.,  66  Oh.  St.  6  (1902). 


§  3645.  HOW  CONTRACTS  TO  BE  EVIDENCED.  —  All  policies  or  contracts  of 
insurance  made  or  entered  into  by  the  company  may  be  made  either  with  or  without 
the  seal  of  the  company;  and  they  shall  be  subscribed  by  the  president  or  such  other 
officer  as  may  be  designated  by  the  directors  for  that  purpose,  and  shall  be  attested 
by  the  secretary,  and,  when  so  subscribed  and  attested,  they  shall  be  obligatory  on  the 
company.     (April  27,  1872,  69  v.  140,  §  11;  S.  &  S.  208.) 


Insurance  Companies  Otheb  Than   Life 


419 


Stock  —  Branches   c  Eer  of, 


Does  not  limit  mode  of  creating  lia- 
bility, merely  prescribes  final  execu- 
tion. 

Where  the  charter  of  a  company  confere 
upon  it  power  "generally  to  do  and  pi 
all  things  relative  to  the  objecl  of  the 
eiation,"  and  provides  in  a  subsequenl  Bection 
that  "all  policies  or  contracts  of  insurance 
shall  lie  subscribed  by  the  president  or  some 
other  officer  designated  by  the  board  of  direct- 
ors for  that  purpose,"  the  latter  provision 
does  nut  disable  the  company  from  binding 
itself  by  contracts  for  policies  and  immediate 
insurance  executed  in  other  modes  and  by 
other  agents,  but  merely  prescribes  the 
ner  in  which  the  final  contract  or  policy  shall 
be  executed. —  Dayton  Ins.  Co.  v.  Kelley,  24 
Oh.  St.  345,  364  (1873);  Franklin  Ins.  Co.  v. 
Colt,  87  U.  S.  560   (1S74). 

Parol  contract  valid. 

In  Cockerill  v.  Ins.  Co.,  10  Ohio.  IIS  (1847), 
it  was  held  "thai  a  policy  <>f  insurance  must 
be  in  writing,''  and  "'that  a  verbal  forfeiture 
of  a  policy  is  not  binding."  But  see  Amazon 
Ins.  Co.  v.  Wall,  31  Oh.  St.  628  (1877),  where. 
on  p.  633,  Okey.  J.,  says:  "  Cockerill  v.  In-.  I  !o. 
is  virtually  overruled  in  Ins.  Co.  v.  Kelley. 
supra." 

See,  also.  Palm  v.  Ins.  Co.,  20  Ohio,  529 
(185i),  and  note  p.  537:  Ins.  Co.  v.  Shaw.  04 
U.  S.  574  (1876),  and  Machine  Co.  v.  Ins.  Co., 
50  Oh.  St.  549  (1893),  where  it  is  held:  "A 
valid  contract  of  insurance  may  be  made  by 
parol,  when  not  forbidden  by  statute  or  a 
provision  of  the  company's  charter,  which 
has  been  brought  to  the  knowledge  of  the 
other  contracting  party." —  Ins.  Co.  v.  Adler, 
71  Ala.  516  (1SS2):  Strohm  v.  In-.  Co..  33 
Wis.  650  (1873);  Walker  v.  Ins.  Co.,  56  Me. 
371   (1S68). 

Same  effect. 

Walker  v.  Ins.  Co..  56  Me.  371    (1S68). 

Policy  may  be  altered  by  parol. 

Halliday  v.  Ins.  Co..  1  W.  L.  B.  286  (1S76). 

Policy  may  be  renewed  by  parol. 

McCabe  v.  Ins.  Co..  47  L.  R.  A.   (N.  D.)  641 

(1898). 


Within     slat  ut.      ..1      f  i  .in. Is. 

In-.  Co.  \.  Spi 
born   v.    In-.   I  ...     16   I 

It      terms     oi'    conflict     .11.      <  omjili  t  .  .     its 

delivery   is   Immaterial. 

\\  leu  t  be  tei  in-  hi  an  executed  \ 
been  uncondil  ionallj 
and  it    has  t  herea  ftei 
by   the   parties,   it-  deliver)    will    b. 
as  complete,  t hough  ii   remain  in  t hi 
the  in     i  Ins.  Co., 

50  Oh.   St.   549,  557    -  1 393)  \    I  onm 
Co.  \.  Bern  l'.  71  :  affirmed,  50  0 

749    i  1897). 

Policy  only  evidence  of  contra-  I 
Policy    only   evidence   of   conf  racl 

latter     may     be     BDOWn     by     pa 

stricted     by    statute.      M  Ii.-. 

Co.,  50  Oh.  St.  549,  555   I  I  - 

When  risk  commences. 

When  a  cont  rad  of  insurance  has  ; 
pleted   by   the   party   applying   for   insu 

all    that    i-    required    on    hie 
though  the  agenl  acting  for  the  compan 
no  power  t<>   issue   the   policy,  the   risk 
niences   from    the    time  of   making   such 
tract.     Where  such  contracl   i-  mailed  I 
office  of  the  company,  from  which  th< 
to  issue,  the  company  i-  liable,  although  the 
Loss  occurs  before  t  he  a  i  rival  of  thi 

-  Palm,     Adinr..    v.     In-.    Co.,    20    Oh. 
I  1851  i  ;    Knitniu   v.    Ens.    Co.,   40  Oh.    Si 
i  L883).     See,  also,  Machine  Co.  v.   !■ 
Oh.  St.  549   i  1893). 

Approval  not  necessary. 

If  such  contract    be  fair  and  Btrictly  within 
the  rules  of  the  company,  Buch   liability 
exist,  although  there  be  printed  on  ' 
application   the   qualification   that    I 
w  ill    issue    "  it"    approA  ed  "    by    the    con  | 
Such  qualification  only  saves  the  company  the 
righl   tu  object  to  an  unfair  •  Palm, 

Admr.,  v.  In-.  Co.,  20  01       29      - 

Equity    will    compel    issuance    of    policy 
where    valid    agreement    has    been    en- 
tered into  for  it. 
Ins.  Co.  v.  Taylor,  52  Mi-.  441     1- 


§  3646.  TRANSFERS  OF  STOCK.  —  Transfers  of  stock  may  be  made  on  the  bocks 
of  the  company  by  any  shareholder,  or  his  legal  representative,  subject  to  such  reason- 
able restrictions  as  the  directors  may,  from  time  to  time,  make  in  their  by-laws,  and 
subject,  also,  to  any  provisions  of  the  laws  of  this  state  relating  to  such  transfers. 
(April  27,  1872,  69  v.   140,  §  12;  S.  &  S.  208.) 


§  3647.  HOW  STOCK  MAY  BE  INCREASED.  —  When  a  company  organized 
under  this  chapter  requires,  in  the  opinion  of  the  directors  thereof,  an  inci- 
amount  of  capital,  they  shall,  if  authorized  by  the  holders  of  two-thirds  of  the  stcck. 
file  with  the  secretary  of  state  a  certificate  setting  forth  ;he  amount  of  such  desired 
increase,  and  thereafter  such  company  shall  be  entitled  to  have  the  increased  amount 
of  capital  fixed  by  such  certificate;  and  the  examination  of  securities  composing  the 


420  Private  Corporations  in  Ohio. 

Dividends,   etc.,   §  3648. 

capital  stock  thus  increased  shall  be  made  in  the  same  manner  as  is  provided  in  sec- 
tion thirty-six  hundred  and  forty  for  capital  stock  originally  paid  in.  (April  27, 
1873,  69  v.   140,  §  13;  S.  &  S.  209.) 

§  3648.  DIVIDENDS  TO  BE  PAYABLE  FEOM  SURPLUS  PROFITS  ONLY; 
RESERVATIONS  THEREFROM;  PENALTY  FOR  VIOLATIONS  OF  THIS  SEC- 
TION; SCRIP  DIVIDENDS  BY  PARTICIPATING  OR  MUTUAL  COMPANIES; 
INTERPRETATION  OF  WORDS  "  YEAR  "  AND  "  PROFITS;  "  ACCUMULATION 
OF  A  PERMANENT  FUND;  RIGHTS  OF  POLICY  HOLDER  AFTER  DETER- 
MINATION OF  POLICY. —  No  fire  insurance  company  organized  under  any  law  of 
this  state  shall  make  any  dividend  except  from  the  surplus  profits  arising  from  its 
business;  and  in  estimating  such  profits  there  shall  be  reserved  therefrom: 

First.  A  sum  equal  to  fifty  per  cent,  of  the  whole  amount  of  premiums  on  unex- 
pired risks  and   policies,   which  is   hereby  declared  to  be  unearned  premiums. 

Second.  All  sums  due  the  company  on  bonds  and  mortgages,  bonds,  stocks,  and 
book  accounts,  of  which  no  part  of  the  principal  nor  the  interest  thereon  has  been 
paid  during  the  preceding  year,  and  on  which  an  action  has  not  been  commenced,  or 
which,  after  judgment  obtained  thereon,  has  remained  more  than  two  years  unsatis- 
fied, and  on  which  interest  has  not  been  paid;  and 

Third.  All  interest  due  or  accrued,  and  remaining  unpaid,  for  which  the  company 
does  not  hold  securities  as  hereinbefore  provided.  Any  dividend  made  contrary  to 
the  provisions  of  this  section  shall  subject  the  company  which  makes  the  same  to  a 
forfeiture  of  its  charter,  and  each  stockholder  who  receives  it  to  a  liability  to  the 
creditors  of  the  company  to  the  extent  of  the  dividend  received,  besides  the  other  pen- 
alties and  punishments  prescribed  by  law;  but  this  section  shall  not  prevent  the 
declaration  of  scrip  dividends  by  participating  or  mutual  companies,  yet  no  such  scrip 
dividend  shall  be  declared  to  an  amount  in  excess  of  or  be  paid  except  from  profits, 
after  reserving  all  sums  above  provided,  including  the  whole  amount  of  premiums 
on  unexpired  risks;  and  the  word  "  year  "  wherever  used  in  this  section  shall  be  con- 
strued to  mean  the  calendar  year,  and  the  "  profits  "  of  a  mutual  insurance  company 
are  that  portion  of  its  cash  funds  not  required  for  payment  of  losses  and  expenses  nor 
set  apart  for  any  purpose  required  by  law.  Any  such  company  may  in  its  by-laws, 
provide  for  the  accumulation  of  a  permanent  fund,  by  reserving  a  portion  of  the  net 
profits,  to  be  invested  and  be  a  reserve  for  the  security  of  the  insured.  When  the 
business  of  such  company  is  confined  to  the  state  of  Ohio,  such  reservation  shall  not 
exceed  twenty-five  per  cent,  of  said  net  profits;  and  when  the  sum  so  accumulated 
amounts  to  two  per  cent,  of  the  sum  insured  by  all  policies  in  force,  the  whole  of  the 
net  profits  thereafter  shall  be  divided  among  the  insured  at  the  expiration  of  their 
policies.  But,  any  such  company  doing  business  outside  the  state  of  Ohio  may  set 
aside  and  thereafter  maintain  a  permanent  fund  equal  to  the  minimum  amount  of 
net  cash  assets  or  capital  required  to  do  business  in  any  other  state  or  states,  accord- 
ing to  the  insurance  laws  thereof.  The  permanent  fund  so  accumulated  shall  be  used 
for  the  payment  of  losses  and  expenses,  whenever  the  cash  funds  of  the  company  in 
excess  of  an  amount  equal  to  its  liabilities  are  exhausted;  and  whenever  the  said  fund 
is  drawn  upon,  the  reservation  of  profits  as  aforesaid  shall  be  renewed  or  continued 
until  the  limits  of  accumulation  as  herein  provided  is  reached,  but  within  a  reason- 
able time  after  the  determination  of  any  policy  the  owner  thereof  shall  be  entitled  tc 
receive,  and  shall  be  paid  his  pro  rata  share  of  all  net  profits  not  included  in  the 
aforesaid  permanent  fund,  and  a  scrip  dividend  for  his  contribution  to  said  fund. 
(April  10,  1900,  94  v.  121;  April  14,  1888,  85  v.  273,  274;  R.  S.  1880;  70  v.  147, 
§    14;  S.   &  S.   209.) 

within  the  meaning  of  §  2730.     Ins.  Co.  v.  Cap- 


Unearned  premium  not  a  debt. 

The   sum    set   aside   as  unearned  premiums. 
as   provided   by    this   section,,  is   not   a    debt 


pelar,  38  Oh.  St.  560,  568   (1883).  See  §   3634. 


Insurance  Companies  Other  Than   Life. 


421 


Real  Estate  —  Municipal  Companies,   SS  3649,  3650. 


§  3649.     WHAT  REAL  ESTATE  COMPANY  MAY  HOLD.  —  \ 
ized  under  this  chapter  shall  purchase,   hold,  or  convey   real   estate,   <  the 

purposes  and  in  the  manner  herein  set  forth,  to  wit: 

1.  Such  as  is  requisite  for  its  convenient  accommodation  in  the  tranaar  • 
business;  or, 

2.  Such  as  is  mortgaged  to  it  in  good  faith,   by  way  of  security    for  loans  pre- 
viously contracted,  or  for  money  due;  or, 

3.  Such  as  is  conveyed  to  it  in  satisfaction  of  debts  previously  co:  n   its 
legitimate  business,  or  for  money  due;  or, 

4.    Such  as  is  purchased  at  sales  upon  judgment,  decree,  or  mortgages  obtained 
or  made  for  such  debts. 

No  such  company  shall  purchase,  hold,  or  convey  real  estate  in  any  other  case,  or 
for  any  other  purpose;  and  all  such  real  estate  as  may  be  acquired  as  aforesaid,  and 
which  is  not  necessary  for  the  accommodation  of  the  company  in  the  transaction  of  its 
business,  shall  be  sold  and  disposed  of  within  two  years  after  t.tle  thereto  is  acquired, 
unless  the  company  procure  a  certificate  from  the  superintendent  of  Insurance 
its  interests  will  suffer  materially  by  a  forced  sale  thereof,  when  the  sale  may  hi 
postponed  for  such  period  as  the  superintendent  shall  direct  in  such  certificate. 
(April  27,   1872,  69  v.  140,  §  15;  S.  &  S.  209.) 


§  3650.  LIABILITY  OF  MEMBERS  OF  MUTUAL  COMPANIES  TO  ASSESS- 
MENT; ASSESSMENTS,  HOW  MADE;  FOR  WHAT  PURPOSES  A  DEBT  MAY  BE 
CREATED. —  Every  person  who  effects  insurance  in  a  mutual  company,  and  con- 
tinues to  be  insured,  and  his  heirs,  executors,  administrators,  and  assigns  shall 
thereby  become  members  of  the  company  during  the  period  of  insurance,  shall  1  e 
bound  to  pay  for  losses  and  such  necessary  expenses  as  accrue  in  and  to  the  company 
in  proportion  to  the  original  amount  of  his  deposit  note  or  contingent  liability;  and 
the  directors  shall,  as  often  as  they  deem  necessary,  settle  and  determine  the  sum  to 
be  paid  by  the  several  members  thereof,  and  publish  the  same  in  such  manner  as  they 
may  choose,  or  as  the  by-laws  prescribe,  and  the  sum  to  be  paid  by  each  member  shall 
always  be  in  proportion  to  the  original  amount  of  such  liability,  and  shall  le  paid 
to  the  officers  of  the  company  within  thirty  days  next  after  the  publication  cf  such 
notice;  provided,  that  whenever  such  company  is  not  possessed  of  cash  funds  above 
its  reinsurance  reserve  sufficient  for  the  payment  of  incurred  losses  and  expenses,  it 
shall  be  deemed  to  have  impaired  its  capital,  and  when  such  impairment  shall  exceed 
twenty-five  per  cent,  of  the  reinsurance  reserve  required  to  be  maintained,  it  shall 
make  an  assessment  for  the  amount  needed  to  pay  such  losses  and  expenses  upon  its 
members  liable  to  assessment  therefor  in  proportion  to  their  several  liabilities  and 
to  make  good  the  reinsurance  reserve;  and  no  such  company  shall  borrow  money  or 
create  a  debt  unless  for  the  purpose  of  necessary  office  buildings,  to  continue  beyond 
the  period  when  such  assessment  may  be  collected  and  applied  to  the  payment  thereof, 
and  no  member  shall  be  assessed  for  liabilities  incurred  prior  to  his  membership. 
(Passed  April  14,  1888;  took  effect  July  1,  1888;  85  v.  273.  275;  April  15.  1882.  79 
v.   133;  R.  S.  188*0;  April  27,  1872,  69  v.  140,  §   16.) 


No  application  to  mutual  protective  as- 
sociations. 

Has  no  application  to  mutual  associations 
organized  under  §§  3686  to  3690.  -Richards, 
Recr.,  v.  Swain  et  al..  7  N.  P.  68  (1899); 
s.  c.  9  Dec.  70. 

No    authority    to    cancel    note;    liability 
thereunder. 

There  is  no  statute  authorizing  the  direct- 
ors of  a  mutual  company  to  cancel  the  policy 


and    premium    i 

ground    that    the   risk    i~   und< 

policy  docs  not  h  right.      B 

it  has  been  done  in  good  faith, 

has  accepted  the  returned  premium  - 

relieved  from  liabilit ; 

note  by  the  receiver  of  the  insi: 

t.   653;    W  is,    13 


422 


Private  Corporations  in  Ohio. 


Mutual  Companies,  Assessments  of,    §  3651. 


Liability  under  canceled  note;  juris- 
diction. 

A  policy  holder,  whose  policy  and  premium 
note  has  been  canceled,  is  not  excused  from 
liability  incurred  during  the  life  of  the  pol- 
icy; yet  his  relation  to  the  company  is  not 
such  that  he  is  represented  by  the  receiver  of 
the  company,  and  the  court  did  not  thereby 
acquire  jurisdiction  of  his  person  in  a  pro- 
ceeding to  wind  up  the  affairs  of  the  company. 
—  Wilhelm  v.  Parker,  Recr.,  17  C.  C.  234 
(1898)  ;  9  C.  D.  724. 

Loss  and  payment  of  same  by  company 
does  not  extinguish  assured's  con- 
tingent liability. 

Trustees  v.  Houston,  35  W.  L.  B.  182 
(189G);  Ins.  Co.  v.  Society  et  al.,  117  Mass. 
199  (1875);  Machine  Co.  v.  Partridge,  25  N. 
H.  369   (1852). 

Extent  of  liability. 

No  member  is  liable  to  pay  assessments  to 
pay  losses  occurring  before  he  became  a  mem- 
ber, or  which  may  have  occurred  after  ceasing 
to  be  a  member.—  State  ex  rel.  v.  Fire  Ass'n, 

42  Oh.  St.  555  (18S5). 

Failure  to  pay  assessments,  works  for- 
feiture. 

Where  a  holder  of  a  policy  leaves  the  pay- 
ment of  assessments  to  his  bookkeeper,  who 
proves  a  defaulter  and  fails  to  pay  them,  such 
act  is  not  an  unavoidable  accident  or  mistake, 
for  which  a  court  will  grant  relief  against 
forfeiture.— Graveson  v.  Cincinnati  Life 
Assn.  8  C.  C.  172  (1894);  s.  c,  6  C.  D.  327. 
See  Ins.  Co.  v.  Troy,  20  C.  C.  644  (1900); 
s.   c,    10  C.  D.   761. 

"Waiver  of  forfeiture. 

The  fact  that  the  torfeiture  of  the  policy 
was  not  declared  sooner  by  the  association 
than  it  was  as  it  had  a  right  to  do.  does  not 
amount  to  a  waiver  of  its  right  to  forfeit  the 
policy.— Graveson  v.  Cin.  Life  Assfn,  8  C.  C. 
172  (1894)  ;  s.  c.  6  C.  D.  327:  Phoenix  Ins.  Co. 
v.  Hoffler,  2  C.  C.  131  (1890);  s.  c,  1  C.  D. 
403;  reversed,  23  W.  L.  B.  108. 

Member's    default    will    not    terminate 
liability. 

American  Ins.  Co.  v.  Sorter,  1  Clev.  Rep. 
133  (is?*):  Susquehanna  Ins.  Co.  v.  Leavy. 
136  Pa.  St.  409  (1890);  Huntley  v.  Perry,  38 
Barb.  569   (1860). 

Insolvency   or    termination   of    company 
no  defense. 

Corey  v.  Sherman.  32  L.  R.  A.  (la.)  490 
(1894);  Comm.  v.  Ins.  Co..  112  Mass.  116 
(1873). 


Directors  may   compromise   liability   on 
assessments. 

Wadsworth  et  al.  v.  Davis,   13  Oh.   St.   123 

(1862).  j! 

Assessments    can    only   be    made    by   au- 
thorized officers. 

Assessments  can  only  be  made  by  officers 
thereto  authorized,  and  the  failure  to  pay  any 
assessment  otherwise  made  is  not  ground  of 
forfeiture.— Bates  v.  Benef.  Ass'n,  51  Mich. 
587  (1883);  Ins.  Co.  v.  Chase,  56  N.  H.  341 
(1876). 

Assessments  must  be  borne  equally. 

Assessments  must  be  borne  by  the  members 
with  substantial  equality.  It  seems  that  only 
those  who  are  insolvent  can  be  excused  from 
paying.  If  others  refuse  to  pay.  the  company 
must  enforce  payment  by  suit. —  Planters'  Ins. 
Co.  v.  Comfort, '50  Miss.  662    (1874). 

Directors  may  exercise    discretion   as  to 
amount. 

Directors  may  exercise  reasonable  discretion 
in  fixing  amount  of  assessment.  But  if  they 
make  assessments  in  anticipation  of  future 
losses  they  are  invalid. —  Rosenberger  v.  Ins. 
Co.,  87  Pa.  St.  (1S7S);  Ins:  Co.  v.  Circuit 
Judges,   100  Mich.  606    (1894). 


What  is  uneaual  assessment. 

David   v.   Parcher  et   al.,   82   Wis.   488, 

(1892). 


492 


Statiite    of    limitations    runs   from    date 
of  levy. 

Statute  of  limitations  as  to  assessments  or 
deposit  note  does  not  run  until  levy  made  by 
the   directors. —  Lycoming   Ins.   Co.    v.   Batch- 1 
eller,   62   Vt.    148    (1890);    Smith  v.   Bell,   107, 
Pa.    St.    352    (1884);    Wardle   v.    Hudson,   96. 
Mich.  432  (1893). 

But  runs  immediately  if  deposit  note  is 
intended  to  make  up  required  capital. 

Howland  v.  Edmonds,  24  N.  Y.  307   (1862). 

Misrepresentations    of   agent   as   to   lia- 
bility on  policy. 

It  is  no  defense  to  an  action  to  enforce  the 
contingent  liability  of  the  assured  that  the 
policy  was  represented  as  a  stock  policy,  that 
there  would  be  no  assessments  and  no  further 
liability.— Mansfield   v.   Ice   Co..  28  W.  L.  B. 

113  (1892)  ;   Mansfield  v.  Randall,  28  W.  L.  B. 

114  (1S92);    Amer;can    Ins.    Co.   v.    Sorter.    1 
(lev.  Rep.   133  (1878). 

See  S§  3634.  3651.  3652  and  36S6.  and  notes 
thereto. 


§  3651.  ENFORCEMENT  OF  ASSESSMENTS;  PARTIAL  PAYMENT  OF  LOSS. 
—  If  a  member  neglect  or  refuse,  for  the  space  of  thirty  days  after  the  publication  of 
such  notice,  and  after  demand  for  payment,  to  pay  the  sum  assessed  upon  him  in  (as 
his)  proportion  of  any  loss  as  aforesaid,  the  directors  may  sue  for  and  recover  the 
whole   amount   of  contingent  liability,   with  cost  of   suit;   but   execution  shaU   only 


[NSURANCE    COMPANIl       <  >  i  li  l.n     I  I!  \  ■     I  -II  l.. 


423 


Mutual   Companies,   Assessments  —  Policies  —  Reports,    S 


issue  for   assessments   and  costs   as  they   accrue,   and   every  such   execution   shall   be 

accompanied  by  a  list  of  losses  for  which  the  assessment  is  made;  and   n   the   whole 

amount  of  such  liability  be  insufficient  to  pay  the  loss  occasioned  by  any  flre  or  fires, 

the  sufferers  insured  by  the  company  shall  receive,  toward  mak 

tive  losses  a  proportional  share  of  the  whole  amount  of  such  liability 

the  sums  by  them  respectively  insured;  but  no  member  shall  ever  be  requlr<   1   to  pay 

for  any  loss  occasioned  by  fire,  or  inland  navigation,  more  than  the  v.l  nt  of 

such  liability.     (Passed  April   14,   1888;   took   effect  July   1,    1888;   85   v.   '.' 

R.  S.   1880;  April  27,  1872,  69  v.   140,   §   16.) 


Noncompliance      of      corporators      with 
charter,  no  defense. 

A  member  of  a  mutual  fire  insurance  com- 
pany, when  sued  upon  an  assessmenl  upon  lii^ 
deposit  note  to  pay  a  Ins-  occasioned  by  fire, 
cannot   set  up  as   a  defense  that   he   and  his 


a  ssociate  coi  poi  a  omply 

with     the    requirements    of    their 

Trumbull    Mutual    In-.  Co.   \.   Horner,   17  Oh. 
■in;     (1848).      See,    also,    Richards, 
Swaine   &    Mc<  ormi  <l..  7    N. 

i  L898)  :  -.  <-..  9  Dec.  70. 


§  3652.  HOW  ASSESSMENTS  AND  NOTICE  PROVED.  —  In  actions  for  the  re- 
covery of  assessments  duly  levied  by  the  directors  of  any  mutual  fire  insurance  com- 
pany of  this  state,  or  for  money  due  on  the  liability  of  the  members  of  any  such 
company,  the  official  statement  of  the  president  or  secretary  of  such  company,  under 
seal,  and  sworn  to,  shall  be  received  in  court  as  evidence  of  the  facts  essential  for 
making  the  same,  and  that  such  assessment,  for  the  non-payment  of  which  any  such 
action  is  commenced,  has  been  duly  levied,  and  notice  thereof  given.  (Passed  April. 
14,  1888;  took  effect  July  1,  1888;  85  v.  273,  276;  R.  S.  1880;  39  v.  35.  1: 
S.  &  C.  352.) 


■Waiver  of  prescribed  manner  of  Riving 
notice. 

If  no1  ice  i-  aci  ually  n  ceived  by  the  ins 
and  he  does  d  i1  objed  1"  the  manner  in  which 
he   received    it.   though    i1  >d   as 

the  by-laia  -  required,  he  w  ill  be  dei  med  I 
waived    the    informality. —  Hollister    v.     In-. 
Co..  lis  Mass.    17s   (li 


Parol  proof  not  admissible  to  show  as- 
sessment. 

Phcenix  Ins.  Co.  v.  Bowersox,  Recr.,  G  C.  C. 
1    (1892);    s.  c,  3  C.  D.  321. 

If   notice   properly   sent,    immaterial    as 
to  its  receipt. 

If  notice  of  an  assessment  is  given  in  {lie 
prescribed  manner,  it  is  immaterial  whether 
the  person  assessed  received  it  or  not. — 
Greeley  v.  Ins.  Co.,  50  la.  86   (1878). 

§  3653.  WHAT  KIND  OF  POLICIES  COMPANY  TO  ISSUE.  —  Every  mutual 
company  shall  embody  the  word  "  mutual  »  in  its  title  which  shall  appear  upon  the 
first  page  of  every  policy  and  renewal  receipt,  and  every  stock  company  shall  express, 
upon  the  face  of  every  policy  and  renewal  receipt,  in  some  suitable  manner,  that  snch 
policy  or  receipt  is  a  stock  policy  or  receipt;  but  neither  class  of  companies  doing  busi- 
ness in  this  state,  shall  issue  any  policy  other  than  that  appropriate  to  its  class,  except 
that  any  mutual  company  now  doing  business  in  this  state,  having  net  assets  not  lc 
than  two  hundred  thousand  dollars  invested  as  provided  in  section  thirty-six  hun- 
dred and  thirty-seven,  may  issue  policies  either  upon  the  mutual  or  stock  plan,  and 
may  continue  to  do  such  kind  of  business  so  long  as  its  assets  continue  so  ^vested, 
and  may  expose  itself  to  loss  on  any  risk  or  hazard,  either  by  one  or  more  polices  tc 
an  amount  not  exceeding  five  per  cent,  thereof.     (April  27.  1872.  69  v.  140.  >   17.) 

Cited  Mansfield  v.  Ice  Co..  28  W.  L.  B.  113,115   (1892). 
(see  Ohio  Farmers'  Ins.  Co.  v.  Maloney,  33  W.  1-  B.  147   (IE 

§  3654  ANNUAL  REPORTS  OF  COMPANIES:  MUTUAL  INSURANCE  COM- 
PANIES. -  The  president  or  vice-president  and  secretary  of  such  (each)  insurance 
company  organized  under  any  law  of  this  or  any  other  state  and  doing  **>"£ 
this  stale,  shall,  annually,  on  the  first  day  of  January  or  ^^  ^J ^^e 
after,  prepare,  under  oath,  and  deposit  in  the  office  of  the  superintendent  of  insurance 


424  Private  Corporations  in  Ohio. 


Reports,   etc.,   §   3654. 


a  statement  of  the  condition  of  such  company  on  the  thirty-first  day  of  December  then 
next  preceding,  exhibiting  the  following  facts  and  items,  and  in  the  following  form, 
namely: 

First. —  The  amount  of  the  capital  stock  of  the  company,  specifying  the  amount 
paid  and  unpaid. 

Second. —  The  property  or  assets  held  by  the  company,  specifying: 

1.  The  value  of  the  real  estate  owned  by  such  company,  where  it  is  situated  and 
the  value  of  buildings  thereon. 

2.  The  amount  of  cash  on  hand  and  deposited  in  banks  to  the  credit  of  the  com- 
pany, specifying  in  what  banks  the  same  is  deposited. 

3.  The  amount  of  cash  in  the  hands  of  agents  and  in  course  of  transmission. 

4.  The  amount  of  loans  secured  by  bonds  and  mortgages,  which  are  first  lien  on 
real  estate,  and  on  which  there  is  less  than  one  year's  interest  due. 

5.  The  amount  of  loans  on  which  interest  has  not  been  paid  within  one  year. 

6.  The  amount  due  the  company  on  which  judgments  have  been  obtained  and  the 
cash  value  thereof. 

7.  The  amount  of  stocks  in  this  state,  the  United  States,  of  any  city  of  this  state, 
and  of  any  other  stocks  owned  by  the  company,  specifying  the  amount,  number  of 
shares,  and  the  par  and  market  value  of  each  kind  of  stock. 

8.  The  amount  of  stock  held  as  collateral  security  for  loans,  with  the  amount 
loaned  on,  and  the  par  and  market  value  of  each  kind  of  stock. 

9.  The  amount  of  unpaid  assessments  on  stock,  premium  notes  or  contingent 
liabilities. 

10.  The  amount  of  interest  due  and  unpaid  and  the  amount  of  interest  accrued 
but  not  due. 

11.  The  amount  of  premium  notes  or  contingent  liabilities  on  which  policies  are 

issued. 

12.  The  number  of  policies  in  force. 

13.  The  amount  insured  under  all  policies  in  force. 

14.  The  amount  of  premiums  received  thereon. 

15.  The  amount  and  description  of  all  other  assets. 

Third.  —  The  liabilities  of  the  company,  specifying: 

1.  The   amount   of  losses  due  and  unpaid. 

2.  The  amount  of  claims  for  losses  resisted  by  the  company. 

3.  The  amount  of  losses  incurred  during  the  year,  including  those  claimed  and 
not  due,  and  those  reported  to  the  company  upon  which  no  action  has  been  taken. 

4.  The    amount  of   dividends  declared  and  due  and  remaining  unpaid. 

5.  The   amount  of  dividends,  either  cash  or  scrip,  declared  but  not  due. 

6.  The  amount  of  money  borrowed  and  the  security  given  for  the  payment  thereof. 

7.  The  amount  required  for  reinsurance,  being  in  stock  companies,  a  sum  equal 
to  fifty  per  cent,  of  the  whole  amount  of  premiums  on  unexpired  risks  and  policies; 
and  in  mutual  companies  a  sum  equal  to  fifty  per  cent,  of  the  cash  premiums  received 
on  unexpired  risks  and  policies. 

8.  The  amount  of  all  other  existing  claims  against  the  company. 

Fourth. —  The  income  of  the  company  during  the  preceding  year,  specifying: 

1.  The   amount   of  cash  premiums  received. 

2.  The   amount  of  notes  or  contingent  assets  received  for  premiums. 

3.  The    amount  of   interest   money   received. 

4.  The  amount  of  income  received  from  other  sources. 


[nsurance  Companies  Other  Than   Life.  425 

Reports,   etc.,   S   3655. 


Fifth.  —  The  expenditure  during  the  preceding  year,  specify. 

1.  The  amount  of  losses  paid  during  the  year,  st:  ich  of  the 
crued   prior  and  how   much  subsequent  to   the  date  of  the  preceding  il 
the  amount  at  which  losses  were  estimated  in  each  preceding  stat*-: 

2.  The  amount   of   dividends  paid  during  the  year. 

3.  The  amount  of  expenses  paid  during  the  year,  including  commissions  am 
to  agents  and  officers  of   the   company. 

4.  The   amount  paid   for  taxes. 

5.  The  amount   of  all  payments  and  expenditures. 

6.  Amount  of  scrip  dividend  declared. 

Every  mutual  fire  insurance  company  created  by  or  organized  under  any  general 
or  special  law  or  act,  and  doing  business  in  Ohio  under  any  law  of  this  state,  upon  or 
without  the  premium  note  plan,  which  shall,  by  its  policy,  by-laws  or  published 
statements  of  its  financial  affairs,  claim  the  benefit  of  the  guarantee  fund,  or  the  con- 
tingent liability  of  its  policy-holders,  as  provided  for  in  section  3634  of  the  Revised 
Statutes,  as  now  in  force,  shall  be  held  as  having  organized  under  the  laws  of  this 
state  as  now  in  force,  and  be  governed  by  all  the  provisions  thereof  as  applicable  to 
such  companies;  and  every  such  mutual  fire  insurance  company  that  shall  neglect  or 
refuse  to  make  and  forward  to  the  superintendent  of  insurance  such  annual  report 
of  its  affairs  as  is  required  by  law,  or  shall  refuse  to  allow  or  permit  the  superin- 
tendent of  insurance  free  access  to  its  books  and  papers,  and  investigate  the  financial 
standing  of  such  company,  the  charter  of  every  such  company  organized  under  the 
laws  of  this  state  as  aforesaid,  and  so  neglecting  and  refusing,  shall  thereby  become 
forfeited,  and  the  said  superintendent  of  insurance  shall  proceed  without  delay  to 
bring  the  affairs  of  such  company  to  a  close.  (May  9,  1894,  91  v.  211:  April  11. 
1893,  90  v.  159;  April  17,  1891,  88  v.  308;  April  14,  1888,  85  v.  273.  276;  R.  S. 
1880,  70  v.  147,  §  18;  S.  &  S.  211.) 


Special  charter  does  not  exempt. 

A  company  organized  under  a  special  char- 
ter, before  the  adoption  of  the  present  ci  n-ti- 
tution,  is  subject  to  such  reasonable  regula- 
tions as  the  legislature  may  prescribe,  which 
regulations  serve  to  secure  the  end-  for  which 
the  company  was  created,  and  not  being  re- 
pugnant    to'     the     franchises     and     privileges 


granted   in  the  charter,  such 
not  be  exempt  from  a  compliance 

ami  §  :;ii.").").  unless  such  exemption 

ha  \  e   1  eeD 

State  es   rel.  v.  Eagle  Ins 

l  1893)  ;    In-    «  o.   v.  Ohio,    153    U.  S 

(1894).     - 


§  3655.     SPECIAL    REPORT    REQUIRED    OF     CERTAIN    INSURANCE    COM- 
PANIES; PENALTY.  —  The  statement  of  any  such  company,  the  capital  of  which  is 
composed  in  whole  or  in  part  of  notes,  shall,  in  addition  to  the  foregoing,  exhibit  the 
amount  of  notes   which  originally  formed  the   capital,  and  also  what  proportion   of 
such  notes  is  still  held  by  the  company  and  considered  capital;  and  every  company 
organized  under  any  law  of  this  state  which  fails  to  make  and  deposit  such  state- 
ment, or  to  reply  to  any   inquiry  of  the  superintendent,  with  respect  to  such  state- 
ment, shall  be  subject  to  a  penalty  of  five  hundred  dollars,  and  an  additional  five 
hundred  dollars  for  every  month  that  it  continues  thereafter  to  transact  any  bu<- 
of  insurance,  to  be  recovered  by  action  in  the  name  of  the  state,  and.  on  collection, 
paid  into  the  state  treasury  for  the  benefit  of  the  state  common  school  fund;  and  the 
attorney-general,   on  the  request  of  the  superintendent   of  insurance,   shall  institute 
such  action  against  any  company  so  delinquent,  in  the  court  of  appropriate  juris 
tion  in  Franklin  county,  or  in  the  court  of  appropriate  jurisdiction  of  the  county 
which  said  company  is  located  or  has  its  principal  place  of  business,  as  he  pref 
(January  21.   1887,  84  v.   5;  May  11,  1886.  83  v.   416;  R.   S.   1880;  April   27.    1 
69  v.   140,   §  19;  S.  &  S.  212.) 

See  note_.  §  3654. 


426 


Private  Corporations  in  Ohio. 


Foreign  Companies,   License  of,   §  3656. 


§  3656.  FOREIGN  COMPANIES  MUST  OBTAIN  LICENSE  OF  SUPERINTEND- 
ENT.—  No  company,  association  or  partnership,  incorporated,  organized  or  associ- 
ated under  the  laws  of  any  other  state  of  the  United  States,  or  of  any  foreign 
government,  for  any  of  the  purposes  mentioned  in  this  chapter,  which  does  a  bank- 
ing or  any  other  kind  of  business  in  connection  with  insurance,  shall,  directly  or 
indirectly,  transact  any  business  of  insurance  in  this  state,  nor  shall  any  such  com- 
pany, association  or  partnership  do  any  such  business  in  this  state  until  it  procures 
from  the  superintendent  a  certificate  of  authority  so  to  do;  nor  shall  any  person  or 
corporation  act  as  agent  in  this  state  for  any  such  company,  association  or  partner- 
ship, directly  or  indirectly,  either  in  procuring  applications  for  insurance,  taking 
risks  or  in  any  manner  transacting  the  business  of  insurance,  until  it  procures  from 
the  superintendent  a  license  so  to  do,  stating  that  the  company,  association  or  part- 
nership has  complied  with  all  the  requirements  of  this  chapter  applicable  to  such  com- 
pany, and  depositing  a  certified  copy  of  such  license  in  the  office  of  the  recorder  of  the 
county  in  which  the  oflice  or  place  of  business  of  such  agent  or  agents  is  established; 
nor  shall  any  company,  association  or  partnership  organized  under  the  laws  of  any 
other  state,  take  risks  or  transact  business  of  insurance  in  this  state,  directly  or  indi- 
rectly, unless  possessed  of  the  amount  of  actual  capital  required  by  similar  companies 
formed  under  the  provisions  of  this  chapter,  nor  unless  the  capital  stock  of  the  com- 
pany is  paid  up  and  invested  as  required  by  the  laws  of  the  state  where  it  was  organ- 
ized, and  if  a  live  stock  insurance  company  has  deposited  in  such  state  or  in  this  state, 
for  the  benefit  of  its  policy-holders,  securities  approved  by  the  insurance  department 
of  such  state  in  an  amount  equal  to  one-fourth  of  its  entire  capital  stock;  but  if  the 
company  is  a  mutual  fire  insurance  company,  it  shall  have  actual  cash  assets  of  the 
same  amount  and  description  as  is  required  of  mutual  fire  insurance  companies  of  this 
state,  after  organization,  invested  as  required  by  the  law  of  the  state  where  such  com- 
pany was  organized,  and  such  companies  must  have  either  premium  notes  or  con- 
tingent liability  of  the  same  amount  as  is  required  of  similar  fire  insurance  companies 
of  this  state,  which  contingent  liability  may  be  either  in  writing  or  be  expressed  in 
the  policies  issued  by  such  company.  (May  9,  1894,  91  v.  139;  April  17,  1891,  88  v. 
340;  May  15,  1878,  75  v.  572,  §  20;  April  24,  1873,  70  v.   147,  §  1.) 


What  is  sufficient  capital. 

A  mutual  fire  insurance  company  organized 
under  the  laws  of  another  state,  but  similar 
to  domestic  companies,  which  has  at  least 
$50,000  in  premium  notes,  on  which  at  least 
$10,000  in  cash  has  been  paid  before  commenc- 
ing the  business  of  insuring,  may,  so  far  as 
capital  is  concerned,  be  admitted  to  do  busi- 
ness in  this  state. —  State  ex  rel.  v.  Moore, 
42  Oh.  St.   103    (1S84). 

Superintendent's  discretion  not  subject 
to  mandamus. 

in  considering  the  application  of  such  in- 
surance company  for  admission  to  do  business 
in  this  slate,  the  superintendent  may  inquire 
into  its  financial  soundness,  and  if  upon  such 
inquiry,  made  in  good  faith,  he  is  not  satis- 
fied, he  is  invested  with  discretion  to  refuse 
such  admission,  and  his  exercise  of  such  dis- 
cretion will  not  be  controlled  by  mandamus. 
—  State  ex  rel.  v.  Moore,  42  Oh.  St.  103 
(1884). 

Cannot    exercise    discretion    arbitrarily. 

Superintendent  has  no  power,  however,  in 
the   exercise   of   a    mere   arbitrary   discretion, 


to   refuse    such    admission. —  State    ex   rel.    v. 
Moore,  42  Oh.  St.  103   (1884). 

Incorporated  as  well  as  unincorporated 
associations  must  obtain  license. 

State  ex  rel.  v.  Aekerman  et  al..  51  Oh.  St. 
163  (1804). 

Lloyd's  policy  —  liability  several. 

Under  a  Lloyd's  policy,  under-written  by 
fourteen  parties,  acting  by  their  agent,  each 
for  a  stipulated  sum,  the  liability  of  the 
underwriters  is  several,  not  joint. —  Gilchrist 
v.  Transportation  Co.,  21   O.  C.  C.  19    (1900). 

Quo  warranto  proper  remedy  against 
company  doing  business  without  li- 
cense. 

State  ex  rel.   v.  Aekerman,  51   Oh.   St.   163 

(1894). 

Loan  on  note  and  mortgage  not  bank- 
ing business. 

Bank  v.  Ins.  Co.,  41  Oh.  St.  1  (1885);  Hall 
v.  Kummero  et  al..  7  N.  P.  394  (1898):  s.  c, 
5  Dec.   176.     See  §   3604  and  notes  thereto. 


[nsurance  Companies  Otheb  Than   Life.  427 


Foreign  Companies  —  Waivers,  Statements,    License,  '<>59. 


§  3657.  THE  WAIVER  COMPANIES  MUST  FILE.  —  Any  such  company  desir- 
ing to  transact  any  business  by  an  agent  in  this  state,  shall  file  with  the  HUp<-nn- 
tendent  a  written  instrument,  duly  signed  and  sealed,  authorising  any  the 

company  in  this  state  to  acknowledge  service  of  process  in  this  state  foi  half 

of  the  company,  consenting  that  service  of  process,  mesne  or  final,  upon  any  such 
agent,  shall  be  taken  and  held  to  be  as  valid,  as  if  served  upon  the  company  accord- 
ing to  the  laws  of  this  or  any  other  state  or  country,  waiving  all  claim  01 
error  by  reason  of  such  acknowledgment  of  service,  and  consenting  that  suit  may  be 
brought  against  it  in  the  county  where  the  property  insured  was  situate,  or  where  the 
same  was  insured,  and  that  service  of  process  made  therein  by  the  sheriff  of  such 
county,  by  sending  a  copy  thereof  by  mail,  addressed  to  the  company  at  the  place  of 
its  principal  office  located  in  the  state  where  it  was  organized,  or,  if  it  is  a  foreign 
company,  to  such  company  at  the  place  of  its  principal  office  in  the  United  States,  at 
least  thirty  days  prior  to  taking  judgment  in  such  suit,  shall  be  as  valid  as  if  per- 
sonally made  upon  the  company  according  to  the  laws  of  this  state,  or  any  other 
state  or  government,  and  that  if  suit  be  brought  against  it  after  it  ceases  to  do  busi- 
ness in  this  state  as  aforesaid,  and  there  be  no  agent  of  the  company  in  the  county  in 
which  suit  is  brought  upon  whom  service  of  process  can  be  had,  service  upon  it  may 
be  had  by  the  sheriff  sending  a  copy  thereof,  mailed  as  aforesaid,  and  within  the 
time  aforesaid;  but  the  sheriff's  return  shall  show  the  time  and  manner  of  such 
service.     (May  15,  1878,  75  v.  572,  §  20.) 

See  §  3607  and  notes. 

Service  by  mailing  as  above  provided,    sufficient. 

Mohr  v.  Ins.  Co.,  10  W.  L.  B.  82    (1S83).     See,  also,  Handy   v.  Ins.  Co.,   37   01 

(1881). 

§  3658.  MUST  ALSO  FILE  STATEMENT.  —  Every  such  company,  association. 
or  partnership  shall  also  file  with  the  superintendent  a  certified  copy  of  its  charter, 
or  deed  of  settlement,  together  with  a  statement,  under  the  oath  of  its  president  or 
vice-president,  or  other  chief  officer,  and  the  secretary  of  the  company,  stating  the 
name  of  the  company,  the  place  where  it  is  located,  and  the  amount  of  its  capital, 
with  a  detailed  statement  of  the  facts  and  items  required  from  the  companies  organ- 
ized under  the  laws  of  this  state  by  sections  thirty-six  hundred  and  fifty-three"  and 
thirty-six  hundred  and  fifty-four;*  and  they  shall  also  file  with  the  superintendent 
a  copy  of  their  last  annual  report,  if  any  was  made,  under  any  law  of  the  state  by 
which  it  was  incorporated.     (May  15,   1S78,  75  v.  572.  §  20;  R.  S.  1880.) 

*  Sections  3653.  3654  should  be  sections  3654.  I  tions  and  the  original  ad   in  75  v.  572 
3655,  as  will  be  seen  by  examining  these  sec-  | 

§  3659.  REVOCATION  OF  LICENSE  OF  FOREIGN  INSURANCE  COMPANY 
OTHER  THAN  LIFE.  —  If  any  such  company,  association  or  partnership  doing  busi- 
ness within  this  state  makes  an  application  for  a  change  of  venue,  or  to  remove  any 
suit  or  action  wherein  such  company  has  been  sued  by  a  citizen  of  this  state,  now 
pending,  or  hereafter  commenced  in  any  court  of  this  state,  to  the  United  States  dis- 
trict or  circuit  court,  or  to  any  federal  court,  or  shall  enter  into  any  compact  or  com- 
bination with  other  insurance  companies,  or  shall  require  their  agents  to  enter  into 
any  compact  or  combination  with  other  insurance  agents  or  companies,  for  the  pur- 
pose of  governing  or  controlling  the  rates  charged  for  fire  insurance  on  any  property 
within  this  state,  or  for  the  purpose  of  governing  or  controlling  the  rates  per  centum 
or  amount  of  commission  or  compensation  to  be  allowed  agents  for  procuring  contri 
for  fire  insurance  on  any  property  within  this  state  (provided  that  nothing  herein 
shall  prohibit  one  or  more  of  such  companies  from  employing  a  common 
agents   to   supervise   and   advise   of    defective    structures,    suggest    improvements    to 


428  Private  Corporations  in  Ohio. 


Foreign  Companies — Deposit,  Reports,  §§  3660,  3661. 


lessen  the  fire  hazard,  and  to  advise  as  to  the  relative  value  of  risks),  the  superin- 
tendent of  insurance  shall  forthwith  revoke  and  recall  the  license  or  authority  to  it 
to  do  or  transact  business  within  this  state,  and  no  renewal  of  authority  shall  be 
granted  to  it  for  three  years  after  such  revocation;  and  it  shall  thereafter  be  pro- 
hibited from  transacting  any  business  in  this  state  until  again  duly  licensed  and 
authorized.  (April  14,  1900,  94  v.  165;  May  1,  1891,  88  v.  485;  May  4,  1885,  82  v. 
231;  R.  S.  1880;  May  15,  1878,  75  v.  572,  §  20.) 

See  notes  to  §  3620. 

See  Runck  v.  Cloud,  8  N.  P.  436   (1901). 

§  3660.  CERTAIN"  COMPANIES  MUST  MAKE  DEPOSIT.— A  company  incor- 
porated by  or  organized  under  the  laws  of  a  foreign  government  shall  deposit  with 
the  superintendent  of  insurance,  for  the  benefit  and  security  of  the  policy-holders 
residing  in  this  state,  a  sum  not  less  than  one  hundred  thousand  dollars  in  stock  or 
bonds  of  the  United  States,  or  the  state  of  Ohio  or  any  municipality  or  county  thereof, 
which  shall  not  be  received  by  the  superintendent  at  a  rate  above  their  par  value; 
the  stocks  and  securities  so  deposited  may  be  exchanged  from  time  to  time  for  other 
like  securities;  so  long  as  the  company  so  depositing  continues  solvent  and  complies 
with  the  laws  of  this  state,  it  shall  be  permitted  by  the  superintendent  to  collect  the 
interest  or  dividends  on  such  deposits;  and  for  the  purpose  of  this  chapter  the  capital 
of  any  foreign  company  doing  fire  insurance  business  in  this  state  shall  be  deemed 
to  be  the  aggregate  value  of  its  deposits  with  the  insurance  or  other  departments  of 
this  state  and  of  the  other  states  of  the  United  States,  for  the  benefit  of  policy-holders 
in  this  state  or  in  the  United  States,  and  its  assets  and  investments  in  the  United 
States  certified  according  to  the  provisions  of  this  chapter;  but  such  assets  and 
investments  must  be  held  within  the  United  States,  and  invested  in  and  held  by  trus- 
tees, who  must  be  citizens  of  the  United  States,  appointed  by  the  board  of  directors  of 
the  company  and  approved  by  the  insurance  commissioner  of  the  state  where  invested, 
;for  the  benefit  of  the  policy-holders  and  creditors  in  the  United  States;  and  the 
trustees  so  chosen  may  take,  hold  and  convey  real  and  personal  property  for  the  pur- 
pose of  the  trust,  subject  to  the  same  restrictions  as  companies  of  this  state.  (Febru- 
ary 27,  1894,  94  v.  40;  April  24,  1873,  70  v.  147,  §  21;  S.  &  S.  212.) 

See  §   3593. 

§  3661.  ALL  FOREIGN  COMPANIES  MUST  MAKE  ANNUAL  STATEMENTS. 
—  Every  company,  other  than  a  life  company,  organized  by  act  of  congress,  or  under 
the  laws  of  any  other  state  or  government,  shall,  annually,  at  the  time,  and  in  the 
form  and  manner,  required  of  similar  companies  organized  under  the  laws  of  this 
state,  file  a  statement  of  its  condition  and  affairs  in  the  office  of  the  superintendent  of 
insurance;  any  company  organized  under  or  incorporated  by  any  foreign  government 
shall  also  furnish  a  supplementary  statement  for  the  year  ending  on  the  preceding 
thirty-first  day  of  December,  verified  by  the  oath  of  the  manager  of  such  company 
residing  in  the  United  States,  which  shall  comprise  a  report  of  its  business  and 
affairs  in  the  United  States,  as  required  from  companies  organized  in  this  state, 
together  with  any  other  information  that  may  be  required  by  the  superintendent  of 
insurance,  and  if  such  annual  statement  be  satisfactory  evidence  to  the  superintend- 
ent of  insurance  of  the  solvency  and  ability  of  such  company  to  meet  all  its  engage- 
ments at  maturity,  and  that  the  deposit  is  maintained  ao  hereinbefore  provided,  he 
shall  issue  renewal  certificates  of  authority  to  the  agents  of  the  company,  certified 
copies  of  which  shall  be  filed  in  the  recorder's  office  of  each  county  wherein  an  agency 
is  located,  during  the  month  of  January  in  each  year,  or  within  sixty  days  thereafter, 
which  certificates  shall  be  the  authority  of  such  agents  to  issue  new  policies  in  this 
state  for  the  ensuing  year.    (April  27,  1872,  69  v.  140,  §  22;  S.  &  S.  213.) 


Insurance  Companies  Otheb    Than  Life.  429 


Advertisements —  Dividends  — Cai..  .,  etc.,  H  3661a  3664. 

§  3661a.     FIRE  INSURANCE  COMPANY  TO  INCLUDE  IN  ADVERTISEMENT 
ONLY  ASSETS  ADMITTED  BY  SUPERINTENDENT  OF   INSURANCE  — 
insurance  company,  organized  under  the  laws  of  this  state,  or  admitted  I  ness 

in  this  state,  shall,   in   any  public   advertisement,  card,   or  circular,    Includi 
statement  of  assets,  any  item  of  value,   of  a  class  or  character  not   admitted   bj 
superintendent  of  insurance  of  this   state  in   the  annual   reports  of   laid    I  impai 
And   every  such  advertisement,  card,  or  circular,   containing   a  statement  of   assets, 
shall,  in  all  cases  contain  also  a  full  statement  of  all  the  liabilities  of  said  company, 
including  the  reinsurance  reserve,  which  in  no  case  shall  be  less  than  fifty  per  cent, 
on  the  gross  premiums  received  on  all  unpaid   (unexpired)   risks.     (April    12.   1880, 
77   v.    185.) 

§  3661b.  PENALTY. —  Any  violation  of  this  act,  after  the  second  notice  from  the 
superintendent  of  insurance  of  this  state,  shall  render  such  company  liable  to  a  fine 
of  one  thousand  dollars  ($1,000),  and  each  subsequent  violation  to  a  similar  fine,  to 
be  recovered  for  the  benefit  of  the  common  school  fund  of  the  county,  in  an  action  to 
be  instituted  by  the  prosecuting  attorney  in  the  name  of  the  state  of  Ohio,  against 
said  company.     (April  12,   1880,  77  v.   185,   186.) 

§  3662.  COMPANIES  MUST  APPLY  DIVIDENDS  TO  STOCK  NOTES.  —Every 
company  heretofore  organized  under  any  law  of  this  state,  for  any  of  the  purposes 
mentioned  in  this  chapter,  which  has  not  called  in  the  whole  amount  of  its  subscribed 
capital  stock,  whether  the  unpaid  balance  of  such  capital  is  secured  by  indorsed  notes 
or  otherwise,  shall  retain  from  each  and  every  dividend  declared  to  its  stockholders, 
their  heirs  or  assigns,  fifty  per  cent,  of  such  dividend,  and  apply  the  amount  so  with- 
held as  a  credit  upon  the  balance-remaining  unpaid  on  the  shares  of  such  stockholders, 
until  such  balance  shall  be  fully  paid;  and  the  dividends,  from  time  to  time  so  cred- 
ited, with  the  capital  previously  paid  in,  shall  be  invested  by  the  company  in  the 
manner  required  by  section  thirty-six  hundred  and  thirty-seven;  but  if  the  divi- 
dends so  credited  did  not,  by  the  first  of  January,  1878,  equal  such  balance  in  full, 
such  company  shall  hereafter  retain  the  whole  amount  of  any  and  every  dividend 
declared  to  its  stockholders,  their  heirs  or  assigns,  and  shall  credit  and  invest  the 
same  as  aforesaid,  until  the  whole  subscribed  capital,  not  less  in  any  case  than  one 
hundred  thousand  dollars,  shall  be  paid  up  and  invested,  and  any  company  which 
violates  any  of  the  provisions  of  this  section  shall  thereby  forfeit  its  charter.  (April 
24,  1873,  70  v.   147,  §  23.) 

§  3663.  LIEN  OF  MUTUAL  COMPANIES  FOR  PREMIUM  NOTES.  —  All  build- 
ings insured  by  any  mutual  company  shall  be  pledged  to  such  company,  together  with 
the  right  and  title  of  the  assured  in  the  lands  upon  which  they  are  situate,  to  the 
amount  of  the  premium  note  or  contingent  liability,  and  the  company  shall  have  a 
lien  thereon  to  the  amount  of  such  note  or  liability,  but  the  lien  of  the  company  shall 
not  take  effect  until  the  company  files  with  the  recorder  of  the  county  in  which  the 
property  insured  is  situate,  a  certificate,  stating  the  date,  number,  and  amount  of 
premium  note,  or  contingent  liability,  and  such  a  description  of  the  property  insured 
as  will  enable  any  person  readily  to  identify  the  same;  the  recorder  shall  record  and 
index  the  certificate  in  his  book  of  liens,  for  which  he  shall  receive  the  sum  of  fifty 
cents;  and  all  liens  heretofore  acquired  by  any  such  company  shall  continue  in  for 
under  this  chapter.  (Passed  April  14,  1888;  took  effect  July  1,  1888,  85  v.  273.  278; 
R.  S.   1880;  April  27,  1872,  69  v.   140,   §  24.) 

See    §    3G34. 

§  3664.  INSURED  MAY  REQUIRE  FIRE  POLICY  TO  BE  CANCELED.  —  Any 
fire  insurance  company  doing  business  under  the  laws  of  this  state  which  hereafter 
issues  policies  of  insurance  covering  any  property  located  in  this  state,  and  on  such 


430 


Private  Corporations  in  Ohio. 


Policies  —  Cancellation,   Rates,  etc.,   §§  3665-3668. 


policies  receives  from  the  persons  insured  either  cash  payments  of  premium,  or  notes 
subject  to  assessment  for  payment  of  losses,  or  notes  for  the  installments  of  premium, 
shall  be  required  to  insert  in  every  policy  so  issued  an  obligation  to  cancel  the  policy 
at  any  time,  upon  the  written  request  of  the  person  insured,  on  conditions  as  provided 
in  the  following  five  sections.     (April  4,   1878,  75  v.  88,  §   1.) 


Does  not  apply  to  cancellation  by  com- 
pany. 

Sections  3GG4  to  3667  apply  only  to  cases  in 
which  the  policy  is  canceled  at  the  request  of 
the  insured,  and  not  to  cancellation  by  the 
company  itself. —  Ins.  Co.  v.  Brecheisen,  50 
Oh.  St.  542  (1893). 

Duty    to    cancel    does    not    create    legal 
bona   fide  debts  under   §    2730. 

Debts  to  be  deducted  under  §  2730  arc 
actual  debts  and  the  obligation  to  refund 
under  this  section  is  contingent  until  the  in- 


sured    exercises  his    option. —  French    v.    Ger- 
man Mutual  Ins.  Co.,  12  Dec.  183  (1901). 

Cancellation   by   company   may   be   fixed 
by  contract. 

The  parties  to  a  policy  are  free  to  fix  the 
terms  and  conditions  upon  which  a  policy 
may  be  canceled  by  the  company;  but  when 
the  insurance  is  terminated  upon  the  request 
of  the  assured,  the  parties  must  comply  with 
5S  3664  to  3667. —  Ins.  Co.  v.  Brecheisen,  50 
Oh.   St.   542    (1S93). 

Cited  in  Ins.  Co.  v.  Cappelar,  38  Oh.  St.  S60, 
570    (1883). 


§  3665.  RATES  FOR  CANCELLATION  OE  CASH  POLICIES.  —  When  a  policy 
issued  on  the  cash  plan  is  canceled,  in  accordance  with  the  provisions  of  the  preceding 
section,  the  companies  so  issuing  may  retain  customary  short  rates,  as  now  estab- 
lished and  charged  by  companies  doing  a  cash  business,  for  the  time  the  policy  has 
been  in  force,  and  return  to  the  insured  the  unearned  premium  on  the  policy  for 
unexpired  time.     (April  4,    1878,  75  v.   88,    §   2.) 

See  §  36G4  and  notes.     Cited  Ins.  Co.  v.  Cappelar,  38  Oh.  St.  560,  571    (1883). 

§  3666.  RATES  EOR  POLICIES  OE  MUTUAL  COMPANIES.—  When  policies 
issued  on  the  mutual  plan  are  canceled,  as  provided  in  section  thirty-six  hundred  and 
sixty-four,  the  companies  so  issuing  must  surrender  to  the  insured  the  note  or  notes 
received  from  the  insured  for  premium  or  payment  of  losses;  such  policies  shall  first 
be  sent  to  the  secretary  or  agent  of  the  company,  and  within  sixty  days  after  the 
receipt  thereof  for  cancellation  the  premium  note  shall  be  returned;  but  the  assured 
must  first  pay  his  proportion  of  all  losses  which  have  actually  occurred  up  to  the  data 
when  the  policy  was  received  for  cancellation,  and  the  company  shall  not  be  liable 
for  any  loss  under  any  such  policy  after  it  is  returned  for  cancellation.  (April  4, 
1878,  75  v.  88,   §  3.) 

See  §  36G4  and  notes. 


§  3667.  RATES  WHEN  PREMIUM  IS  PAID  IN  INSTALLMENTS.  —  When 
policies  issued  on  the  installment  plan  are  canceled,  in  accordance  with  the  provisions 
of  section  thirty-six  hundred  and  sixty-four,  the  companies  so  issuing  may  collect 
and  receive  of  the  insured  customary  short  rates  for  the  time  the  policy  has  been  in 
force,  to  be  computed  on  the  full  term  of  insurance  mentioned  in  the  policies  as 
charged  by  such  companies,  and  on  receipt  of  such  short  rates  must  return  all  install- 
ment notes  then  unpaid,  and  refund  to  the  insured  any  premium  collected  in  excess 
of  such  short  rates.     (April  4,   1878,   75  v.   88,  §  4.) 

See  §  3664  and  notes. 

§  3668.  PREMIUM  NOTES  NOT  NEGOTIABLE.—  When  companies  doing  busi- 
ness under  the  laws  of  this  state  receive  notes  in  consideration  of  premiums  on  their 
policies,  they  shall  be  required  to  insert  on  the  face  of  each  note  the  following  words, 
to  wit:  "  It  is  hereby  understood  and  agreed  that  this  note  is  not  transferable." 
(April  4,    1878,   75  v.    88,    §    5.) 


Insurance  Companies  Other  Than   Life.  431 


Accident  Companies — Consolidations,  SS  3669-3671. 


§  3669.  SUPERINTENDENT  TO  ENFORCE  CERTAIN  PROVISIONS.  —  When 
it  comes  to  the  knowledge  of  the  superintendent  of  insurance,  or  any  officer  having 
charge  of  the  insurance  department  of  this  state,  that  any  provision  of  the  five 
preceding  sections  has  been  violated,  he  shall  at  once  proceed  to  make  a  thorough 
investigation,  and,  upon  receiving  sufficient  proof  of  such  violation  shall  revoke  the 
certificate  of  authority  of  the  company  guilty  of  such  violation.  (April  4,  1878, 
75   v.    88,    §    6.) 

§  3670.  ACCIDENT  INSURANCE  COMPANIES  AUTHORIZED;  DEPOSIT  OF 
SECURITIES  FOR  THE  PURPOSE  OF  DOING  BUSINESS  IN  ANOTHER  STATE.— 
Companies  may  be  organized  for  the  special  purpose  of  insuring  persons  against 
accidental  personal  injury  or  loss  of  life  sustained  while  traveling  by  railroad,  steam- 
boat or  other  mode  of  conveyance,  and  making  all  and  every  insurance  connected  with 
the  accidental  loss  of  life,  or  personal  injury  sustained  by  accident,  of  every  descrip- 
tion whatever,  and  against  expenses  and  loss  of  time  occasioned  by  sickness  or  other 
disability,  and  on  such  terms  and  conditions,  and  for  such  periods  of  time,  and  con- 
fined to  such  countries  and  localities,  and  to  such  persons,  as  shall  from  time  to  time 
be  provided  for  in  the  by-laws  of  the  company;  and  when  any  company  so  organized 
desires  to  do  business  in  any  other  state,  by  the  laws  of  which  to  qualify  it  therefor, 
it  is  required  to  make  a  deposit  of  securities  assigned  in  trust  for  the  benefit  of  its 
policy-holders  with  an  officer  of  this  state,  it  shall  be,  and  hereby  is  made  the  duty  of 
the  state  treasurer  to  receive  such  deposit,  and  issue  therefor  to  such  company  his 
receipt,  giving  a  pertinent  description  of  said  securities  and  a  certificate  of  the  market 
value  of  the  same,  and  he  shall  also  issue  a  like  certificate  to  the  superintendent  of 
insurance,  who  shall  place  the  3ame  on  file  in  his  office.  Such  company  shall  have  the 
right  to  exchange  said  securities  for  other  like  securities,  in  whole  or  in  part,  as  far 
as  its  business  may  require,  and  to  wholly  withdraw  the  same  should  it  discontinue 
business  in  such  other  state;  but  all  such  changes  or  withdrawals  of  securities  shall 
be  at  once  duly  certified  by  the  treasurer  to  the  superintendent  of  insurance.  (May 
1,  1885,  82  v.  210;  R.  S.   1880;  February  7,  1865,  62  v.  12,  §  1;  S.  &  S.  230.) 

§  3671.  HOW  COMPANIES  MAY  CONSOLIDATE.  —  When  any  joint  stock  fire 
and  marine  insurance  company  of  this  state,  heretofore  organized,  or  that  may  here- 
after be  organized,  determines  by  a  vote  of  the  holders  of  two-third?  of  its  stock  to 
consolidate  and  make  joint  stock  with  any  other  like  company  or  companies  engaged 
in  or  incorporated  for  like  business,  and  each  of  such  companies  agrees,  by  the  vote 
aforesaid,  to  such  consolidation,  such  companies  may,  by  a  vote  of  the  holders  of  a 
majority  of  the  stock  so  consolidated,  choose  and  determine  under  which  corporate 
organization  or  articles  of  association  of  the  consolidating  companies,  and  under 
what  name,  their  future  business  shall  be  conducted;  upon  filing  with  the  superin- 
tendent of  insurance  a  certificate  of  such  consolidation,  the  companies  shall  from 
thenceforth  become  and  be  consolidated  under  the  corporate  organization  or  articles 
of  association  and  corporate  name  thus  chosen;  and  thereupon  all  franchises,  rights, 
equities,  property,  and  estate,  of  whatever  name  or  nature,  belonging  to  or  vested  in 
either  of  the  consolidating  companies,  shall  immediately,  upon  and  by  the  act  of  such 
consolidation,  become  the  property  and  estate  of  and  be  vested  in  such  consolidated 
company,  and  the  corporate  existence  of  the  consolidating  companies  shall  cease,  and 
be  merged  in  the  consolidation  from  thenceforth;  and  such  consolidated  company 
shall  have  the  exclusive  right  and  power  to  demand,  sue  for,  collect,  convey,  and  dis- 
pose of  the  rights,  equities,  property,  and  estate  aforesaid,  or  any  part  thereof,  under 
its  own  name  chosen  as  aforesaid,  and  all  debts,  liabilities,  and  obligations  of  the 
consolidating  companies  shall  be  assumed  and  paid  by  the  consolidated  company. 
(January  31,  1873,  70  v.  19,  §   1.) 


432  Private  Corporations  in  Ohio. 


Consolidations  —  Mutual  Companies,   §§  3672-3684. 


§    3672.     DISTRIBUTION    OF   THE   STOCK   OF   CONSOLIDATED   COMPANY.— 

Upon  such,  consolidation  of  companies  the  just  and  true  value  of  each  outstanding 
share  of  the  capital  stock  of  each  of  the  consolidating  companies  shall,  by  their 
respective  directors,  be  ascertained  through  a  suitable  valuation  of  all  the  assets  and 
liabilities  thereof  at  the  time  of  the  consolidation,  and  new  shares  of  the  consolidated 
company  shall  be  apportioned  to  each  stockholder,  equal  to  the  sum  so  ascertained  to 
be  the  just  and  true  value  of  his  shares  in  each  or  either  of  the  consolidating  com- 
panies, and  the  shares  thus  apportioned  shall  be  substituted  for  his  original  shares, 
and  all  certificates  of  shares  in  the  consolidating  companies  shall  be  surrendered 
when  the  new  certificates  of  the  shares  so  apportioned  are  issued;  but  any  stock- 
holder in  either  of  the  companies  so  consolidating  who  refuses  to  agree  to  such  con- 
solidation shall  be  entitled  to  receive  for  the  stock  by  him  owned  the  just  market 
value  of  the  same  at  the  time  of  such  consolidation,  to  be  paid  to  him  previous  to 
such  consolidation.      (January  31,   1873,  70  v.  19,   §  2.) 

§  3673.  ELECTION  OF  DIRECTORS. —  Immediately  upon  the  consideration 
(consolidation)  of  such  companies  the  directors  of  the  several  companies  so  consolidat- 
ing shall  proceed  to  elect,  from  their  members,  the  directors  for  the  consolidated 
company,  who  shall  serve  until  their  successors  are  elected  and  qualified.  (January 
31,   1873,  70  v.    19,   §  3.) 

§  3674.  CAPITAL  STOCK  LIMITED.—  The  capital  stock  of  such  consolidated 
company  may  be  equal  to,  but  shall  not,  by  virtue  of  such  consolidation,  exceed,  the 
aggregato  authorized  capital  of  the  consolidating  companies.  (January  31,  1873, 
70  v.   19,  §  4.) 

§  3675.  CERTIFICATE  OF  CONSOLIDATION  MUST  BE  FILED  WITH  SECRE- 
TARY OF  STATE.—  Within  thirty  days  after  such  consolidation  a  certificate,  setting , 
forth  the  fact  of  the  consolidation,  and  the  name  and  organization  adopted  thereby, 
shall  be  filed  in  the  office  of  the  secretary  of  state.     (January  31,  1873,  70  v.  19,  §  5.) 

§  3683.  EXAMINATION  OF  MUTUAL  FIRE  COMPANIES.—  The  court  of 
common  pleas  in  each  county  in  which  the  office  of  any  mutual  fire  insurance  com- 
pany is  situate  shall,  on  the  application  of  any  three  or  more  persons  interested, 
appoint  one  or  more  suitable  persons,  resident  in  such  county,  to  make  a  thorough 
and  careful  examination  into  the  affairs  and  conditions  of  such  company;  the  persons 
so  appointed  shall  have  power  to  require  the  production  of  all  books  and  papers 
belonging  to  such  company,  or  pertaining  to  its  business,  and  to  examine  under  oath 
all  the  officers,  servants,  or  agents  of  the  company,  or  any  other  person,  touching  its 
affairs  and  condition,  which  oath  may  be  administered  by  any  person  appointed  to 
make  the  examination,  and  they  shall  report  thereon  to  the  court,  at  its  next  regu- 
lar term,  in  which  they  shall  set  forth  in  full  the  condition  of  the  company,  and 
transmit  a  copy  of  such  report  to  the  superintendent  of  insurance  forthwith;  and 
such  examiners  shall  each  receive  two  dollars  per  day  for  the  time  actually  employed 
in  making  the  examination  and  report,  to  be  paid  out  of  the  treasury  of  the  company 
examined;  but  such  examination  shall  not  be  had  oftener  than  once  in  six  months.  I 
(March  10,  1859,  56  v.  37,  §   1;  S.  &  C.  353.) 

§  3684.  PERSONS  REFUSING  TO  APPEAR  AND  TESTIFY  ARE  IN  CON- 
TEMPT.—  If  any  such  officer,  servant,  agent,  or  other  person,  fail  or  refuse  to  appear 
before  such  examiners,  or  refuse  to  testify,  or  to  produce  before  them  any  book  or 
papers  in  his  possession,  and  required  to  be  produced,  such  failure  or  refusal  shall  be 
deemed  a  contempt,  and  shall  forthwith  be  reported  to  such  court,  which  shall  punish 
the  person  in  contempt  in  the  same  manner  and  to  the  same  extent  as  though  such 
contempt  had  been  committed  against  the  court.  (March  10,  1859,  56  v.  37,  §  2; 
S.  &  C.  353.) 


Insuranxe  Comi'aml>  u-iiii-.u  'I  man   Life. 


433 


Bonds,  Approval  —  Mutual  Protective  Associations,  $$  3685,  3686. 


§  3685.  CERTAIN  BONDS  MAY  BE  APPROVED  BY  PROBATE  JUDGE  — 
Any  insurance  company  which,  by  the  terms  of  its  charter,  is  required  to  have  its 
official  bonds  approved  by  a  judge  of  the  court  of  common  pleas,  may,  at  its  option. 
have  the  same  approved  by  the  probate  judge  of  the  county  in  which  the  office  of  the 
company  is  located.      (February  2,   1857,  54  v.    17,   §   1 ;  S.  &  C.   363.) 


§  3686.  MUTUAL  PROTECTION  ASSOCIATIONS  AUTHORIZED.—  Any  num- 
ber of  persons  of  lawful  age,  residents  of  this  state,  or  residents  of  an  adjoining  state 
and  owning  insurable  property  in  this  state,  not  less  than  ten  in  number,  may  asso- 
ciate themselves  together  for  the  purpose  of  insuring  each  other  against  loss  by  fire 
and  lightning,  cyclones,  tornadoes  or  windstorms  on  property  in  this  state;  and 
may  make,  assess  and  collect  upon  and  from  each  other  such  sums  of  money,  from 
time  to  time,  as  may  be  necessary  to  pay  losses  which  occur  by  fire  and  lightning, 
cyclones,  tornadoes  or  windstorms  to  any  members  of  such  association,  and  the  assess- 
ment and  collection  of  such  sums  of  money  shall  be  regulated  by  the  constitution 
and  by-laws  of  the  association.  An  association  formed  for  the  purpose  of  insuring 
against  loss  by  fire  and  lightning,  cyclones,  tornadoes  or  windstorms  may  insure 
farm  buildings,  detached  dwellings,  school  houses,  churches,  township  buildings, 
grange  buildings,  farm  implements,  farm  products,  household  goods  and  furniture 
in  such  buildings,  and  other  property  not  classed  as  extra  hazardous.  (April  25, 
1898,  93  v.  335;  April  15,  1889,  86  v.  377,  380;  February  27,  1885,  82  v.  71; 
April  14,  1884,  81  v.   185;  R.  S.  1880;  March  30,  1877,  74  v.  66,  §  1.) 


New  scheme  of  insurance. 

This  section  contemplates  a  new  system  of 
fire  insurance  before  unknown  in  this  state. 
Richards  v.  Swaine  &  McCorooick  et  al„  7  N. 
P.  68  (1900)  ;  s.  c,  9  Dec.  70:  State  ex  rel.  v. 
Fire  Ass'n,  42  Oh.  St.  555,  563   (1885). 

Authority  of  such  associations. 

Such  associations  are  empowered  to  make 
and  enforce  their  members'  contracts  of  in- 
demnity, by  which  the  members  agree  to  be 
assessed  specifically  for  such  amounts  as  may 
be  necessary  to  pay  losses  occurring  to  the 
members,  and  also  to  pay  incidental  expenses. 
—  State  ex  rel.  v.  Fire  Ass'n,  42  Oh.  St.  555 
(1885).  • 

Liability  of  members. 

Members  are  liable  to  assessments  only  for 
losses  occurring  during  their  membership, 
and  are  not  liable  for  losses  occurring  before 
or  after  such  membership. —  State  ex  rel.  v. 
Fire  Ass'n,  42  Oh.  St.  555   (1885). 

Cannot  contract  for  specific  sum  in  lieu 
of  assessment. 

A  contract  cannot  be  made  with  members 
by  which  they,  upon  an  advance  payment  of 
an  agreed  annual  amount,  shall  be  exempt 
from  assessments  during  the  ensuing  year,  nor 
can  a  member's  liability  to  assessment  be  lim- 
ited, without  regard  to  the  amount  that  may 
be  necessary  to  pay  losses. —  State  ex  rel.  v. 
Fire  Ass'n,  42  Oh.  St.  555   (1885). 

What  is  not  an  assessment. 

Such  advance  payment,  based  upon  the  haz- 
ards   of    the    risk,"  without    reference    to    the 
amount  necessary  to  pay  losses,  is  in  fact  a 
LAW   GOV.    PRIV.    COR. —  28. 


premium,  and  not  a  Bpecific  assessment  au- 
thorized by  this  statute.  State  es  rel.  v. 
Fire  Ass'n,  42  Oh.  St.  555   (1885). 

Does  not  authorize  profits  to  be  made. 
This  section  does  not  authorize  a  corpora- 
tion for  profit  either  to  its  officers  or  mei 
and  any  scheme  by  which  profits  are  made  is 
unauthorized. —  Slate  ex  rel.  v.  Fire  Ass'n,  12 
Oh.  St.  555   (1885). 

Assessments  are   trust  funds;  misappli- 
cation. 

Funds  derived  from  assessments  to  pay 
losses  are  in  their  nature  trust  funds  to  he 
applied  to  such  losses:  hence  the  application 
of  such  assessments  or  advance  payments,  in 
lieu  of  assessments,  to  the  purchase  of  the 
assel  of  a  like  corporation,  including  real 
estate  not  necessary  to  it-  business  or  to  the 
payment  of  losses  to  members  of  such  other 
corporation,  is  a  misapplication  of  such  funds. 
—  State  ex  rel.  v.  Fire  Ass'n,  42  Oh.  St.  555 

|  Is-:,,. 

Nonresidents  not  eligible. 

Nonresidents  of  this  state  cannot  become 
members  of  such  association,  and  persons  who 
are  not  members  cannol  heroine  directors.— 
state  ex  rel.  v.  Mutual  Fire  Ass'n,  50  Oh.  St. 
145    (1S93). 

Note  amendment  to  this  section    ("or 

of  an  adjoining  state  owning  insurable 
property  in  this  si  ate."    93  v. 

Cannot  do  business  on  stock  or  mutual 
plan. 

Such  association  is  not  authorized  to  do 
business    on    the    "  joint    stock  "    nor   on    the 


434 


Private  Corporations  in  Ohio. 


Mutual  Protective  Associations,  §§  3687-3690. 


'"  contingent  liability  "  plan,  as  defined  in 
§  363-1.  but  must  confine  itself  to  insuring  its 
members,  who  agree  to  be  assessed  specifically 
to  pay  losses  and  incidental  expenses. —  State 
ex  rel.  v.  Fire  Ass'n,  42  Oh.  St.  555  (1885)  ; 
Richards,  Rec'r,  v.  Swaim  et  al.,  7  N.  P.  68 
(1900);  s.  c,  9  Dec.  70:  State  ex  rel.  v. 
Mutual  Fire  Ass'n,  50  Oh.  St.  145   (1893). 


Trustees   not   liable   for   loss. 

The  loss  is  not  a  debt  for  which  the  trustees 
are  personally  liable,  even  though  the  certifi- 
cate be  in  part  ultra  vires,  if  issued  in  good 
faith. —  Manufacturers'  Fire  Ass'n  v.  Drug 
Mills,  8  C.  C.  112   (1894)  ;  s.  c,  4  C.  D.  350. 

See  §§  3034,  3050  and  3690,  and  notes.  See 
State  ex  rel.  v.  Live  Stock  Co.,  38  Oh.  St.  347 
(1882). 


§  3687.  CERTIFICATE  OF  ORGANIZATION.—  Such  persons  shall  make  and 
subscribe  a  certificate  setting  forth  therein: 

First.     The  name  by  which  the  association  shall  be  known. 

Second.     The  place  which  shall  be  regarded  as  its  center  or  business  office. 

Third.  The  object  of  the  association,  which  shall  only  be  to  enable  its  members 
to  insure  each  other  against  loss  by  fire  and  lightning,  cyclones,  tornadoes,  or  wind- 
storms, and  other  casualties,  and  to  enforce  any  contract  which  may  be  by  them 
entered  into,  by  which  those  entering  therein  shall  agree  to  be  assessed  specifically 
for  incidental  purposes  and  for  the  payment  of  losses  which  occur  to  its  members. 
(April  15,  1889,  86  v.  377,  380;  February  27,  1885,  82  v.  71,  72;  April  14,  1884, 
81  v.   185;  R.  S.   1880;  March  30,   1877,  74  v.  66,  §  2.) 

See  notes  to  §  3686. 


§  3688.  WHEN  CERTIFICATE  TO  BE  FILED.—  The  certificate  shall  be  filed  in 
the  office  of  the  secretary  of  state,  and  a  copy  thereof,  duly  certified  by  the  secretary 
of  state,  shall  be  evidence  of  the  existence  and  due  incorporation  of  the  association  for 
the  purposes  therein  named.      (March  30,   1877,  74  v.  66,   §  3.) 

§  3689.  ELECTION  OF  OFFICERS;  POWERS.—  When  such  certificate  is  so  filed, 
and  a  copy  thereof  so  certified  forwarded  to  the  association, the  persons  named  therein 
shall  elect  their  directors,  and  a  president,  secretary,  and  treasurer,  and  such  other 
officers  as  may  be  necessary  for  the  complete  performance  of  all  the  business  and 
objects  of  the  association  herein  provided,  to  serve  for  one  year;  and  such  officers 
shall  thereafter  be  chosen  in  such  manner,  and  at  such  time  as  shall  be  fixed  upon 
in  the  constitution;  but  directors  shall  not  be  chosen  for  a  longer  period  than  three 
years;  and  such  association  so  organized  shall  be  known  and  held  to  be  a  body  cor- 
porate for  all  the  purposes  aforesaid,  and  may  sue  and  be  sued,  and  plead  ^nd  be 
impleaded,  in  all  courts  of  law  and  equity,  but  in  no  instance  shall  the  power  to 
insure  against  losses  by  fire  or  tornadoes  be  exercised  to  other  than  members  of  the 
association.  (April  30,  1886,  83  v.  106,  107;  R.  S.  1880;  March  30,  1877,  74  v. 
66,   §   4.) 

Persons    not    members    cannot    become    directors. 

State  ex  rel.  v.  Mutual  Fire  Ass'n,  50  Oh.  St.   145    (1893).     See  note  to   same  case  under 
§   3086. 

§  3690.  CERTAIN  INSURANCE  COMPANIES  MUST  ADOPT  CONSTITUTION 
AND  BY-LAWS;  OFFICIAL  STATEMENT  TO  BE  MADE  TO  SUPERINTENDENT 
OF  INSURANCE. —  Every  such  association  shall  adopt  such  constitution  and  by-laws 
not  inconsistent  with  the  constitution  and  laws  of  this  state  or  the  United  States  as 
will,  in  the  judgment  of  its  members,  best  subserve  the  interests  and  purposes  of  the 
association;  and  all  persons  who  sign  such  constitution  shall  be  considered  and  held 
to  be  members  of  the  association,  and  shall  be  held  in  law  to  comply  with  all  the  pro- 
visions and  requirements  of  the  association;  and  the  president  or  vice-president  and 
secretary  of  every  such  association  shall  annually  on  the  first  day  of  January,  or 
within  thirty  days  thereafter,  prepare  under  oath  and  deposit  in  the  office  of  the 
superintendent  of  insurance  a  statement  of  the  condition  of  such  association  on  the 


Insurance  Companies  Other  Than   Life. 


435 


Mutual  Fire  Insurance  Associations,  §  3690-1. 


thirty-first  day  of  December  then  next  preceding,  exhibiting  such  facts  as  are  enu- 
merated in  section  thirty-six  hundred  and  fifty-four  (3654),  and  applicable  to  such 
associations,  and  such  other  information  necessary  to  reveal  the  financial  condition 
of  such  associations  as  the  superintendent  may  require,  in  a  printed  form  to  be  by  him 
•'supplied  to  such  association  for  that  purpose,  and  every  such  association  which  fails 
to  make  and  deposit  such  statement  or  to  reply  to  any  inquiry  of  the  suparinten 
shall  be  subject  to  a  penalty  of  five  hundred  dollars,  and  an  additional  five  hundred 
dollars  for  every  month  that  it  continues  thereafter  to  transact  any  business  of  insur- 
ance.    (April  19,  1883,  80  v.  197;  It.  S.  1880;  March  30,  1877,  74  v.  66,  g   5.) 


Stipulated    sum    in    lieu    of    assessment 
unauthorized. 

This  section  does  not  authorize  a  regulation 
by  which  a  policy  may  be  declared  forfeited 
for  tlie  nonpayment  in  advance  of  an  annual 
deposit  or  premium,  whether  an  assessment 
to  pay  losses  during  such  period  should  hi' 
necessary  or  not.— State  v.  Monitor  Fire 
Ass'n,  42  Oh.  St.  555  (1885).  See  §  3G86  and 
notes   thereto. 

Member  must  sign  constitution. 

To  become  a  member  of  such  association, 
the  person  must  sign  his  name  to  the  constitu- 
tion.—  State  ex  rel.  v.  Mutual  Fire  Ass*n.  50 
Oh.  St.  145.  149  (1893);  Richards.  Rec'r,  v. 
Swaim  et  al.,  7  N.  P.  68  (1900);  s.  c,  9 
Dec.    70. 

Section  3650  has  no  application. 

Section  3650  has  no  application  to  persons 
obtaining  insurance  of  such  association,  and 
such  persons  can  become  legal  members  of  the 
association  only  by  signing  its  constitution. — 
Richards.  Rec'r,  v.  Swaim  et  al.,  7  N.  P.  68 
(1900);   s.  c,  9  Dec.  70. 

Members   presumed    to    know   rules    and 
regulations. 

See  Crandall  v.  Farmers,  etc.,  Ass'n,  8  N. 
P.  632  (1891). 


Waiver  of  regulations  by  agent. 


See    i  ran 
P.  t;:;:i  (1891). 


la II  v.   1'ai!  Ass'n,  8   N. 


Assessments. 
See  Crandall 
P.  632  (1891). 


v.   Farmers,  etc.,  Ass'n,  8  N. 


Liability    of    persons    not    signing    con- 
stitution. 

A  person  who  takes  out  a  policy  in  Buch 
association,  but  who  docs  not  sign  it-  consti- 
tution, i-  estopped  in  equity  from  denying  bis 
liability  to  pay  assessments,  mail.'  either  by 
the  directors  or  by  the  court  on  proceeainge  t" 
dissolve  the  association,  for  the  purpose  oJ 
paying  debts  or  losses  occurring  (lining  t lie 
continuance  of  such  policy. —  Richards,  I 
v.  Swaim  et  al..  7  X.  P.  68  (1901 
Dec.    70. 

Who  may  change  constitution. 

A  change  in  the  constitution  and  by-laws  of 

such  association  can  only  be  made  by  a  ma- 
jority of  tin'  member-  of  the  association 
and  not  by  the  directors  merely,  although  the 
constitution  provides  for  the  latter  method. — 
Farmers5  ln>.  Co.  v.  Bachman,  39  W.  L.  B.  324 
(1S98).     See  §  3634. 


§  3690-1.  MUTUAL  FIRE  INSURANCE  ASSOCIATIONS  AUTHORIZED  TO 
ORGANIZE  AS  COMPANIES. —  Any  mutual  fire  insurance  association  organized 
under  section  3686,  now  doing  business  and  now  having  the  number  of  policies  and 
amount  of  insurance  in  force  and  the  amount  of  assets  required  in  order  to  organize 
a  mutual  fire  insurance  company,  may  reorganize  as  such  mutual  fire  insurance  com- 
pany in  the  following  manner:  The  board  of  trustees  of  such  association  shall  give 
notice,  by  publication  in  a  newspaper  of  general  circulation,  and  published  in  the 
county  wherein  its  principal  office  is  situated,  at  least  three  consecutive  weeks  before 
such  application  be  made,  of  their  intention  to  so  organize;  and  shall  thereupon 
make  application  to  the  superintendent  of  insurance  respecting  their  desire  to  assume 
the  requirements  of  all  the  laws  governing  mutual  fire  insurance  companies  organized 
and  doing  business  under  the  laws  of  Ohio,  setting  forth  the  amount  of  insurance  car- 
ried, the  number  of  policies  in  force,  the  amount  of  its  assets  and  liabilities;  and  if 
said  superintendent  of  insurance  shall  be  satisfied,  by  an  examination,  or  otherwise, 
of  the  condition  of  such  association,  that  at  the  date  of  the  passage  of  this  act  it  pos- 
sessed the  required  amount  of  assets,  and  the  number  and  amount  of  policies  in  force 
required  to  organize  a  mutual  fire  insurance  company,  he  shall  so  certify,  upon  a  cer- 
tificate of  incorporation,  containing  the  requisite  statements  required  to  incorporate 
a  mutual  fire  insurance  company,  which  certificate,  after  having  been  duly  executed, 
shall  be  delivered  to  the  secretary  of  state,  who  shall  record  the  same,  and  issue  his 


436  Private  Corporations  in  Ohio. 

Mutual  Fire  Association  —  Salvage  Companies,  etc.,  §  3690-2-§   1. 

certificate  of  incorporation  as  in  other  cases  for  change  of  name,  capital  or  location 
of  an  incorporated  company,  charging  only  such  fees  therefor  as  authorized  by  law 
in  other  cases  for  change  in  capital  or  location  of  company.  (March  24,  1890,  87 
v.   88.) 

§  3690-2.  RIGHTS  OF  POLICY-HOLDERS:  HOW  AFFECTFD.— Thereafter 
the  business  of  such  fire  insurance  association  shall  be  conducted  as  and  be  subject 
to  all  laws  governing  mutual  fire  insurance  companies;  and  all  members  of  said  asso- 
ciation shall  be  members  of  said  mutual  fire  insurance  company,  to  the  time  of  the 
expiration  of  (or)  cancellation  of  their  policies,  and  entitled  to  all  the  benefits  as 
such,  precisely  as  if  original  members  of  such  company,  without  exchanging  policies 
or  contracts,  and  entitled  to  all  the  benefits  as  members  of  said  company  precisely  as 
if  original  members  of  said  company.      (March  24,    1890,  87  v.  88.) 

§  3690-3.  POLICIES;  BY-LAWS,  ETC.— After  such  change  in  the  plan  of  insur- 
ance by  such  association,  and  the  organization  of  such  mutual  fire  insurance  company, 
all  policies  thereafter  issued  shall  be  in  the  name  and  by  the  authority  of  such  mutual 
fire  insurance  company,  and  the  policies  theretofore  in  force,  and  the  by-laws,  rules 
and  regulations  of  such  association,  if  not  in  conflict  with  the  laws  governing  mutual 
fire  insurance  companies,  shall  be  and  remain  in  full  force  and  effect  until  the  same 
shall  have  terminated  or  been  lawfully  changed  by  said  company  or  its  board  of 
directors,   as  authorized  by  law.      (March  24,   1890,   87  v.   88.) 

§  3691.  CELLAR  AND  FOUNDATION  NOT  CONSIDERED  PART  OF  STRUC- 
TURE IN  SETTLING  LOSS. —  The  cellar  and  foundation  walls  shall  not  be  included 
or  considered  a  part  of  the  building  or  structure  in  settling  losses,  any  thing  in  the 
application   or   policy  to   the  contrary  notwithstanding. 

A  boiler  and  engine  may  be  j>,  structure. 

Ins.  Co.  v.  Luce,  11  C.  C.  476  (189b) ;  s.  c,  5  C.  D.  210.     See  §  3643  and  notes  thereto. 

i 

An  Act  to  Provide  for  the  Organization  of  Corporations  for  the  Purpose  of 
Discovering  and  Preventing  Fires   and   of   Saving   Property   and   Life 
From   Conflagration. 
Be  it  enacted  by  the  General  Assembly  of  the  State  of  Ohio: 

§  1.  CORPORATIONS  MAY  BE  CREATED  FOR  THE  PURPOSE  OF  DIS- 
COVERING AND  PREVENTING  FIRES  AND  OF  SAVING  PROPERTY  AND  LIFE 
FROM  CONFLAGRATION. —  That  corporations,  not  for  profit,  may  be  organized 
under  the  general  corporation  laws  of  this  state,  and  in  accordance  with  the  pro- 
visions of  this  act,  for  the  purpose  of  discovering  and  preventing  fires  and  of  saving 
property  and  life  from  conflagration,  with  power  to  provide  a  patrol  of  men  and  a 
competent  person  to  act  as  superintendent  to  discover  and  prevent  fires,  with  suitable 
apparatus  and  equipment  to  save  and  preserve  property  and  life  at  and  after  fires;  and 
to  enable  them  so  to  act  with  promptness  and  efficiency,  full  power  is  hereby  given  to 
such  superintendent  and  patrol  to  enter  any  building  at  any  time  for  the  purpose 
of  inspection  and  any  building  on  fire  or  which  may  be  exposed  to  or  in  danger  of 
taking  fire  from  other  burning  buildings,  for  the  purpose  of  protecting  and  saving 
said  building  and  the  property  therein,  or  of  removing  such  property  or  any  part 
thereof  during  the  fire  or  from  the  ruins  after  the  fire;  provided,  however,  that 
nothing  in  this  act  shall  be  so  construed  as  will  in  any  degree  lessen,  impair  or 
interfere  with  the  powers,  privileges,  duties  or  authority  of  any  regular  or  volunteer 
fire  department  organized  and  maintained  by  any  public  authority  within  the  state, 
but  the  said  superintendent  and  the  members  of  said  patrol,  while  on  duty  at  a  fire, 
shall  in  all  respects  be  subordinate  to  and  under  the  control  of  the  public  authority 
having  charge  of  the  extinguishment  and  prevention  of  fires;  and  provided  further 


Insurance  Companies  Otheb  Than  Life.  437 

Salvage  Companies,  etc.,   Hi2  4. 

that  no  act  of   the  superintendent  or  the  patrol  of  men  shall  justify  any  owner  of 
any  building  or  property  in  abandoning  such  building  or  property.     (April  29,    I 
95   v.   324.) 

§  2.  POWERS  OF  SUCH  CORPORATIONS.—  In  the  articles  of  incorporation  of 
any  such  corporation  shall  be  set  forth  the  municipality  or  other  subdivision  of  the 
state  within  which  such  corporation  shall  prosecute  its  business,  as  provided  h< 
and  thereafter  such  corporation  shall  be  confined  to  the  municipality  or  other  sub- 
division, as  set  forth  in  said  articles;  and  for  the  purpose  of  carrying  into  effect 
the  powers  herein  granted,  any  such  corporation  shall  have  authority  to  provide 
suitable  rooms  for  the  transaction  of  its  business  and  to  that  end  is  hereby  authorized 
to  purchase,  lease  or  otherwise  acquire  and  hold  such  real  estate  and  personal  prop- 
erty as' may  be  necessary  to  fulfill  the  purposes  of  its  organization.  All  such  cor- 
porations shall  have  power  to  elect  such  officers  and  make  such  needful  by-laws  ps 
may  not  be  contrary  to  the  provisions  of  this  act  or  the  constitution  or  laws  of  this 
state  or  of  the  United  States;  and  except  as  herein  provided,  shall  be  subject  to  the 
general  corporation  laws  of  this  state.     (April  29,   1902,  95  v.   324.) 

§  3.  BIENNIAL  MEETING  OF  CORPORATION  AND  REPRESENTATIVES  OF 
FIRE  INSURANCE  COMPANIES.—  Before  any  corporation  organized  under  the 
terms  of  this  act  shall  commence  business,  and  in  the  month  of  March  of  every 
second  year  thereafter,  there  shall  be  held  a  meeting  of  such  corporation,  of  which 
ten  (10)  days'  previous  notice  shall  be  given  by  inserting  the  same  in  at  least  two 
newspapers  published  or  of  general  circulation  in  the  municipality  or  other  sub- 
division of  the  state  in  which  the  said  corporation  is  organized  and  established,  if 
there  be  such  newspapers,  and  if  not,  by  posting  notices  thereof,  at  which  meeting 
each  insurance  company,  corporation,  association,  underwriter,  person  or  persons 
doing  a  fire  insurance  business  in  said  municipality  or  other  subdivision  of  the  state 
in  which  the  corporation  is  organized  and  established,  whether  members  of  said  cor- 
poration or  not,  shall  have  the  right  to  be  represented  and  shall  be  entitled  to  one 
vote.  A  majority  of  the  whole  number  so  represented  shall  have  power  to  decide 
upon  the  question  of  sustaining  the  fire  patrol  organized  by  the  corporation  under 
the  terms  of  this  act  and  shall  fix  the  maximum  amount  of  expenses  which  shall  be 
incurred  therefor  during  the  fiscal  years  next  to  ensue  and  until  the  next  meeting, 
as  herein  provided,  which  amount  shall  in  no  case  exceed  two  (2-,)  per  centum  of 
the  aggregate  premiums  returned  as  received,  as  hereinafter  provided  in  this  act, 
ana  the  whole  of  such  amount,  or  so  much  thereof  as  may  be  necessary,  may  be 
assessed  upon  all  insurance  companies,  corporations,  underwriters,  agents,  person  or 
persons  who  assume  risks  and  accept  premiums  for  fir9  insurance  in  said  municipality 
or  other  subdivision,  as  hereinbefore  mentioned,  whether  members  of  said  corporation 
or  not,  in  proportion  to  the  several  amounts  of  premiums  returned  as  received  by  each, 
as  hereinbefore  provided,  and  such  assessments  shall  be  collectible  by  and  in  the 
name  of  tha  said  corporation  in  any  court  of  law  in  this  state  having  jurisdiction 
thereof  in  such  manner  and  at  such  time  or  times  as  the  said  corporation  may  deter- 
mine.    (April  29,  1902,  95  v.  325.) 

§  4.  QUARTERLY  STATEMENT  SHOWING  AGGREGATE  AMOUNT  OF 
PREMIUMS  RECEIVED  TO  BE  FILED  BY  INSURANCE  COMPANIES  WITH 
CORPORATION.  —  To  insure  the  collection  of  the  assessments  hereinbefore  provided 
and  in  order  to  provide  for  the  payment  of  the  persons  employed  by  said  corporation 
and  to  maintain  suitable  rooms  therefor  and  for  the  purchase,  lease  or  acquisition  of 
such  real  and  personal  property  as  may  be  necessary,  the  same  to  be  determined  at 
the  meetings  hereinbefore  provided,  the  said  corporation  is  empowered  to  require  a 
statement  to  be  furnished  quarterly  by  all  insurance  companies,  corporations,  associa- 


438 


Private  Corporations  in  Ohio. 


Salvage  Companies  —  Mutual  Live  Stock  Insurance  Association,   §§   5-3691-1. 

tions,  underwriters,  agents,  person  or  persons  of  the  aggregate  amount  of  premiums 
received  by  each  for  insuring  property  in  the  municipality  or  other  subdivision  of 
the  state  where  the  said  corporation  is  organized  and  established  for  and  during  the 
three  (3)  months  next  preceding  the  31st  day  of  March,  the  30th  day  of  June,  the 
30th  day  of  September  and  the  31st  day  of  December  of  each  year,  which  statement 
shall  be  sworn  to  by  the  president  and  secretary  of  the  corporation  or  association,  or 
by  the  agent  or  person  so  acting  or  effecting  such  insurance  in  said  municipality  or 
other  subdivision,  and  shall  be  given  to  the  secretary  of  the  corporation  created  under 
the  provisions  of  this  act,  within  ten  (10)  days  after  the  first  days  of  April,  July, 
October  and  January  of  each  year.    (April  29,  1902,  95  v.  325.) 

§  5.  WRITTEN  DEMAND  TO  BE  MADE  UPON  FIRE  INSURANCE  COM- 
PANIES FOR  THE  STATEMENT  ABOVE  PROVIDED  FOR.—  The  treasurer  or  other 
appointed  officer  of  any  corporation  organized  under  this  act  shall  within  the  ten  (10) 
days  aforesaid,  by  written  or  printed  demand,  signed  by  him,  require  from  every 
such  insurance  company,  corporation,  organization,  underwriter,  agent  or  person 
engaged  in  the  business  of  fire  insurance  in  the  municipality  or  other  subdivision 
of  the  state  where  Laid  corporation  is  organized  and  established,  the  statement  here- 
inbefore provided  for.  Such  demand  may  be  delivered  personally  at  the  office  of  such 
insurance  company,  corporation,  association,  underwriter,  agent  or  person  within 
such  municipality  or  other  subdivision,  as  hereinbefore  provided,  or  at  the  residence 
of  any  officer  of  such  corporation  or  association,  underwriter,  agent  or  person.  Any 
insurance  company,  corporation  or  association,  or  any  officer  thereof,  and  any  under- 
writer, agent  or  person  within  the  municipality  or  other  subdivision  in  which  the 
said  corporation  is  organized  and  established,  engaged  in  the  business  of  fire  insur- 
ance, or  of  assuming  risks  and  accepting  premiums  for  fire  insurance,  who  fails  to 
comply  with  the  provisions  of  this  act  by  furnishing  the  statement  herein  provided 
for,  shall  forfeit  for  the  use  of  the  corporation  herein  provided  the  sum  of  twenty-five 
($25.00)  dollars  for  every  day  he  shall  so  neglect  to  furnish  the  same,  which  amount 
shall  be  recovered  by  the  corporation  in  any  court  in  the  state  having  jurisdiction 
thereof.     (April  29,    1902,   95  v.   326.) 


§   6.     This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 
29,  1902,  95  v.  326.) 


(April 


Constitutionality. 

Attorney-General  J.  M.  Sheets,  in  an  opin- 
ion rendered  to  superintendent  of  insurance, 
September  6,  1902,  declai-ed  this  law  unconsti- 


tutional as  violating  §§1  and  2  of  article  1 
of  the  Ohio  constitution  and  the  fourteenth 
amendment  of  the  United  States  constitution. 


§  3691-1.  Sec.  1.  MUTUAL  PROTECTIVE  ASSOCIATION.— Be  it  enacted  by 
the  General  Assembly  of  the  State  of  Ohio,  That  any  number  of  persons  of  lawful  age, 
residents  of  this  state,  not  less  than  five,  may  associate  themselves  together  for  the 
purpose  of  becoming  a  body  corporate,  and  may  insure  themselves,  and  any  person 
becoming  a  member  of  such  incorporation,  in  accordance  with  the  rules  and  regula- 
tions of  such  corporation,  against  loss,  from  death,  of  domestic  animals,  and  may 
assess  and  collect,  upon  and  from  each  other,  such  sums  of  money,  from  time  to  time, 
as  may  be  necessary  to  pay  losses  which  occur,  from  death  of  domestic  animals,  to  any 
member  of  such  incorporation;  and  incidental  expenses,  and  the  assessments  and 
collections  of  such  sums  of  money  shall  be  regulated  by  the  constitution  and  by-laws 
of  the  corporation.     (April  15,  1889,  86  v.  377.) 


Remedy  upon  failure  to  pay  certificate. 

In  case  of  failure  to  pay  certificate,  the 
holder  need  not  seek  specific  performance  to 
levy  assessments,  but  may  sue  at  law  for  the 


sum  stipulated  in  certificate. —  Hall  v.  Live 
Stock  Ass'n,  25  W.  L.  B.  79  (1891).  And  see 
notes  under  §  3630. 


Insurance  Companies  Other  Than   Life.  439 


Mutual  Live  Stock  Insurance  Association,  §§  3691-ki  3691    5 


§  3691-2.  Sec.  2.  CERTIFICATE  OF  ORGANIZATION.—  Such  persons  shall 
make  and  subscribe  a  certificate,  setting  forth  therein  — 

1st    The  name  by  which  the  corporation   shall  be   known. 

2nd     The  place  which  shall  be  chosen   as  its   principal  office. 

3rd  The  object  of  the  corporation,  which  shall  only  be  to  enable  its  members  to 
insure  each  other  against  loss  from  death  of  domestic  animals,  and  to  enforce  any 
contract  which  may  be  by  them  entered  into,  whereby  they  specifically  agree  to  be 
assessed  for  the  payment  of  losses  and  incidental  expenses. 

4th  Shall  acknowledge  the  signing  of  such  certificate  before  a  notary  public,  or 
other  officer  authorized  to  take  the  acknowledgments  of  deeds  and  mortgages.  (April 
15,   1889,  86  v.   377,  378.) 

§  3691-3.  Sec.  3.  CERTIFICATE  TO  BE  FILED  WITH  SECRETARY  OF 
STATE. —  The  certificate  shall  be  filed  in  the  office  of  the  secretary  of  state,  and  a 
copy  thereof,  duly  certified  by  the  secretary  of  state,  shall  be  evidence  of  the  existence 
and  due  incorporation  of  such  company  for  the  purposes  therein  named.  (April  15, 
1889,  86  V.   377,  378.) 

§  3691-4.  Sec.  4.  ELECTION  OF  OFFICERS.— When  such  certificate  is  so  filed, 
and  a  copy  thereof,  so  certified,  forwarded  to  the  company,  the  persons  named  therein 
shall  elect  their  directors,  and  a  president,  secretary  and  treasurer,  and  such  other 
officers  as  may  be  necessary  for  the  complete  performance  cf  all  the  business  and 
objects  of  the  company  herein  provided  for,  to  serve  for  one  year,  or  until  their  suc- 
cessors are  duly  elected  and  qualified.  Such  officers  shall  thereafter  be  elected 
annually,  by  the  members  of  the  association,  at  such  time  as  shall  be  fixed  upon  in 
the  constitution;  and  such  company  so  organized  shall  be  known  and  held  to  be  a 
body  corporate,  for  the  purpose  aforesaid,  and  may  sue  and  be  sued,  and  plead  and  be 
impleaded,  in  all  courts  of  law  and  equity;  but  in  no  instance  shall  the  power  to 
insure  against  loss  by  death  of  domestic  animals  be  exercised  to  others  than  the  mem- 
bers of  the  company;  and  no  such  company  shall  receive  applications  nor  issue  poli- 
cies to  persons  not  bona  fide  residents  of  Ohio.      (April  15,  1889,  86  v.  377,  378.) 

§   3691-5.     Sec.    5.     CONSTITUTION  AND  BY-LAWS;  ANNUAL   STATEMENT 
TO    COMMISSIONER    OF    INSURANCE.—  Every    such    company    shall    adopt    such 
constitution  and  by-laws,  not  inconsistent  with  the  constitution  and  laws  of  this  state 
and  the  United  States,  as  will,  in  the  judgment  vof  its  members,  best  subserve  the 
interest  and  purposes  of  the  company;  and  all  persons  who  obtain  insurance  in  such 
company  shall  thereby  become  members  thereof,   with  power  to  vote   at   all  regular 
meetings  of  such  members,  upon  all  subjects,  and  shall  be  held,  in  law,  to  comply  with 
all  the  provisions  and  requirements  of  the  company;  and  the  president,  or  vice-presi- 
dent, and  secretary  of  every  such  company,  shall  annually,  on  the  first  day  of  Janu- 
ary, or  within  thirty  days  thereafter,  prepare,  under  oath,   and  deposit  in  the  office 
of  superintendent  of  insurance,  a  statement  of  the  condition  of  such  company  on  the 
thirty-first  day  of  December  then  next  preceding,  exhibiting  such  facts  as  are  enu- 
merated in  section  thirty-six  hundred  and  fifty-four  of  the  Revised  Statutes  of  C 
and  applicable  to  such  companies,  and  such  other  information  as  is  necessary  to  reveal 
the  financial  condition   and  general  management  of  such  company,    as  the  sut 
tendent  of  insurance  may  require  in  printed  form,  to  be.  by  him.  supplied  to  s 
companies  for  that  purpose;  and  every  such  company  failing  to   make  and   deposit 
such  statement,  or  to  reply  to  any  inquiry  of  the  superintendent,  shall  be  subject 
a  penalty  of  five  hundred  dollars,  and  an  additional  five  hundred  dollars  for  every 
month  that  it  continues  thereafter  to  transact  any  business  of  insurance,  and  shall 


440  Private  Corporations  in  Ohio. 

Mutual  Live  Stock  Insurance  Association,   §§   3691-6-3691-10. 

forfeit  its  right  to  do  the  business  contemplated  by  this  act,  which  forfeiture  the 
superintendent  shall  enforce  by  proceedings  in  quo  warranto.  (April  15,  1889,  86  v. 
377,  378.) 

§   3691-6.     Sec.    6.     EXAMINATIONS  BY  COMMISSIONER  OF  INSURANCE.— 

The  superintendent  of  insurance  may,  whenever  he  may  deem  it  advisable,  cause  an 
examination  of  the  affairs  of  such  company  or  corporation  to  be  made  by  one  or  more 
disinterested  persons,  at  the  expense  of  the  company,  such  expense  not  to  exceed  five 
dollars  per  day  for  each  person  so  employed;  and  if,  upon  such  examination,  it  shall 
appear  that  such  company  or  corporation  is  exercising  powers  or  franchises  contrary 
to  law,  the  superintendent  of  insurance  shall  institute  proceedings  in  quo  warranto 
against  the  same,  and  if  it  be  found,  in  such  proceedings,  that  such  company  or  cor- 
poration has  exercised  powers  or  franchises  contrary  to  law,  a  forfeiture  of  its  right 
to  do  business  shall  be  declared.      (April  15,  1889,  86  v.  377,  379.) 

§  3691-7.  Sec.  7.  AMOUNT  OE  APPLICATIONS  FOR  INSURANCE  REQUIRED 
BEFORE  COMMENCING  BUSINESS. —  No  company  organized  under  this  act  shall 
issue  any  certificate  or  policy  of  insurance  until  bona  fide  applications  for  insurance 
to  the  amount  of  fifty  thousand  dollars  shall  have  been  filed  with  the  secretary  of 
such  company,  and  a  statement  of  such  fact  sworn  to  by  such  secretary  and  president 
of  such  company,  filed  with  and  approved  by  the  superintendent  of  insurance.  Nor 
shall  the  treasurer  of  such  company  receive  any  money,  as  such  treasurer,  until  he 
shall  have  filed  with  the  superintendent  of  insurance,  payable  to  the  state  of  Ohio, 
for  the  benefit  of  the  members  of  such  company,  his  bond,  in  the  sum  of  ten  thousand 
dollars,  with  security,  to  be  approved  by  the  superintendent.  Such  bond  shall  be 
conditional  for  the  faithful  application  of  all  money  coming  into  his  hands  as  such 
treasurer.     (April   15,    1889,  86  v.  377,  379.) 

§   3691-8.     Sec.   8.     WHEN   COMPANY  MAY  COMMENCE  BUSINESS.— When 

the  statement  of  the  secretary  and  the  president,  and  the  bond  of  the  treasurer,  pro- 
vided for  by  the  preceding  section,  shall  have  been  filed  and  approved  by  the  super- 
intendent of  insurance,  the  superintendent  shall  issue,  to  such  company,  his  certifi- 
cate, certifying  such  fact,  and  such  certificate  shall  constitute  the  authority  of  such 
company  to  commence  business.     (April  15,  1889,  86  v.  377,  379.) 

§  3691-9.  Sec.  9.  WHEN  CHARTER  MAY  BE  FORFEITED— Should  the 
amount  at  risk  in  such  company,  at  any  time,  become  reduced  below  fifty  thousand 
dollars,  such  company  shall  issue  no  more  certificates  or  policies  of  insurance  until 
bona  fide  applications,  sufficient  to  restore  such  insurance  to  said  amount,  shall  have 
been  secured,  and  a  sworn  statement  of  such  fact  shall  have  been  filed  with  and 
approved  by  the  superintendent  of  insurance,  and  by  him  certified  to  the  company; 
and  should  such  company  fail  to  so  restore  such  amount,  for  the  period  of  six  months, 
then  such  company  shall  forfeit  its  right  to  do  (the)  business  contemplated  by  this 
act;  and  when  the  liabilities  of  such  company  shall  exceed  three  per  cent,  of  the 
amount  of  risk  in  force,  as  determined  by  the  last  preceding  assessment,  such  com- 
pany shall  be  deemed  to  be  insolvent,  and  to  have  forfeited  its  charter;  and  such  for- 
feiture shall  be  enforced  by  the  superintendent  of  insurance  by  proceedings  in  quo 
warranto.     (April  15,   1889,  86  v.  377,  380.) 

§  3691-10.  Sec.  10.  BOND  OF  SECRETARY  AND  TREASURER.  —The  treas- 
urer and  secretary  of  such  companies  shall  give  bond  for  the  faithful  performance 
of  their  duties,  to  the  directors  or  trustees  of  the  company,  in  such  sum  and  with 
such  security  as  shall  be  prescribed  in  the  by-laws  of  the  company,  the  security  to  be 
approved  by  such  directors  or  trustees.     (April  15,   1889,  86  v.  377,  380.) 


Insurance  Companies  Other  Than  Life.  441 


Re-insurance  —  Credit  Guaranty  Companies,  etc.,  SS  3691-11   3G01-18. 


§  3691-11.  Sec.  11.  DIRECTORS.  —  The  directors  or  trustees  of  such  company 
shall,  before  qualified,  take  an  oath,  to  be  administered  by  any  officer  authorized  to 
take  acknowledgments  of  deeds,  to  faithfully  perform  the  duties  requirid  of  them, 
as  such  officers.     (April   15,   1889,  86  v.  377,  380) 

§  3691-12.  Sec.  12.  STATEMENT  OF  SECRETARY  AND  BOND  OF  TREAS- 
URER TO  BE  FILED  WITH  COMMISSIONER  CF  INSURANCE.  —  Any  company  or 
association,  organized  under  sections  three  thousand  six  hundred  and  eighty-six 
and  three  thousand  six  hundred  and  eighty-seven  of  the  Revised  Statutes  of  Ohio,  as 
amended  February  27,  1885,  for  the  purpose  of  insuring  its  members  against  loss 
from  death  of  domestic  animals,  and  still  doing  business,  shall,  within  ninety  days 
after  the  passage  of  this  act,  file  the  statement,  and  the  treasurer  shall  file  his  bond 
as  provided  in  section  seven  of  this  act,  and,  failing  so  to  do,  shall  forfeit  the  right 
to  do  the  business  contemplated  by  this  act.     (April  15,   1889,  86  v.  377-) 

§  3691-13.  Sec.  1.  COMPANIES  MAY  RE-INSURE  THEIR  RISKS.  —  Be  it 
enacted  by  the  General  Assembly  of  the  State  of  Ohio,  That  any  fire,  marine,  fidelity, 
accident,  plate  glass,  boiler,  or  other  insurance  company,  now  or  hereafter  organized 
or  existing,  under  or  by  virtue  of  the  laws  of  Ohio,  shall  have  authority  by  and  with 
the  consent  and  approval  of  the  commissioner  of  insurance,  to  re-insure  any  and  all 
risks  undertaken  by  it,  in  any  company  authorized  by  law  to  transact  a  similar  class 
of  insurance  business  in  this  state.     (April  14,  1884,  81  v.  179.) 

See  §§  3597  and  2745a. 

§  3691-14.  Sec.  2.  CREDIT  GUARANTY  COMPANIES;  ORGANIZATION.  — 
Any  number  of  persons,  not  less  than  five,  may  associate  and  form  a  company  to 
guarantee  and  indemnify  merchants,  manufacturers,  traders  and  those  engaged  in 
business,  and  giving  credit  from  loss  and  damage  by  reason  of  giving  and  extending 
credit  to  their  customers  and  those  dealing  with  them,  by  making,  acknowledging 
and  filing  articles  of  incorporation  pursuant  to,  and  by  complying  with  section  3588, 
3589  and  3590  of  the  Revised  Statutes  of  Ohio.  (May  2,  1902,  95  v.  345;  May  21. 
1894,   91   v.   415.) 

§  3691-15.  Sec.  3.  CAPITAL  STOCK.  —  No  such  company  shall  be  organized 
with  a  less  capital  than  one  hundred  thousand  dollars  ($100,000),  and  the  whole 
capital  shall,  before  proceeding  to  business,  be  paid  in  and  invested  in  treasury  notes, 
in  stocks  or  bonds  of  the  United  States,  in  stocks  or  bonds  of  the  state  of  Ohio,  or  of 
any  municipality  or  county  thereof  or  in  mortgages  on  unincumbered  real  estate 
within  the  state  of  Ohio,  worth  double  the  amount  loaned  thereon  at  the  time  such 
loan  is  made.     (May  2,  1902,  95  v.  345;  May  21,  1894,  91  v.  415.) 

§  3691-16.  Sec.  4.  INCREASE  OF  CAPITAL  STOCK.—  Any  such  company  may 
increase  its  capital  stock  as  provided  in  section  3592  of  the  Revised  Statutes  of  Ohio. 
(May  2,   1902,  95  v.  345;  May  21,  1894,  91  v.  415.) 

§  3691-17.  Sec.  5.  INVESTMENT  OF  CAPITAL;  DEPOSIT.  —  Any  such  com- 
pany may  invest  its  capital  stock  and  change  such  investment  as  provided  in  section 
3593  of  the  Revised  Statutes  of  Ohio;  but  no  such  company  shall  commence  business 
until  it  has  made  the  deposit  of  securities  provided  for  in  said  section,  which  shall  be 
held  and  controlled  by  the  superintendent  of  insurance  for  the  purpose  and  in  the 
manner  provided  in  said  section  3593  and  in  section  3594  of  the  Revised  Statutes  of 
Ohio.     (May  2,  1902,  95  v.  345;  May  21,  1894.  91  v.  415.) 

§  3691-18.  Sec.  6.  CERTIFICATE  OF  DEPOSIT;  RIGHT  TO  TRANSACT  BUSI- 
NESS. —  When  such  company  is  fully  organized  and  has  deposited  the  requisite 
amount  of  securities  as  hereinbefore  provided,  together  with  a  certified  copy  of  the 


442  Private  Corporatioxs  in  Ohio. 

Credit  Guaranty  Companies,   §§  3691-19,   3691-20. 

papers  required  by  this  act,  the  superintendent  of  insurance  shall,  unless  he  find  the 
name  assumed  by  such  company  so  nearly  similar  to  the  name  of  another  company 
organized  in  this  state  as  to  lead  to  uncertainty  or  confusion  on  the  part  of  the  public, 
furnish  such  company  with  a  certificate  of  such  deposit  and  of  authority  to  commence 
and  transact  business.     (May  2,  1902,  95  v.  345;  May  21,  1894,  91  v.  415.) 

§  3691-19.  Sec.  7.  POWERS  OF  COMPANIES.— No  such  company  shall  under- 
take any  business  or  risk  except  as  provided  in  clause  2  of  section  3641  and  3641b 
of  the  Revised  Statutes  of  Ohic,  and  as  herein  provided,  and  such  companies  shall 
have  the  right,  power  and  authority  to  agree  to  pay  to  merchants,  manufacturers, 
dealers  and  persons  engaged  in  business  and  giving  credit,  the  debt  or  debts,  or  such 
part  thereof  as  may  be  agreed  upon,  owing  to  them,  or  which  may  be  thereafter  owing 
to  them,  and  to  indemnify  them  from  loss  on  account  thereof  in  such  an  amount  or  per 
cent,  as  may  be  agreed  upon,  and  to  charge  and  receive  therefor  such  a  sum  or  per 
cent,  as  the  consideration  for  such  an  agreement,  guaranty  or  indemnity,  as  shall  be 
agreed  upon  between  such  corporation  and  the  person  guaranteed  or  indemnified, 
and  to  buy,  hold,  own  and  take  an  assignment  of  any  and  all  claims,  accounts  and 
demands  so  guaranteed,  and  to  hold,  own  and  collect  the  same,  and  to  enforce  the  col- 
lection thereof  by  action  the  same  as  the  original  holder  and  owner  thereof  might 
or  could  do;  and  such  corporation  may  also  guarantee  the  payment  of  money  for  per- 
sonal services  under  contract  of  hiring.  Any  such  corporation  may  use  its  capital 
stock  or  its  funds  accumulated  in  the  course  of  its  business  to  purchase  or  pay  for  any 
claim  or  demand,  the  payment  of  which  it  has  guaranteed;  or  against  the  loss  of 
which  it  has  indemnified  the  holder;  and  such  of  its  capital  stock  or  accumulated 
funds  as  may  not  be  so  used  shall  be  invested  in  the  same  classes  of  securities  in 
which  the  deposit  to  be  made  with  the  superintendent  of  insurance  is  required  by  the 
provisions  of  this  act  to  be  invested;  provided,  that  when,  on  account  of  losses  or 
otherwise,  the  amount  of  the  funds  of  any  such  corporation  shall  fall  below  such 
sum  as  is  required  to  be  deposited  by  this  act,  no  further  guaranty  of  indemnity  shall 
be  issued  until  the  deficiency  has  been  made  good.  (May  2,  1902,  95  v.  345;  May 
21,   1894,  91   v.  415.) 

§  3691-20.  Sec.  8.  ANNUAL  STATEMENTS.  —  The  president  or  vice-president 
of  each  company  organized  under  this  act,  or  under  the  laws  of  any  other  state,  or 
the  general  manager  for  the  United  States  of  any  company  organized  for  like  pur- 
poses under  the  laws  of  a  foreign  government,  and  doing  business  in  this  state,  shall, 
annually,  on  the  first  day  of  January,  or  within  thirty  days  thereafter,  prepare  under 
oath  and  deposit  in  the  office  of  the  superintendent  of  insurance  a  statement  of  the 
condition  of  such  company  on  the  thirty-first  day  of  December  then  next  preceding, 
exhibiting  the  following  facts  and  items,  and  in  the  following  form,  to  wit: 

Eirst.  The  amount  of  the  capital  stock  of  the  company,  specifying  the  amount 
paid  and  unpaid. 

Second.      The  property  or  assets  held  by  the  company,  specifying: 

1.  The  value  of  the  real  estate  owned  by  such  company,  where  it  is  situated,  and 
the  value  of  the  buildings  thereon. 

2.  The  amount  of  cash  on  hand  and  deposited  in  banks  to  the  credit  of  the  com- 
pany, specifying  in  what  banks  the  same  is  deposited. 

3.  The  amount  of  cash  in  the  hands  of  agents  and  in  course  of  transmission. 

4.  The  amount  of  loans  secured  by  bonds  and  mortgages  which  are  first  liens  on 
real  estate  and  on  which  there  is  less  than  one  year's  interest  due. 

5.  The  amount  of  loans  on  which  interest  has  not  been  paid  within  one  year. 

6.  The  amount  due  the  company  on  which  judgments  have  been  obtained,  and  the 
cash  value  thereof. 


Insurance  (  ompanies  Other  Than   Life.  443 


Credit  Guaranty  Companies,   S  3691-21. 


7.  The  amount  of  stocks  in  this  state,  the  United  States,  of  any  city  in  this  state, 
and  of  any  other  stocks  owned  by  the  company,  specifying  the  amount,  number  of 
shares,   and  the  par  and   market  value  of  each   kind   of  stocks. 

8.  The  amount  of  stock  held  as  collateral  security  for  loans,  with  the  amount 
loaned  on,  and  the  par  and  market  value  of  each  kind  of  stock. 

9.  The  amount  of  unpaid  assessments  on  stock,  premium  notes  or  contingent 
liabilities. 

10.  The  amount  of  interest  due  and  unpaid,  and  the  amount  of  interest  accrued 
but  not  due. 

11.  The  amount  of  premium  notes  or  contingent  liabilities  on  which  policies  or 
bonds  of  guaranty  or  indemnity  are  issued. 

12.  The  number   of   policies   or  bonds   of  guaranty   or  indemnity   in   force. 

13.  The   amount   of   premiums  received  thereon. 

14.  The   amount   and  description  of  all  other  assets. 

15.  The   amount   guaranteed  under  all  policies  in  force. 

Third.      The  liabilities  of  the  company,   specifying: 

1.  The   amount   of   losses  due  and  unpaid. 

2.  The   amount   of   claims  for  losses  resisted  by  the  company. 

3.  Gross  losses  in  process  of  adjustment  or  in  suspense,  including  all  reported 
and  supposed  losses. 

4.  The   amount   of   dividends   declared   and   due   and   remaining   unpaid. 

5.  The   amount   of   dividends,   either  cash  or  scrip,  declared,   but  not   due. 

6.  The   amount   of   money  borrowed,   and  the  security  for  the  payment  thereof. 

7.  The   amount   of   all   other  existing   claims   against  the  company. 

Fourth.      The  income  of  the  company  during  the  preceding  year,  specifying: 

1.  The  amount  of  cash  premiums  received. 

2.  The  amount  of  notes    or   contingent   assets   received   for   premiums. 

3.  The  amount  of  interest  money  received. 

4.  The  amount  of  income  received  from  other  sources. 

Fifth.     The  expenditure  during  the  preceding  year,  specifying: 

1.  The  amount  of  losses  paid  during  the  year,  stating  how  much  of  the  same 
accrued  prior  and  how  much  subsequent  to  the  date  of  the  preceding  statement,  and 
the  amount  at  which  losses  were  estimated  in  such  preceding  statement. 

2.  The   amount   of   dividends  paid  during  the  year. 

3.  The  amount  of  expenses  paid  during  the  year,  including  commissions  and 
fees  to  agents  and  officers  of  the  company. 

4.  The   amount  paid   for  taxes. 

5.  The   amount   of  all  payments  and  expenditures. 

6.  The  amount  of  scrip  dividend  declared.  (May  2,  1902.  95  v.  346;  May  21. 
1894,  91  v.  415.) 

§  3691-21.  Sec.  9.  REQUIREMENTS  OF  COMPANIES  OF  OTHER  STATES — 
Any  corporation,  company  or  association  organized  under  the  laws  of  any  other  state 
of  the  United  States  or  of  a  foreign  government  to  transact  a  like  business  as  that 
provided  for  in  this  act,  may  be  admitted  and  licensed  to  do  business  in  this  state; 
but  as  a  condition  precedent  to  being  admitted  to.  and  transacting  business  in  this 
state,  shall  comply  with  the  following  conditions,  to  wit:  Deposit  with  the  superin- 
tendent of  insurance  (1)  a  certified  copy  of  its  charter  or  articles  of  incorporation; 
(2)  if  the  applicant  be  a  corporation,  company  or  association  organized  under  the  laws 
of  any  other  state  of  the  United  States,  a  certificate  from  the  insurance  commission. 


444  Private  Corporations  in  Ohio. 

Credit  Guaranty  Companies  —  Burglary  Insurance,   §§  3691-22-369l-24a. 

commissioner  or  superintendent  of  insurance  of  its  own  state  showing  its  authority 
to  do  such  business;  also  a  certificate  from  said  commissioner  or  superintendent  or 
like  authority  of  its  own  state,  that  corporations,  companies  or  associations  of  this 
state  engaged  in  a  like  business,  are,  upon  complying  with  the  laws  of  said  state 
legally  entitled  to  do  business  in  such  state;  (3)  a  statement  under  oath  of  its  presi- 
dent and  secretary,  or  like  officers,  or  of  the  general  manager  for  the  United  States 
of  a  company  organized  under  the  laws  of  a  foreign  government,  in  the  form  pro- 
vided for  in  this  act  of  its  business  for  the  preceding  year;  (4)  a  copy  of  its  policy, 
bond  or  guaranty,  application  and  by-laws;  (5)  if  the  applicant  be  a  corporation, 
company  or  association  organized  under  the  laws  of  any  other  state  of  the  United 
States,  a  certificate  from  the  insurance  commissioner,  superintendent  of  insurance  or 
other  proper  officer  of  its  own  state,  that  such  company  has  invested  at  least  one 
hundred  thousand  dollars  of  its  assets  in  the  interest-paying  bonds  or  stocks  of  the 
United  States  or  of  this  state,  or  of  some  other  state  of  the  United  States,  of  the 
market  value  of  one  hundred  thousand  dollars  in  the  city  of  New  York,  or  in  bonds 
and  mortgages  on  unincumbered  real  estate  in  this  state,  or  in  the  state  under  the 
laws  of  which  it  is  organized,  of  at  least  double  the  value  of  the  amount  loaned 
thereon;  that  such  securities  are  held  under  the  laws  of  such  state  by  such  officer  for 
the  benefit  of  all  its  policy,  bond  or  guaranty-holders;  and  such  certificate  shall  also 
state  the  character  of  the  securities  held  by  such  officer  and  their  value;  (6)  a  duly 
certified  copy  of  the  resolution  of  its  board  of  directors  or  authority,  duly  acknowl- 
edged before  a  notary  public  by  the  general  manager  for  the  United  States  of  a  com- 
pany organized  under  the  laws  of  a  foreign  government,  appointing  an  attorney  in 
this  state  upon  whom  service  of  summons  or  other  process  in  all  actions  begun  in 
this  state  may  be  made.     (May  2,   1902,  95  v.  348;  May  21,  1894,  91  v.  415.) 

§  3691-22.  Sec.  10.  WHEN  COMPANY  FROM  OTHER  STATE  EXEMPTED 
PROM  MAKING  DEPOSIT.  —  No  deposit  in  this  state  shall  be  required  of  any  cor- 
poration, company  or  association  of  another  state,  if  such  company,  corporation  cr 
association  has  made  the  deposit  in  its  own  state,  referred  to  in  the  last  preceding 
section,  and  has  filed  with  the  superintendent  of  insurance  of  this  state  the  certifi- 
cate mentioned  in  the  last  preceding  section,  as  evidence  of  such  deposit.  Provided, 
however,  that  any  corporation  doing  the  credit  guaranty  business  in  this  state,  which 
is  incorporated  by  or  organized  under  the  laws  of  a  foreign  government,  shall  make 
the  deposit  with  the  superintendent  of  insurance  of  such  securities,  and  in  such 
amount  and  for  the  purpose  required  by  section  3660  of  the  Revised  Statutes  of  Ohio. 
(May  2,  1902,  95  v.  349;  May  21,   1894,  91  v.  415.) 

§  3691-23.  Sec.  11.  FORFEITURE  OF  RIGHT  TO  DO  BUSINESS.  —  Any  cor- 
poration organized  under  this  act,  or  doing  business  in  this  state  hereunder,  which 
shall  fail  or  refuse  to  file  a  statement  or  report,  shall  forfeit  its  right  to  do  business 
under  this  act,  which  forfeiture  the  superintendent  shall  enforce  by  proce: dings  in 
quo  warranto;  and  it  is  hereby  made  the  duty  of  the  attorney-general  of  the  state  to 
institute  such  proceedings  upon  his  request  in  writing.  (May  2,  1902,  95  v.  349; 
May  21,    1894,  91   v.  415.) 

§  3691-24.  Sec.  12.  EXAMINATION. — Any  such  corporation,  association  or 
company  shall  be  subject  to  examination  by  the  superintendent  of  insurance  of  this 
state  under  and  pursuant  to  the  provisions  of  the  laws  of  this  state  relative  to  the 
examination  of  life  insurance  companies.  (May  2,  1902,  95  v.  349;  May  21,  1894, 
91   v.    415.) 

§  3691-24a.  Sec.  1.  LICENSING  OF  COMPANIES  ORGANIZED  FOR  INSUR- 
ING AGAINST  BURGLARY,  ROBBERY,  ETC.  —  That  any  insurance  company  or- 
ganized or  incorporated  on  the   mutual  plan  under  the  laws  of  this   state   (or  any 


Insurance  Companies  Other  Than   Life.  445 


Burglary  Insurance  Companies,    SS   3691-24b  3681-24d 


other  state)  for  the  purpose  of  insuring  against  loss  or  damage  from  burglary  and 
robbery  or  attempt  thereat,  and  securing  against  the  loss  of  money  and  seem  it;. 
course  of  transportation  shall  be  authorized,  admitted  and  licensed  to  do  business  in 
this  state,  as  hereinafter  provided.     (April  16,   1900,  94  v.  350.) 

§  3691-24b.  Sec.  Z.  KEQUISITES  FOR  BEGINNING  BUSINESS.  —  Before  any 
such  company  shall  be  authorized  to  transact  business  in  this  state,  except  to  solicit 
and  receive  applications  for  insurance  and  portions  and  premiums  thereof,  as  here- 
inafter provided,  it  shall  have  in  force  five  hundred  or  more  policies  on  which  pre- 
miums shall  have  been  paid  in  cash,  or  shall  be  evidence(d)  by  the  written  conn 
or  (of)  the  policy  holders,  on  which  not  less  than  one-fifth  of  the  amount  shall  have 
been  paid  in  cash,  the  cash  and  contracts  for  premiums  shall  amount  in  the  aggregate 
to  a  sum  not  less  than  one  hundred  thousand  dollars.  The  premium  contracts  so 
held  shall  constitute  a  part  of  the  valid  assets  of  the  company.  (April  1G,  1900, 
94  v.  351.) 

§  3691-24c  Sec.  3.  COPY  OF  CHARTER,  AND  STATEMENT  TO  BE  FILED 
WITH  SUPERINTENDENT  OF  INSURANCE;  WHAT  STATEMENT  SHALL  CON- 
TAIN.—  And  every  such  company,  association  or  partnership  shall  also  file  a  certified 
copy  of  its  charter,  articles  of  incorporation  or  deed  of  settlement,  together  with  a 
statement  under  the  oath  of  the  president  or  vice-president  and  secretary  of  the  com- 
pany for  which  he  or  they  may  act,  stating  the  name  of  the  company  and  the  place 
where  located,  a  detailed  statement  of  its  assets,  showing  the  number  of  policy 
holders,  aggregate  amount  of  premium  contracts,  the  amount  of  cash  on  hand,  in 
bank,  or  in  the  hands  of  agents,  the  amount  of  real  estate,  and  how  the  «same  is 
incumbered  by  mortgage,  the  number  of  shares  of  stock  of  every  kind  owned  by  the 
company,  the  par  and  market  value  of  the  same,  amount  loaned  on  bond  and  mort- 
gage, the  amount  loaned  on  other  securities,  stating  the  kind  and  amount  loaned  on 
each,  and  the  estimated  value  of  the  whole  amount  of  such  securities,  and  other  assets 
or  property  of  the  company;  also  stating  the  indebtedness  of  the  company,  the 
amount  of  losses  adjusted  and  unpaid,  the  amount  incurred  and  in  process  of  adjust- 
ment, the  amount  resisted  by  the  company  as  illegal  and  fraudulent,  and  all  other 
claims  existing  against  the  company;  and  for  a  company  organized  under  the  laws 
of  any  other  state,  a  copy  of  the  last  annual  report,  if  any,  made  under  any  law  of 
the  state  by  which  such  company  was  incorporated  and  no  agent  shall  be  allowed 
to  transact  business  for  any  such  company  who(se)  reinsurance  reserve,  as  required 
by  this  act,  as  (is)  impaired  to  the  extent  of  twenty  per  cent,  thereof,  while  such 
deficiency  shall  continue.  Nor  shall  it  be  lawful  for  any  agent  or  agents  to  act  for 
any  company  or  companies  referred  to  in  this  act,  directly  or  indirectly,  in  taking 
risks  or  transacting  the  business  of  burglary  and  robbery  insurance  or  the  insurance 
of  the  safe  shipment  of  money  and  securities,  without  procuring  from  the  superin- 
tendent of  insurance  a  certificate  of  authority,  stating  that  such  company  has  com- 
plied with  all  the  requirements  of  this  act  which  apply  to  such  companies,  and  as 
to  companies  organized  under  the  laws  of  any  other  state  there  shall  be  added  the 
name  of  the  attorney  appointed  to  act  for  the  company.     (April  16,  1900.  94  v.  351.) 

§  3691-24d.  Sec.  4.  CHARACTER  OF  BUSINESS  TO  BE  CONDUCTED  IN 
THIS  STATE.  —  Any  company  organized,  admitted  and  licensed  to  transact  business 
in  this  state  under  this  act  shall  confine  its  line  of  business  to  that  stated  in  the 
first  section  of  this  act,  and  shall  confine  its  business  in  this  state  to  banks,  bankers, 
loan  companies,  trust  companies,  city  and  county  treasurers,  and  shall  not  issue  any 
policy  or  policies  to  (any)  person,  firm  or  corporation  in  this  state  other  than  banks, 
bankers,  loan  companies,  trust  companies,  city  and  county  treasurers.  Every  such 
company  shall  set  aside  a  reinsurance  reserve  of  fifty  per  cent,  of  its  premiums  for 


446  Private  Corporations  in  Ohio. 

Burglary  Insurance   Companies,    §§   3691-C4e-3691-24g. 

unexpired  term,  whether  collected  in  cash  or  represented  by  the  obligations  of  the 
policy  holders,  as  written  in  its  policies.     (April  16,  1900,  94  v.  351.) 

§  3691-24e.  Sec.  5.  LIABILITY  OF  POLICY-HOLDERS.—  Policy-holders  of 
any  company  organized  and  admitted  to  transact  business  in  this  state  under  this  act, 
shall  be  held  liable  to  pay  the  membership  fee  and  premium  on  their  insurance  as 
paid  or  contracted  to  be  paid  at  the  time  the  policy  is  taken  out,  and  shall  not  be  held 
liable  for  any  further  or  other  assessment  or  claims  on  the  part  of  the  company  or 
its  policy-holders.  The  membership  fees  and  premiums  agreed  upon  may  be  collected 
in  cash  at  the  time  the  policy  is  issued  or  evidenced  by  written  obligation  of  the 
policy-holder,  as  may  be  agreed  upon  by  the  company  and  the  policy-holder.  Such 
payment  or  obligation  shall  be  the  limit  of  the  liability  of  the  policy-holder  to  the 
company  for  premium  on  their  insurance.     (April   16,   1900,  94  v.  352.) 

§  3691-24f.  Sec.  6.  APPOINTMENT  OF  ATTORNEY.  —  It  shall  not  be  lawful 
for  any  insurance  company,  association  or  partnership  incorporated  by  or  organized 
under  the  laws  of  another  state  of  the  United  States  for  any  of  the  purposes  specified 
in  this  act,  directly  or  indirectly,  to  take  risks  or  transact  any  business  of  insurance 
in  this  state  by  any  agent  or  agents  in  this  state,  until  it  shall  first  appoint  an 
attorney  in  this  state,  who  shall  be  the  superintendent  of  insurance  on  whom  process 
of  law  can  be  served,  and  file  in  the  office  of  the  superintendent  of  insurance  a  written 
instrument  duly  signed  and  sealed,  certifying  such  appointment,  and  any  process 
issued  by  any  court  of  record  in  this  state,  and  served  upon  such  attorney  by  the 
proper  officer  of  the  county  in  which  such  attorney  may  reside  or  be  found,  shall  be 
deemed  a  sufficient  service  of  the  process  upon  such  company.  (April  16,  1900,  94 
v.  352.) 

§  3691-24g.  Sec.  7.  ANNUAL  STATEMENTS.  —  The  statement  and  evidence 
of  membership  assets  and  investments  required  by  section  three  of  this  act,  shall  be 
renewed  from  year  to  year  in  such  a  manner  and  form  as  may  be  required  by  said 
superintendent  of  insurance  with  an  additional  statement  of  the  amount  of  premiums 
received  in  this  state  during  the  preceding  year,  so  long  as  such  agency  continues, 
and  the  said  superintendent  of  insurance,  on  being  satisfied  that  the  membership, 
assets,  securities  and  investments  remain  secure,  as  hereinbefore  mentioned,  shall 
furnish  a  renewal  of  the  certificate  as  aforesaid.  Any  corporation  organized  under 
this  act  doing  business  in  this  state  hereunder,  which  shall  violate  any  of  the  pro- 
visions of  this  act,  the  superintendent  of  insurance  shall  revoke  its  authority  to  do 
business  in  this  state,  and  no  renewal  of  authority  shall  be  granted  to  it  for  a  period 
of  one  year  after  such  revocation.     (April  16,  1900,  94  v.  352.) 


PART    XVI. 

AGRICULTURAL  CORl'i  (RATIONS. 

§  3691-25.  Incorporation. 

§3691-20.  Number  of  board;  quorum. 

§  3691-27.  Names  of  members. 

§3692.        Annual  meeting  of  board.     Election  of  members;  term. 

§3693.        Annual  report  of  board  to  general  assembly. 

§3694.        State  board  of  agriculture;  real  estate  acquired  by;  auditing  of  expenses;  annual 

report ;  legal  adviser. 
§  3695.         How  state  agricultural  fund  at  disposal  of  board. 

§3696.         Secretary  of  state  authorized  to  furnish  stationery  to  board  of  agriculture. 
§3697.         Organization  of  district  or  county  agricultural  societies;   I  uyahoga  county. 
§  3698.         For  what  premiums  may  be  offered  by  agricultural  societies. 
§  3699.         Must  publish  a  list  of  awards,  etc. 
§  3700.         County  societies  erected  into  a  corporation. 
§  3701.         Conveyances  to  such  societies  declared  valid. 
§  3702.         Commissioners  may  assist  agricultural  societies  in  purchasing,  etc.,  sites  for  fairs; 

levy  of  tax. 
§3702-1.     Submission  of  question  of  issuing  bonds  to  liquidate  debt  of  agricultural    society. 
§  3702-2.     Bonds.     Levy. 

§  3702-3.     Proceeds  used  in  liquidation  of  debt. 

§3702-4.     Money  raised  for  county  agricultural  societies  applied  to  purposes  intended   by  B 
though  life  of  act  expired. 

§  3702a.       Commissioners  in  certain  counties  may  assist   agricultural   societies   in   purchasing, 
leasing,  or  improving  sites  for  fair-. 

§  3702b.       Commissioners  may  levy  tax  for  encouragement  of  agricultural  fairs.     Payment  in 
anticipation  of  levy. 

§  3703.         County  commissioners  may  purchase  fair  grounds. 

§  3704.         The  tax  must  be  submitted  to  the  electors. 

§  3705.         When  real  estate  vests  in  the  county. 

§  3705a.       Insurance  on  fair  ground  property. 

§  3705-1.     Franklin  county  fair  grounds. 

§3705-2.     Park  commission  to  be  appointed  by  county  commissioners. 

§3705-3.     Authorizing  Franklin  park   improvement. 

§  3705-4.     Council  may  borrow  money. 

§  3705-5.     Bonds. 

§  3705-6.     Levy. 

§  3705-7.     Qualification  of  park  commissioners. 

§  3705-8.     Meetings,  duties,  etc.,  of  commissioner-. 

§  3705-9.     May  appoint  superintendent  and  other  employ. 

§3705-10.  Franklin  park  commission  may  purchase  certain  property. 

An  Act.      To  authorize    agricultural  societies  to  dispose  of  real   estate. 

§3705-11.  Corporations  for  the  apprehension  and  conviction  of  criminals,  etc. 

§3705-12.  Seal;  constitution;    officers:  oath,  of  office;   certificate  of  appointment  or  election; 
powers  of  officers  and  members. 

§3705-13.  Assessments;  indemnity  for  losses;  expenditures. 

§3705-14.  Reimbursement  of  expense  by  county. 

§  3706.         Societies  may  sell,  and  purchase  other  sites. 

[447] 


448  Private  Corporations  in  Ohio. 


State   Board   of   Agriculture,    §§   3691-25-3692. 


§  3706a.  When  county  commissioners  shall  complete  and  carry  out  societies'  contracts. 

§  370Gb.  Provision  for  payment  for  such  lease  or  purchase  of  lands. 

§  3700c.  Control  and  management  of  lands  where  title  is  vested  in  county  commissioners. 

§  3707.  How  conveyances  to  be  executed. 

§  3708.  Society  may  not  incumber  its  grounds. 

§  3709.  Incorporation  of  township  societies. 

§  3709a.  Authorizing  township   societies   to   incorporate   for  the  detection  of  horse   thieves 

and  other  criminals  and  for  mutual  protection  of  property  against  such. 

§  3710.  Justice  of  peace  may  appoint  special  constables. 

§  3711.  Powers  of  such  constables. 

§  3712.  Duties  of  certain  officers  to  suppress  sale  of  liquor  at  fairs. 

§  3713.  How  articles  seized  to  be  disposed  of. 

§  3713-1.  When  farmers'  institute  society  deemed  body  corporate. 

§3713-2.  Number,  times,  and  places  of  annual  meetings. 

§  3713-3.  County  payments  to  societies  and  state  board  of  agriculture. 

§3713-4.  Society*?  statement  of  expenses;   what  secretary's  certificate  to  indicate.  f 

§  3713-5.  Lecturers  at  annual  meetings. 

§  3713-6.  Publication  and  distribution  of  lectures  and  papers. 

§  3713-7.  Trespass.  , 

§  3713-8.  Penalty. 

§3713-9.  Prosecutions  hereunder. 

§  3713-10.  Proceedings  for  appropriation  of  lands  for  enlargement  of  fair  grounds. 
§  3713-11.  Board  of  directors   to  prosecute  proceedings. 

§  3691-25.  INCORPORATION.  —  That  Michael  L.  Sullivant,  *  *  *  be  and 
they  are  hereby  created  a  body  corporate,  with  perpetual  succession,  in  the  manner 
hereafter  described,  under  the  name  and  style  of  the  "  Ohio  state  board  of  agricul- 
ture."    (S.  &  C.  63;  February  28,  1846,  44  v.  70.) 

§  3691-26.  Sec.  1.  NUMBER  OF  BOARD;  QUORUM.  —  The  Ohio  state  board 
of  agriculture  shall  consist  of  ten  members,  five  of  whom  shall  constitute  a  quorum. 
(February  8,  1841,  45  v.  49.) 

§  3691-27.  Sec.  2.  NAMES  OF  MEMBERS.  —  That  Allen  Trimble,  M.  L.  Sulli- 
vant, Samuel  Medary,  Darius  Lapham,  A.  E.  Strickle,  Arthur  Watts,  M.  B.  Bateham, 
John  Codding,  Jared  P.  Kirtland,  and  Isaac  Moore,  be  continued  members  of  the 
board;  their  term  of  service  and  the  mode  of  appointing  their  successors  to  remain 
unaltered  by  this  act.     (February  8,  1847,  45  v.  49.) 

§  3692.  ANNUAL  MEETING  OF  BOARD.  —  There  shall  be  held  in  the  city  of 
Columbus  on  the  first  Thursday  after  the  second  Monday  in  January,  an  annual  meet- 
ing of  the  Ohio  state  board  of  agriculture,  together  with  the  president  of  each  county 
agricultural  society  or  the  duly  authorized  delegate  therefrom  who  shall  for  the  time 
being  be  ex-officio  members  of  the  state  board  of  agriculture  for  the  purpose  of 
deliberation  and  consultation  as  to  the  wants,  prospects  and  conditions  of  agriculture 
throughout  the  state;  and  at  such  meeting  the  several  reports  from  the  societies  shall 
be  delivered  to  the  president  of  the  state  board  of  agriculture;  provided  that  in  any 
county  having  no  agricultural  society,  the  presidents  of  the  farmers'  institutes  of 
the  county,  and  holding  meetings  under  the  auspices  and  by  the  direction  of  the 
state  board  of  agriculture,  or  a  majority  thereof,  are  hereby  authorized  and  em- 
powered to  choose  a  representative  to  the  annual  meeting,  who  shall  upon  presenta- 
tion of  the  proper  certificates  be  entitled  to  all  the  privileges  conferred  on  ex-officio 
members  by  this  section. 


Agricultural  Corporations.  449 


State  Board  —  County   and   District   Societies,    §§    3693-C697. 


ELECTION  OF  OFFICERS.  —  At  this  annual  meeting  there  shall  be  elected  t*o 
members  of  the  state  board  of  agriculture  whose  term  shall  be  five  years  and  until 
their  successors  are  elected.  Only  the  presidents  of  county  agricultural  societies  or 
the  duly  authorized  delegates  therefrom  and  representatives  chosen  by  the  president 
of  farmers'  institutes  not  members  of  the  board  shall  be  entitled  to  vote  for  members 
of  the  board.  (April  23,  1902,  95  v.  243;  January  13,  1898,  93  v.  3;  April  24, 
1890,  87  v.  258;  April  5,  1882,  79  v.  70;  R.  S.  1880;  February  20,  1861,  58  v.  22, 
§  2;  S.  &  S.  4.) 

§  3693.  ANNUAL  REPORT  OF  BOARD  TO  GENERAL  ASSEMBLY.— The  board 
may  elect  such  officers  as  may  by  it  be  deemed  necessary.  It  shall  hold  an  annual 
exhibition  of  the  agricultural  and  general  productive  industries  of  the  state;  shall 
make  an  annual  report  to  the  general  assembly,  embracing  its  proceedings  for  the 
past  year,  and  an  abstract  of  the  proceedings  of  the  several  county  agricultural 
societies,  as  well  as  a  general  view  of  the  conaition  of  agriculture  throughout  the 
state,  accompanied  by  such  recommendations  as  it  may  deem  interesting  and  useful. 
(April  5,  1882,  79  v.  70;  R.  S.   1880;  February  28,  1846,  44  v.  70,   g  7;  S.  &  S.  64.) 

§  3694.  STATE  BOARD  OF  AGRICULTURE:  REAL  ESTATE  ACQUIRED  BY; 
AUDITING  OF  EXPENSES;  ANNUAL  REPORT;  LEGAL  ADVISER.  —  The  board 
may  hold  in  fee  simple  such  real  estate  as  it  may  have  heretofore  purchased,  or  may 
hereafter  purchase,  as  sites  whereon  to  hold  its  annual  fairs,  and  all  such  lands  held 
by  the  board  for  said  purpose  shall  be  exempt  from  taxation,  but  when  any  such  real 
estate  as  may  have  heretofore  been  purchased  or  may  hereafter  be  purchased,  shall 
cease  to  be  used  by  the  board  as  sites  whereon  to  hold  such  annual  fairs,  then  such 
real  estate  with  the  improvements  thereon,  belonging  to  the  board,  shall  revert  to  the 
state  of  Ohio;  and  no  portion  of  any  such  real  estate  shall  be  disposed  of  except  by  act 
of  the  legislature.  The  board  shall  have  the  power  to  audit  and  pay  its  ordinary 
expenses,  including  the  necessary  personal  expenses  of  the  members  in  their  attend- 
ance on  the  meetings  of  the  board,  out  of  any  funds  in  its  possession  or  out  of  the 
state  agricultural  fund,  and  shall,  in  its  annual  report,  make  a  complete  showing  of 
its  financial  transactions;  and  the  attorney-general  shall  act  as  the  legal  adviser  of 
the  board,  the  same  as  for  other  state  departments.  (May  4,  1885,  82  v.  248;  March 
25,  1884,  81  v.  82;  R.  S.   1880;  February  18,  1848,  46  v.  53,   §  1;  S.  &  C.  66.) 

§  3695.     HOW  STATE  AGRICULTURAL  FUND  AT  DISPOSAL  OF  BOARD.  — 

The  state  agricultural  fund  shall  be  at  the  disposal  of  the  board  for  the  improvement 
of  the  agricultural  interests  of  the  state;  and  when  escheated  property  is  legally 
reclaimed  by  any  heir,  it  shall  be  held  subject  to  the  payment,  to  the  purchaser  of  the 
state,  of  so  much  of  the  original  purchase  money  as  it  received,  and  legal  interest  to 
the  time  of  such  reclamation.     (February  8,   1847,  45  v.  43,   §   6;  S.   &  C.   65.) 

§  3696.  SECRETARY  OF  STATE  AUTHORIZED  TO  FURNISH  STATIONERY 
TO  BOARD  OF  AGRICULURE.  —  The  secretary  of  state  is  authorized  to  furnish  the 
board  with  such  stationery  as  may  be  requisite  to  the  proper  discharge  of  its  duties, 
together  with  such  blank  books  as  may  be  necessary  to  keep  the  records  of  the  trans- 
actions of  the  board.  (February  11,  1885,  82  v.  64;  R.  S.  1880;  March  30,  1864, 
61  v.  83,  §   1;  S.  &  S.  5.) 

§  3697.  ORGANIZATION  OF  DISTRICT  OR  COUNTY  AGRICULTURAL 
SOCIETIES;  CUYAHOGA  COUNTY.  —  When  thirty  or  more  persons,  residents  of 
any  county  of  the  state,  or  of  a  district  embracing  one  or  more  counties,  organize 
themselves  into  an  agricultural  society,  and  adopt  a  constitution  and  by-laws  and 
select  the  usual  and  proper  officers,  and  otherwise  conducts  its  affairs  in  conformity 
to  the  statutes  of  Ohio  and  to  the  rules  of  the  state  board  of  agriculture,  and  when 
such  county  or   district  agricultural  society  shall   have  held    an  annual   exhibition 

LAW   GOV.    PRIV.    COR. —   2Q. 


450  Private  Corporations  in  Ohio. 

County  and  District  Agricultural  Societies,  §§  3698,  3699. 

in  accordance  with  section  3698  of  the  Revised  Statutes  of  Ohio,  and  made  proper 
report  to  the  state  board  of  agriculture,  then,  upon  presentation  to  the  county  auditor, 
of  a  certificate  from  the  president  of  the  state  board  of  agriculture,  attested  by  the 
secretary  of  said  board,  that  the  laws  of  the  state  and  the  rules  of  the  state  board 
of  agriculture  have  been  complied  with,  the  county  auditor  of  each  county  wherein 
such  agricultural  societies  are  organized,  shall  annually  draw  an  order  on  the  treas- 
urer of  the  county  in  favor  of  the  president  of  the  county  or  district  agricultural 
society  for  a  sum  equal  to  two  cents  to  each  inhabitant  of  the  county,  upon  the  basis 
of  the  last  previous  national  census,  but  the  total  amount  thereof  shall  not  exceed 
in  any  county  the  sum  of  eight  hundred  dollars  ($800);  and  the  treasurer  of  the 
county  shall  pay  the  same.  Provided,  that  where  in  any  county  containing  a  city 
of  the  second  grade  of  the  first  class,  the  site  for  holding  county  fairs  is  situated  so 
far  from  the  geographical  center  of  said  county  that,  in  the  opinion  of  the  commis- 
sioners of  said  county  the  agricultural  interests  of  said  county  will  best  be  promoted 
by  the  establishment  of  another  and  additional  society  and  site  whereon  to  hold  fairs; 
upon  the  organization  of  such  additional  society  in  the  manner  provided  herein,  said 
additional  society  shall  be  entitled  to  receive  out  of  the  county  treasury  the  sum 
provided  in  this  section  and  also  be  entitled  to  the  provisions  of  other  sections  of  the 
statutes  in  reference  to  county  agricultural  societies.  (May  6,  1902,  95  v.  403;  April 
16,  1900,  94  v.  395;  April  21,  1896,  92  v.  205;  April  13,  1893,  90  v.  173;  April 
16,  1886,  80  v.  142;  R.  S.   1880;  February  28,  1846,  44  v.  70,  §  1;  S.  &  C.  61.) 


Liable   for  negligence. 

A   society    organized   under    this   section   is 
liable  for  damages  at  the  suit  of  one  who  is 


injured  in  consequence  of  the  negligent  con- 
struction of  its  seats. —  Dunn  v.  Agricultural 
Society,  46  Oh.  St.  93    (1888). 


§  3698.  FOR  WHAT  PREMIUMS  MAY  BE  OFFERED  BY  AGRICULTURAL 
SOCIETIES. —  The  several  county  or  district  societies  which  may  be  formed  under 
the  provisions  of  the  preceding  section  shall,  annually,  offer  and  award  premiums  for 
the  improvement  of  soils,  tillage,  crops,  manures,  implements,  stock,  articles  of 
domestic  industry,  and  such  other  articles,  productions,  and  improvements,  as  they 
deem  proper,  and  may  perform  all  such  acts  as  they  deem  best  calculated  to  promote 
the  agricultural  and  household  manufacturing  interests  of  th  =  district  and  of  the 
state,  and  shall  regulate  the  amount  of  premiums,  and  the  different  grades  of  the 
same,  so  that  it  shall  be  competent  for  small  as  well  as  large  farmers  to  have  an  op- 
portunity to  compete  therefor;  and  in  making  their  awards  special  reference  shall  be 
had  to  the  profits  which  accrue,  or  are  likely  to  accrue,  from  the  improved  mode  of 
raising  the  crop,  or  of  improving  the  soil,  or  stock,  or  of  the  fabrication  of  the  articles 
thus  offered,  so  that  the  premium  shall  be  given  for  the  most  economical  mode  of 
improvement;  and  all  persons  offering  to  compete  for  premiums  on  improved  modes 
of  tillage,  or  the  production  of  any  crops  or  other  articles,  shall  be  required,  before 
such  premium  is  adjudged  to  deliver  to  the  awarding  committee  a  full  and  correct 
statement  of  the  process  of  such  mode  of  tillage  or  production,  and  the  expense  and 
value  of  the  same,  with  a  view  of  showing  accurately  the  profits  derived  or  expected 
to  be  derived  therefrom.  Provided,  that  during  any  year,  when  the  state  board  of 
agriculture  shall  hold  its  fair  upon  the  grounds  of  any  county  or  district  agricultural 
society,  such  society  shall  be  excused  if  its  board  of  directors  so  decides  from  comply- 
ing with  the  provisions  of  this  section,  and  shall  incur  no  forfeiture  of  its  rights  as 
such  agricultural  society,  by  reason  of  not  holding  such  fair.  (April  9,  1880,  77  v. 
143;  R.   S.   1880;  February  28,   1846,  44  v.   70,   §  2;  S.  &  C.  63.) 

§  3699.  MUST  PUBLISH  A  LIST  OF  AWARDS,  ETC.— County  and  district 
societies  shall  publish,  annually,  a  list  of  awards,  and  an  abstract  of  the  treasurer's 
account,  in  a  newspaper  of  the  district,  and  make  a  report  of  their  proceedings  during 
the  year,  and  a  synopsis  of  the  awards  for  improvements  in  agriculture  and  house- 


AGRICUL1  iu  \i.    (  lORPORATIONS.  451 

County  Agricultural  Societies,  SS  3700  3702-1. 

hold  manufactures,  together  with  an  abstract  of  the  several  descriptions  of  these 
improvements,  and  also  make  a  report  of  the  condition  of  agriculture  in  their  county 
or  district,  which  report  shall  be  made  in  accordance  with  the  rules  and  regulations 
of  the  state  board  of  agriculture,  and  shall  be  forwarded  to  the  state  board  at  its 
annual  meeting  in  January  in  each  year;  and  no  subsequent  payment  shall  be  made 
from  the  county  treasury  unless  a  certificate  be  presented  to  the  auditor,  from  the 
president  of  the  state  board,  shov/ing  that  such  reports  have  been  made.  (February 
20,   1861,  58  v.  22,  §    1;  S.  &  S.  4;  S.  &  C.  63.) 

§  3700.  COUNTY  SOCIETIES  ERECTED  INTO  CORPORATIONS— All  county 
societies  which  have  been  or  may  hereafter  be  organized  are  declared  bodies  corporate 
and  politic,  and  as  such  shall  be  capable  of  suing  and  being  sued,  and  of  holding  in 
fee  simple  such  real  estate  as  they  have  heretofore  purchased  or  may  hereafter  pur- 
chase as  sites  whereon  to  hold  their  fairs.  (February  15,  1853,  51  v.  333,  §  1;  S.  & 
C.   66.) 

5  3701.  CONVEYANCES  TO  SUCH  SOCIETIES  DECLARED  VALID.— All 
deeds,  conveyances,  and  agreements  in  writing,  made  to  and  by  such  county  societies, 
for  the  purchase  of  real  estate  as  sites  whereon  to  hold  their  fairs,  shall  be  good  and 
valid  in  law  and  equity,  and  shall  vest  a  title  in  fee  simple  in  such  societies  to  the 
real  estate,  without  words  of  inheritance.  (February  15,  1853,  51  v.  333,  J  2;  S. 
&  C.  67.) 

§  3702.  COMMISSIONERS  MAY  ASSIST  AGRICULTURAL  SOCIETIES  IN 
PURCHASING,  ETC.,  SITES  FOR  FAIRS;  LEVY  OF  TAX.— When  a  county 
society  has  purchased,  or  leased  for  a  term  of  not  less  than  twenty  years,  real  estate 
as  a  site  whereon  to  hold  fairs,  or  where  the  title  to  the  grounds  is  vested  in  fee  in 
the  county,  but  the  society  has  the  control  and  management  of  the  lands  and  build- 
ings, the  county  commissioners  may,  if  they  think  it  for  the  interests  of  the  county, 
and  society,  pay  out  of  the  county  treasury  the  same  amount  of  money  for  the  pur- 
chase or  lease  and  improvement  of  such  site  as  is  paid  by  such  agricultural  society 
or  individuals  for  such  purpose;  and  such  commissioners  may  levy  a  tax  upon  all 
the  taxable  property  of  the  county  sufficient  to  meet  the  provisions  of  this  section. 
(March  21,  1887,  84  v.  230;  R.  S.   1880;  March  30,   1871,  68  v.  50.  *  3;  S.   &  S.  6.) 

§  3702-1  Sec.  1.  SUBMISSION  OF  QUESTION  OF  ISSUING  BONDS  TO 
LIQUIDATE  DEBT  OF  COUNTY  AGRICULTURAL  SOCIETY.— In  all  counties  in 
which  there  may  be  a  county  agricultural  society  which  has  purchased  a  site  whereon 
to  hold  fairs,  or  where  the  title  to  such  grounds  is  vested  in  fee  in  the  county,  and 
such  society  has  become  indebted  to  an  extent  of  not  less  than  fifteen  thousand  dol- 
lars upon  the  presentation  of  a  petition  signed  by  not  less  than  five  hundred  resident 
electors  of  the  county  praying  for  the  submission  to  the  electors  of  the  county  of  the 
question  whether  or  not  the  bonds  of  the  county  shall  be  issued  and  sold  for  the  pur- 
pose of  liquidating  the  indebtedness  of  such  society,  it  shall  be  the  duty  of  such 
county  commissioners  within  ten  days  thereafter,  by  resolution,  to  fix  a  date  which 
shall  be  within  thirty  days,  upon  which  the  question  of  issuing  and  selling  such 
bonds,  in  amount  and  denomination  such  as  may  be  necessary  for  the  purpose  in  view, 
shall  be  submitted  to  the  electors  of  the  county,  and  shall  cause  a  copy  of  such  resolu- 
tion to  be  certified  to  the  deputy  state  supervisors  of  elections  of  the  county,  and 
such  deputy  state  supervisors  of  elections  shall,  within  ten  days  thereafter,  proceed 
to  prepare  the  ballots  and  make  all  other  necessary  arrangements  for  the  submission 
of  such  question  to  the  electors  of  such  county,  at  the  time  fixed  by  such  resolution. 
Such  election  shall  be  held  at  the  regular  placas  of  voting  in  such  county  and  shall 


452  Private  Corporations  in  Ohio. 

County   Agricultural   Societies,    §§    3702-2-3702a. 


be  conducted,  canvassed  and  certified  in  the  same  manner,  except  as  otherwise  pro- 
vided by  law,  as  elections  for  the  election  of  county  officers.  Fifteen  days'  notice  of 
the  submission  shall  by  the  deputy  state  supervisors  of  election,  be  given  by  publi- 
cation in  one  or  more  newspapers  published  in  the  county  once  a  week  for  two  con- 
secutive weeks,  stating  the  amount  of  bonds  to  be  issued,  the  purpose  for  which  they 
are  to  be  issued  and  the  time  and  places  of  holding  such  election;  and  if  the  majority 
of  the  voters  voting  upon  the  question  of  issuing  the  bonds  vote  in  favor  thereof, 
then  and  not  otherwise  the  bonds  shall  be  issued,  and  the  tax  hereinafter  mentioned 
shall  be  levied.  Those  who  vote  in  favor  of  the  proposition  shall  have  written  or 
printed  on  their  ballots  "  for  the  issue  of  bonds  "  and  those  who  vote  against  the 
same  shall  have  written  or  printed  on  their  ballots  "  against  the  issue  of  bonds." 
(April  25,  1898,  93  v.  358.) 

§  3702-2.  Sec.  2.  BONDS.—  In  the  event  that  a  majority  of  the  voters  of  such 
county  voting  upon  the  question  of  issuing  the  bonds  vote  in  favor  thereof,  it  shall 
be  the  duty  of  the  board  of  county  commissioners,  for  the  purpose  of  liquidating  such 
indebtedness,  to  issue  and  sell  the  bonds  of  the  county  according  to  law,  in  such 
amount  as  may  be  necessary,  and  bearing  interest  not  to  exceed  six  per  cent,  per 
annum,  payable  semi-annually; 

LEVY. —  Said  bonds  to  be  issued  for  a  period  of  not  less  than  ten  nor  more  than 
twenty  years;  and  such  county  commissioners  shall  thereupon  levy  a  tax  upon  all 
the  taxable  property  upon  the  duplicate  of  the  county  to  pay  such  bonds  as  they 
may  mature  and  the  interest  thereon,  at  such  rate  and  for  such  length  of  time  as  may 
be  necessary  for  the  purpose.      (April  25,  1898,  93  v.  359.) 

§  3702-3.  Sec.  3.  PROCEEDS  USED  IN  LIQUIDATION  OE  DEBT.—  The  county 
commissioners,  upon  the  sale  of  such  bonds,  shall,  from  the  proceeds  arising  from 
such  sale,  pay  off  and  liquidate  the  indebtedness  for  which  they  were  so  sold.  (April 
25,  1898,  93  v.  359.) 

§  3702-4.  Sec.  1.  MONEY  RAISED  FOR  COUNTY  AGRICULTURAL  SOCIE- 
TIES APPLIED  TO  PURPOSES  INTENDED  BY  ACT  THOUGH  LIFE  OF  ACT 
EXPIRED. —  Where  money  has  been  raised  by  taxation  in  any  county  for  the  pur- 
pose of  leasing  lands  for  county  fairs,  or  for  the  purpose  of  erecting  buildings  for 
county  fair  purposes,  or  for  making  any  improvements  on  county  fair  grounds,  or  for 
any  purpose  connected  with  the  use  of  county  fair  ground  or  the  management 
thereof  by  any  county  agricultural  society,  shall  be  used  for  such  purpose  only,  not- 
withstanding the  law  under  which  money  was  raised  by  taxation  may  have  expired 
by  limitation;  such  moneys  shall  be  used  for  the  purposes  intended  by  the  act  under 
which  such  moneys  were  levied  and  collected  by  taxation.  (April  25,  1898,  93 
v.   316.) 

§  3702a.  COMMISSIONERS  IN  CERTAIN  COUNTIES  MAY  ASSIST  AGRI- 
CULTURAL SOCIETIES  IN  PURCHASING,  LEASING  OR  IMPROVING  SITES 
FOR  FAIRS. —  When  a  county  society  in  a  county  containing  a  city  of  second  grade 
of  the  first  class  has  purchased  or  leased  for  a  term  of  not  less  than  twenty  years, 
real  estate  as  a  site  whereon  to  hold  fairs,  or  when  the  title  to  the  grounds  is  vested 
in  fee  in  the  county,  but  the  society  has  the  control  and  management  of  the  lands  and 
buildings  the  county  commissioners  may  if  they  think  it  for  the  interests  of  the 
county  and  society,  pay  out  of  the  county  treasury  the  same  amount  of  money  for  the 
purchase  or  lease  and  improvement  of  such  site  or  either  of  them  as  is  paid  by  such 
agricultural   society    or  individuals   for  such  purpose    or   either  of   them,    and   such 


Agricultural  Corporations.  453 


County   Agricultural   Societies,    S*    3702b  3705. 

commissioners  may  levy  a  tax  upon  all  the  taxable  property  of  the  county  sufficient 
to  meet  the  provisions  of  this  section.     (March  8,  1889,  86  v.  69.) 

S  §  3702b.  COMMISSIONERS  MAY  LEVY  TAX  FOR  ENCOURAGEMENT  OF 
•'AGRICULTURAL  FAIRS.— When  a  county  has  purchased  or  Leafed  for  a  term  of 
not  less  than  twenty  years,  real  estate  as  a  site  whereon  to  hold  fairs,  or  where  the 
title  to  the  grounds  is  vested  in  fee  in  the  county  agricultural  society,  or  in  the  county 
the  agricultural  society  has  the  control  and  management  of  the  lands  ami  build- 
ings, or  when  such  lands  and  buildings  are  held  by  lease  from  any  such  society  by 
another  society,  association  or  incorporated  company,  the  county  commissioners  are 
authorized  for  the  purpose  of  encouraging  agricultural  fairs,  to  annually  levy  taxes 
of  not  exceeding  one-tenth  of  one  mill  upon  all  the  taxable  property  of  the  county, 
for  the  purpose  of  raising  not  to  exceed  one  thousand  dollars  in  any  county,  which 
sum  shall  be  paid  by  the  treasurer  of  the  county  to  the  treasurer  of  the  agricultural 
society,  except  in  case  of  such  lease  by  such  society  when  such  sum  shall  be  paid  to 
the  treasurer  of  such  lessee  society,  association,  or  incorporated  company  upon  an 
order  from  the  county  auditor  duly  issued  therefor; 

PAYMENT  IN  ANTICIPATION  OF  LEVY.— And  the  county  commissioners, 
prior  to  the  levy  of  any  such  tax,  may,  if  they  think  it  for  the  interest  of  the  county 
and  society,  pay  out  of  the  treasury  any  sum  not  exceeding  one  thousand  dollars, 
as  herein  provided,  out  of  the  money  in  the  general  fund  not  otherwise  appropriated. 
(April  10,  1902,  95  v.  122;  April  25,  1898,  93  v.  292.) 

§  3703.  COUNTY  COMMISSIONERS  MAY  PURCHASE  FAIR  GROUNDS  — 
If  a  county  society  and  the  county  commissioners  decide  that  the  interests  of  the 
society  and  county  demand  an  appropriation  from  the  county  treasury  for  the  pur- 
chase and  improvement  of  county  fair  grounds  greater  than  that  authorized  by  the 
preceding  section,  or  without  any  action  of  or  purchase  by  the  society,  the  commis- 
sioners may  levy  a  tax  upon  all  the  taxable  property  of  the  county,  the  amount  of 
which  shall  be  fixed  by  the  commissioners,  but  shall  in  no  event  exceed  one-half  of 
one  mill  on  the  dollar  of  the  taxable  property  of  the  county  in  addition  to  the  amount 
authorized  in  the  last  section  to  be  paid  for  such  purpose.  (March  30,  1871,  68  v. 
50,  §  3.) 

§  3704.  THE  TAX  MUST  BE  SUBMITTED  TO  THE  ELECTORS.— No  such 
additional  tax  shall  be  levied  until  the  question  as  to  the  amount  to  be  levied  has 
been  submitted  by  the  commissioners  to  the  qualified  electors  of  the  county  at  some 
general  election,  and  a  notice  of  which,  specifying  the  amount  to  be  levied,  has  been; 
given  at  least  thirty  days  previous  to  such  election,  in  one  or  more  newspapers  pub- 
lished and  of  general  circulation  in  the  county;  those  voting  at  such  election  in  favor 
of  such  tax  shall  have  written  or  printed  on  their  ballots  ''Agricultural  tax.  Yes," 
and  those  voting  against  the  same,  "Agricultural  tax,  No,"  and  if  a  majority  of  the 
votes  cast  be  in  favor  of  paying  such  tax,  the  same  may  be  levied  and  collected  as 
other  taxes;  and  when  such  tax  is  collected  by  the  county  treasurer,  the  auditor  shall 
issue  his  order  for  the  amount  so  collected  to  the  treasurer  of  the  county  agricultural 
society,  on  his  filing  with  the  auditor  an  undertaking,  in  double  the  amount  so  col- 
lected, with  good  and  sufficient  sureties  to  be  approved  by  the  auditor,  conditioned 
for  the  faithful  paying  over  and  accounting  to  such  society  for  such  funds.  (March 
30,  1871,  68  v.  50,  §  3.) 

§  3705.  WHEN  REAL  ESTATE  VESTS  IN  THE  COUNTY.—  When  a  society 
is  dissolved  or  ceases  to  exist,  in  any  county  where  payments  have  been  made  for 
real  estate,  or  improvements  upon  such  real  estate,  or  for  the  liquidation  of  indebted- 


454  Private  Corporations  in  Ohio. 

County  Agricultural   Societies  —  Parks,   etc.,    §§   3705a-3705-4. 

ness,  for  the  use  of  such  society,  all  such  real  estate  and  improvements  shall  vest  in 
fee  simple  in  the  county  by  which  such  payments  were  made.  (April  25,  1898,  93  v. 
360;  February  15,   1853,  51   v.  333,  §  4;  S.   &  C.  67.) 

§  3705a.  INSURANCE  ON  FAIR  GROUND  PROPERTY— That  the  county 
commissioners  of  any  county  are  hereby  authorized  to  keep  insured  all  buildings 
owned  by  the  county  agricultural  society,  or  by  the  county,  for  the  benefit  of  the 
county  agricultural  society,  or  the  county,  as  the  case  may  be,  if  deemed  proper  by 
said  commissioners.      (April  10,  1902,  95  v.  123;  March  10,  1898,  93  v.  40.) 

§  3705-1.  Sec.  1.  FRANKLIN  COUNTY  FAIR  GROUNDS.—  In  counties  in 
which  there  are  located  cities  of  the  first  grade  of  the  second  class,  when  agricultural 
societies  are  dissolved  or  cease  to  exist,  when  payments  have  been  made  for  real 
estate,  or  improvements  upon  such  real  estate,  for  the  use  of  such  societies  by  such 
counties,  such  real  estate  and  improvements  may  vest  in  fee  simple  in  the  counties 
by  which  such  payments  were  made,  and  such  real  estate  shall  be  held  for  the  use  of 
a  public  park  for  the  people  of  said  county,  anything  in  section  three  thousand  seven 
hundred  and  five,  to  the  contrary  notwithstanding.     (March  17,  1886,  83  v.  192.) 

§  3705-2.  Sec.  2.  PARK  COMMISSION  TO  BE  APPOINTED  BY  COUNTY  COM- 
MISSIONERS.—  Such  real  estate  so  held  shall  be  under  the  supervision  and  control 
of  a  park  commission,  consisting  of  five  persons,  two  of  whom  shall  be  appointed  from 
the  country  by  the  county  commissioners,  and  two  from  the  city  to  be  appointed  by 
the  mayor.  Said  commissioners  shall  be  appointed  for  the  term  of  three  years,  and 
shall  serve  until  their  successors,  who  shall  be  appointed  in  the  same  manner,  shall 
be  appointed.  The  mayor  shall  be  ex-ofncio  a  member  of  said  commission  and  entitled 
to  vote  on  all  questions  coming  before  it.  Any  fund  under  the  control  of  said  agricul- 
tural society,  when  it  shall  cease  to  exist  as  aforesaid,  shall  be  turned  over  to  such 
park  commissioners.      (March  23,   1891,   88  v.   372;  March   17,   1886,  83  v.   192.) 

§  3705-3.  Sec.  1.  AUTHORIZING  FRANKLIN  PARK  IMPROVEMENT.— 
When  real  estate  which  has  heretofore  been  purchased  by  any  county,  and  improve- 
ments made  thereon,  for  the  use  of  a  county  agricultural  society,  and  such  real  estate 
is  situate  within  the  corporate  limits  of  a  city,  and  has  been  abandoned  for  such  use, 
and,  by  authority  of  the  act  to  which  this  act  is  supplementary,  the  title  to  such  real 
estate  is  vested  in  fee  simple  in  such  county,  and  the  premises  devoted  to  the  pur- 
poses of  a  public  park  for  the  use  of  the  people  of  the  county  and  of  such  city,  and  the 
supervision  and  control  of  the  same  vested  in  a  park  commission,  consisting  in  part 
of  residents  of  such  city,  and  in  part  of  persons  who  reside  in  the  county  but  are  not 
residents  of  such  city,  and  their  successors  in  office,  and  the  city  council  of  such  city 
deems  it  advisable  to  enlarge  such  park  by  the  purchase  of  land  adjoining  it,  such 
council  may,  by  ordinance,  duly  passed,  provide  for  the  investment  of  not  more  than 
nine  thousand  five  hundred  dollars  for  such  purpose  of  enlargement;  provided,  that 
when  any  land  is  purchased  by  such  city  for  the  purpose  aforesaid,  the  title  thereto 
shall  vest  in  the  city,  and  it  shall  be  controlled  and  managed  by  the  park  commis- 
sion aforesaid  for  public  park  purposes,  in  connection  with  the  other  premises  under 
its  control  and  supervision  for  the  same  purposes;  and  the  care,  improvement  and 
embellishment  of  such  park  shall  be  at  the  expense  of  such  city.  (April  12,  1889, 
86  v.   252.) 

§  3705-4.  Sec.  2.  COUNCIL  MAY  BORROW  MONEY.— That  for  the  purpose 
of  providing  the  money  with  which  to  pay  for  any  real  estate  that  may  be  purchased 
in  pursuance  of  the  preceding  section,  and  the  care,  improvement  and  embellishment 
mentioned  therein,  the  city  council  of  any  such  city  is  hereby  authorized  and  empow- 


Agricultural  Corporatio  455 


County  Agricultural   Societies  —  Parks,   etc.,    gj   3705-5  3705-9. 

ered  to  borrow  such  sum  of  money,  not  exceeding  twenty-five  thousand  dollars,  as  it 
may  deem  necessary,  at  a  rate  of  interest  not  exceeding  six  per  cent,  per  annum;  and 
after  paying  for  the  land  so  purchased,  the  remainder  of  the  money  so  borrowed  shall 
be  placed  in  the  custody  of  the  treasurer  of  the  city,  and  be  disbursed  as  other  rn 
of  the  city,  but  for  the  purposes  mentioned  in  this  section  only.  (April  12,  1889, 
86  v.  252.) 

§  3705-5.  Sec.  3.  BONDS. —  That  for  any  money  so  borrowed  the  city  council 
shall  issue  bonds  of  the  city,  which  shall  be  signed  by  its  president  and  attested  by 
the  city  clerk,  who  shall  keep  a  record  thereof,  and  also  of  the  coupons  attached 
thereto.  Such  bonds  shall  be  in  sums  of  not  less  than  one  hundred  dollars  each,  and 
be  payable  to  bearer,  at  such  place  as  the  council  may  designate  therein;  and  they 
shall  specify  distinctly  the  purpose  for  which  they  are  issued.  The  payment  of  the 
principal  of  such  bonds  shall  not  be  deferred  beyond  a  period  of  ten  years,  and  shall 
be  payable  at  the  pleasure  of  the  city  council  after  five  years.  Such  bonds  shall  not 
be  sold  for  less  than  their  par  value,  and  the  interest  thereon  shall  be  payable  semi- 
annually.     (April  12,  1889,  86  v.   252.) 

§  3705-6.  Sec.  4.  LEVY. —  The  city  council  of  any  city  which  borrows  money 
and  issues  bonds  for  the  purposes  aforesaid  shall  levy  annually  for  park  purposes, 
and  for  the  purpose  of  paying  the  principal  of  the  outstanding  bonds  issued  under 
the  authority  of  this  act,  and  the  interest  thereon  as  it  shall  become  due,  a  tax  of  not 
more  than  one-tenth  of  one  mill  on  the  dollar.      (April  12,  1889,  86  v.  252.) 

§  3705-7.  Sec.  5.  QUALIFICATION  OF  PARK  COMMISSIONERS.—  The  mem- 
bers of  any  such  park  commission  as  is  referred  to  in  this  act.  or  the  act  to  which  this 
is  supplementary,  except  the  member  ex-officio,  shall  each,  before  entering  upon  the 
duties  of  his  office,  take  and  subscribe  an  oath,  before  some  officer  authorized  by  law 
to  administer  oaths,  that  he  will  honestly  and  faithfully  discharge  the  duties  of  his 
office,  and  also  give  a  bond,  payable  to  such  city,  with  at  least  two  good  and  sufficient 
sureties,  in  the  sum  of  ten  thousand  dollars,  to  be  approved  by  the  mayor  of  the  city, 
and  conditioned  for  the  faithful  performance  of  his  duties  as  a  member  of  such  com- 
mission; and  if  any  person  who  has  been  or  may  hereafter  be  appointed  a  member  of 
any  such  commission  fail  or  neglect  for  ten  days  to  qualify  as  herein  provided,  his 
office  shall  be  deemed  vacant,  and  another  suitable  person  shall  be  appointed  in  his 
stead.      (April    12,    1889,   86   v.   252.) 

§  3705-8.  Sec.  6.  MEETINGS,  DUTIES,  ETC.,  OF  COMMISSIONERS.— Such 
park  commission  shall  hold  meetings  as  often  as  once  a  month,  and  adopt  all  neces- 
sary rules  for  the  regulation  of  its  business.  It  shall  elect  a  president  and  a  secre- 
tary; it  shall  keep  a  complete  record  of  all  its  proceedings,  which  record,  or  a  copy 
thereof,  duly  certified  by  its  secretary,  shall  be  competent  evidence  of  its  transac- 
tions in  all  the  courts  of  this  state;  and  the  yeas  and  nays  shall  be  taken  upon  the 
passage  of  every  resolution  or  order,  and  entered  upon  the  journal.  Three  members 
of  the  board  shall  constitute  a  quorum  for  the  transaction  of  ail  business;  but  no 
resolution  or  order  shall  be  adopted  unless  three  members  vote  in  its  favor.  (April 
12,   1889,  86  v.  252.) 

§  3705-9.  Sec.  7.  MAY  APPOINT  SUPERINTENDENT  AND  OTHER  EM- 
PLOYES.—  Such  park  commission  shall  adopt  rules  for  the  care,  protection  and  gov- 
ernment of  any  park  under  its  charge;  and  it  may  appoint  or  employ  such  superin- 
tendent and  employes  as  it  may  deem  necessary,  and  fix  their  salaries  or  com- 
pensation, and  may  remove  any  of  such  persons  at  any  time.  It  shall  annually  make 
a  full  report  to  the  county  commissioners  of  such  county,  and  to  the  city  council  of 


456  Private  Corporations  in  Ohio. 

County  Agricultural   Societies — Protection  Against  Criminals,    §§  3705-10-3705-11. 

such  city,  in  respect  to  such  park,  with  a  detailed  account  of  its  receipts  and  expendi- 
tures.     (April  12,  1889,  86  v.  252.) 

§  3705-10.  FRANKLIN  PARK  COMMISSION  MAY  PURCHASE  CERTAIN 
PROPERTY. —  When  real  estate,  which  has  heretofore  been  purchased  by  any  county 
and  improvements  made  thereon  for  the  use  of  a  county  agricultural  society,  and  such 
real  estate  is  situate  within  the  corporate  limits  of  the  city  and  has  been  abandoned 
for  such  use,  and,  by  authority  of  the  act  of  which  said  act  of  April  12,  1889,  was 
supplementary,  the  title  to  such  real  estate  is  vested  in  fee  simple  in  such  county, 
and  the  premises  devoted  to  the  purposes  of  a  public  park  for  the  use  of  the  people  of 
the  county  and  of  such  city,  and  the  supervision  and  the  control  of  the  same  vested 
in  a  park  commission,  consisting  in  part  of  the  residents  of  such  city,  and  in  part  of 
persons  who  reside  in  the  county,  but  not  residents  of  said  city,  and  their  successors 
in  office,  and  the  council  of  such  city  has  deemed  it  advisable  to  enlarge  such  park  by 
the  purchase  of  land  adjoining  it  and  has  provided  for  the  investment  of  money 
therefor  by  ordinance  duly  passed,  and  when  such  council  for  the  purpose  cf  providing 
money  with  which  to  pay  for  such  real  estate  and  for  the  care,  improvement  and 
embellishment  of  such  park,  and  when  a  court  of  record  of  this  state  by  decree  has 
found  any  person  owning  an  estate  in  any  of  the  real  estate  composing  such  park, 
said  park  commission  is  hereby  authorized  to  purchase  such  estate,  the  title  whereof 
shall  vest  in  such  city;  and  the  treasurer  of  said  city  be  and  he  is  hereby  authorized 
out  of  the  moneys  so  borrowed  to  pay  upon  warrants  properly  drawn  therefor,  any 
sum  of  money  not  exceeding  four  thousand  ($4,000)  dollars  for  the  purpose  of  pur- 
chasing such  estate  and  to  pay  claims  arising  by  the  reason  of  the  purchase  of  land 
adjoining  said  park  under  and  by  virtue  of  such  ordinance.  (March  16,  1891,  88 
v.   104.) 

An  Act  to  Authorize  Agricultural  Societies  to  Dispose  of  Real  Estate  to  be 
Used  for  the  Purpose  of  Erecting  and.  Maintaining  Thereon  an  En- 
gine or  Hosehouse. 
Be  it  er acted  by  the  General  Assembly  of  the  State  of  Ohio: 

Section  1.  COUNTY  AGRICULTURAL  SOCIETY  MAY  DONATE  LAND  TO  MU- 
NICIPALITY FOR  CERTAIN  PURPOSES. —  When  a  county  agricultural  society  has 
purchased  real  estate,  as  a  site  whereon  to  hold  fairs,  or  where  the  title  to  the  grounds 
is  vested  in  fee  simple,  in  the  county,  but  the  society  has  the  control  and  manage- 
ment of  the  lands  and  buildings;  and  all  or  a  part  of  said  real  estate  is  situated 
within  the  corporate  limits  of  any  city  or  village,  such  agricultural  society  may, 
with  the  consent  and  approval  of  the  county  commissioners,  give  to  such  city  or 
village,  by  deed,  a  lot  or  strip  of  ground,  not  more  than  fifty  feet  in  width  by  two 
hundred  feet  in  length,  to  be  held  by  such  city  or  village,  in  fee  simple,  for  the  pur- 
pose of  erecting  and  maintaining  thereon  a  fire  engine  or  hose  house,  to  be  used 
in  connection  with  the  fire  department  of  such  city  or  village.  The  lot,  so  donated, 
shall  abut  on  a  public  street  or  highway  and  shall  be  located  in  such  part  of  the  fair 
grounds  as  the  society  may  direct.      (February  4,   1902,  95  v.  6.) 

§  2.  This  act  shall  take  effect  from  and  after  its  passage.  (February  4,  1902, 
95  v.  6.) 

§  3705-11.  Sec.  1.  CORPORATIONS  FOR  THE  APPREHENSION  AND  CON- 
VICTION OF  CRIMINALS,  ETC. —  That  any  number  of  persons,  not  less  than  fif- 
teen, a  majority  of  whom  shall  be  residents  of  the  state  of  Ohio,  are  hereby  authorized 
to  become  incorporated  for  the  purpose  of  apprehending  and  convicting  any  person 
or  persons  accused  of  either  felony  or  misdemeanor.  (April  29,  1902,  95  v.  299; 
March  21,  1887,  84  v.  169.) 


Agrk  i  i.i  ural  <  !orporai  ions.  457 


Company  to  Protect  Against  Criminals,  etc.,  88  3705-1'^  ■',', 


§  3705-12.  Sec.  2.  SEAL;  CONSTITUTION;  OFFICERS;  OATH  OF  OFFICE; 
CERTIFICATE  OF  APPOINTMENT  OR  ELECTION;  POWERS  OF  OFFICERS  AND 
MEMBERS. —  Any  association  so  incorporated  may  make  and  use  a  common  seal 
with  the  name  of  the  corporation  thereon.  A  majority  of  the  members  of  such  asso- 
ciation shall  have  the  power  to  adopt  a  constitution  and  by-laws  for  their  govern- 
ment; and  may  elect  or  appoint  such  officers  as  they  may  deem  proper,  who  ihall  hold 
their  office  during  the  term  provided,  by  the  constitution  and  by-laws  thereof,  and 
who  shall  perform  the  duties  required  of  them  by  said  constitution  and  by-laws,  and 
the  provisions  of  this  act;  and  the  presiding  officer  of  any  such  association  or  cor- 
poration may  administer  the  proper  oaths  of  office  to  any  of  its  officers  or  members, 
and  certify  the  appointment  or  election  thereof  under  the  seal  of  said  corporation. 
The  presiding  officer  may  also  appoint  deputies,  not  exceeding  one  in  each  township, 
in  any  county  or  counties  where  such  corporation  is  located,  who  may  administer  said 
oath  of  office  or  membership,  and  certify  the  appointment  or  election  thereof,  which 
shall  be  valid  when  approved  by  said  presiding  officer  under  the  seal  of  said  corpora- 
tion, and  the  officers  or  members  of  said  association  or  corporation,  upon  the  proper 
certificate  of  the  presiding  officer  thereof,  when  so  elected  or  appointed,  shall  have 
full  power  and  authority,  when  a  felony  has  been  committed,  to  pursue  and  arrest, 
without  warrant,  any  person  or  persons  whom  they  believe  or  have  reasonable  cause 
to  believe  guilty  of  the  offense,  and  arrest  and  detain  such  alleged  criminal  or 
criminals  in  any  county  in  the  state  to  which  they  have  fled,  and  return  such  accused 
person  or  persons  to  any  officer  of  the  county  in  which  the  offense  was  committed, 
and  there  detain  such  accused  person  or  persons  until  a  legal  warrant  can  be  obtained 
for  his  or  their  arrest.  And  any  officer  or  member  of  any  such  association  or  cor- 
poration, may  under  the  certificate  of  authority  aforesaid,  apply  for  and  obtain  a 
warrant  for  the  arrest  of  any  person  or  persons  accused  of  felony  or  misdemeanor, 
which  shall  be  issued  to  said  member  of  any  such  association  or  corporation  by  any 
justice  of  the  peace  or  police  magistrate  of  any  city  or  village  under  the  same  con- 
ditions as  warrants,  are  now  issued  to  constables,  and  under  said  warrant  any  such 
officer  or  member  shall  have  the  same  powers  to  arrest  and  detain  offenders  as  is  now 
vested  in  constable.  (April  29,  1902,  95  v.  299;  April  28,  1890,  87  v.  339;  March 
21,   1887,  84  v.   169.) 

§  3705-13.  Sec.  3.  ASSESSMENTS;  INDEMNITY  FOR  LOSSES;  EXPENDI- 
TURES.—  Any  association  may  make  and  collect  from  its  members  such  assess- 
ments as  may  be  authorized  by  its  constitution  or  by-laws,  and  may  if  so  provided 
in  its  constitution,  indemnify  its  members  for  losses  caused  by  horse  thieves  or  other 
felons,  and  expend  such  moneys  as  may  be  deemed  necessary  in  the  pursuit  and 
arrest,  and  procuring  the  conviction  of  felons.  (April  29,  1902,  95  v.  299;  April 
28,  1890,  87  v.  340;  March  21,   1887,  84  v.   169.) 

§  3705-14.  Sec.  4.  REIMBURSEMENT  OF  EXPENSES  BY  COUNTY.  —  Upon 
the  apprehension  and  conviction  of  any  person  or  persons  charged  with  felony  by  any 
such  associations  or  corporation,  the  commissioners  of  the  county  in  which  the  crime 
was  committed,  may  reimburse  said  association  in  any  sum  not  exceeding  one  hun- 
dred dollars,  for  necessary  expenses,  not  otherwise  provided  for  by  law,  incurred  in 
the  apprehension  and  conviction  of  any  such  criminal;  and  upon  the  apprehen- 
sion and  conviction  by  such  association  of  any  person  or  persons  accused  of  misde- 
meanor, the  commissioners  of  the  county  in  which  the  crime  was  committed  may 
reimburse  said  association  in  any  sum  not  exceeding  seventy-five  dollars  for  necessary 
expenses  incurred,  not  otherwise  provided  for  by  law.  in  the  apprehension  and  con- 
viction of  such  criminals.  (April  29,  1902,  95  v.  300;  April  28,  1890,  87  v.  340; 
March  21,  1887,  84  v.  169.) 


458  Private  Corporations  in  Ohio. 

County  Agricultural  Societies,  §§  3706-3706b. 

§   3706.     SOCIETIES  MAY  SELL,  AND  PURCHASE  OTHER  SITES.  —  When  a 

county  society  desires  to  sell  its  site  for  holding  county  fairs,  for  the  purpose  of  pur- 
chasing another  site,  it  may  sell  or  lease  the  same  in  such  manner  and  on  such  terms 
as  it  may  deem  proper,  and  the  money  arising  from  the  sale  or  lease  shall  be  paid 
by  the  purchaser  to  the  county  treasurer,  who  shall  pay  it  out  only  upon  the  certifi- 
cate of  the  president  and  secretary  of  the  society  that  the  same  is  to  be  used  in  the 
purchase,  lease  or  improvement  of  another  site,  which  site  the  certificate  shall  show 
to  have  been  leased  or  purchased,  and  in  cases  where  the  county  has  paid  any  portion 
of  the  purchase  money  for  the  site  proposed  to  be  sold  or  leased,  the  written  consent 
of  the  county  commissioners  shall  first  be  given  to  such  sale  or  lease.  That  whenever 
the  site  for  holding  county  fairs  belonging  to  or  occupied  by  any  agricultural  society 
organized  under  the  laws  of  this  state,  shall  have  for  any  reason  become  unfit  or 
inefficient  for  the  purpose  for  which  it  is  intended  and  used,  and  the  board  of  directors 
of  such  agricultural  society  shall,  at  a  regular  meeting  thereof,  by  a  vote  of  at  least 
a  majority  of  all  the  members  of  said  board,  upon  a  call  of  the  yeas  and  nays,  pass 
a  resolution  for  the  purpose  of  securing  the  benefits  of  this  act,  declaring  that  such 
site  has  become  unfit  and  inefficient  as  aforesaid,  and  that  it  is  necessary,  for  the 
best  interests  of  such  agricultural  society  and  such  county,  that  such  site  be  sold  or 
leased,  and  a  new  site  purchased  or  leased,  for  holding  county  fairs  in  such  county, 
it  shall  be  lawful  for  such  agricultural  society  to  sell  or  lease  such  unfit  or  inefficient 
site  for  holding  county  fairs,  and  to  purchase  or  lease  a  new  site  as  hereinafter  pro- 
vided. Within  thirty  days  after  the  passage  of  such  resolution  said  board  of  direct- 
ors shall  give  notice  in  writing  to  the  county  commissioners  of  such  county  of  the 
passage  and  adoption  of  said  resolution,  declaring  the  necessity  of  selling  or  leasing 
such  site  and  of  purchasing  or  leasing  a  new  site,  which  notice  shall  contain  or  have 
annexed  thereto  a  certified  copy  of  said  resolution,  signed  by  the  president  and  secre- 
tary of  said  board  of  directors.  (May  10,  1902,  95  v.  503;  March  28,  1859,  56  v.  76, 
§   1;  S.  &  C.  69.) 

§  3706a.  WHEN  COUNTY  COMMISSIONERS  SHALL  COMPLETE  AND  CARRY 
OUT  CONTRACTS  BY  SUCH  SOCIETY.  —  That  whenever  such  agricultural  society 
shall  have  given  notice  to  the  county  commissioners  as  above  provided,  and  shall 
have  selected,  or  secured  options  for  the  purchase  or  lease  of  a  new  site  for  holding 
county  fairs  in  such  county,  the  board  of  directors  of  such  society  shall  immediately 
give  notice  of  all  of  such  facts  to  the  county  commissioners,  which  said  notice  shall, 
in  the  event  such  old  site  is  sold  or  leased  before  the  purchase  or  lease  of  the 
new  site,  state  the  amount  for  which  such  old  site  was  sold  or  leased,  and  shall  also 
state  the  amount  of  money  necessary  to  acquire  by  purchase  or  lease  such  new  site, 
and  the  terms  and  conditions  of  the  purchase  or  lease  thereof,  together  with  a  full 
description  of  the  tracts  or  parcels  of  land  and  improvements  thereon,  included  in 
such  new  site.  After  the  filing  of  the  several  notices  herein  provided  for,  the  county 
commissioners  shall  proceed  to  complete  and  carry  into  effect  any  contract  or  con- 
tracts which  such  agricultural  society  may  have  made  for  the  purchase  or  lease  of 
said  new  site.      (May  10,  1902,  95  v.  504.) 

§  3706b.  PROVISION  FOR  PAYMENT  FOR  SUCH  PURCHASE  OR  LEASE  OF 
LANDS.  —  That  the  payment  for  the  purchase  or  lease  of  the  parcels  or  tracts  of  land 
included  in  such  new  site,  and  the  improvements,  buildings  and  structures  thereon, 
shall  be  made  by  the  county  commissioners  from  any  unappropriated  funds  in  the 
county  treasury  at  the  time  said  payments  are  to  be  made,  and  if  no  such  funds  are 
in  the  county  treasury  at  such  times,  then  the  county  commissioners  are  hereby 
authorized  to  issue  the  bonds  of  the  county  for  such  amounts  as  may  be  necessary 
for  the  purchase  or  lease  of  said  land  and  the  improvements  thereon;  provided,  that 
in  the  event  such  old  site  is  sold  or  leased  before  such  new  site  is  purchased  or  leased, 
said  agricultural  society  shall,  in  making  said  payments,  first  apply  the  moneys  real- 


Agricultural  Corporations.  459 


County  Agricultural  Societies,  etc.,  S8  3706c,  3707. 


ized  from  the  sale  or  lease  of  such  old  site  to  the  purchase  or  lease  of  new  site;  and 
in  the  event  such  old  site  is  sold  or  leased  after  the  purchase  or  lease  of  such  new 
site,  the  amounts  realized  from  such  sale  or  lease  shall  he  placed  to  the  credit  of  the 
sinking  fund  for  the  redemption  of  the  bonds  to  be  issued  as  hereinafter  j 
Such  bonds  shall  bear  interest  at  a  rate  not  to  exceed  three  and  one-half  ('■'  1  '.'.)  p<-r 
cent,  per  annum,  payable  semi-annually,  and  shall  not  be  sold  at  less  than  their  par 
value,  and  shall  be  payable  at  such  place  as  said  county  commissioners  shall  deter- 
mine, not  less  than  ten  years  from  the  date  thereof;  and  to  provide  for  the  payment 
of  said  bonds  and  the  interest  thereon  the  said  county  commissioners  are  hereby 
authorized  to  levy  such  annual  taxes  on  all  the  taxable  property  of  the  county,  as 
may  be  necessary  to  create  and  provide  a  sinking  fund  for  the  redemption  of  such 
bonds  at  maturity  and  the  interest  accruing  thereon.  Said  levy  shall  be  collected 
and  accounted  for  to  the  county  treasurer  of  the  county  in  the  manner  provided  for 
the  collection  of  other  taxes.  Before  issuing  such  bonds,  the  commissioners  shall,  by 
resolution,  submit  to  the  qualified  electors  of  the  county  at  the  next  general  election 
for  county  officers  held  not  less  than  thirty  days  after  receiving  from  such  agricul- 
tural society  the  notice  provided  for  in  section  3706,  the  question  of  issuing  and 
selling  such  bonds,  in  amount  and  denomination  as  may  be  necessary  for  the  purpose 
in  view,  and  shall  cause  a  copy  of  such  resolution  to  be  certified  to  the  deputy  state 
supervisors  of  elections  of  the  county,  and  such  deputy  state  supervisors  of  elections 
shall  place  the  question  of  issuing  and  selling  such  bonds  upon  the  ballot  and  make 
all  other  necessary  arrangement  for  the  submission  of  such  question  to  the  qualified 
electors  of  such  county,  at  the  time  fixed  by  the  resolution.  The  votes  cast  upon  such 
question  shall  be  counted,  canvassed  and  certified  in  the  same  manner,  except  as 
otherwise  provided  by  law,  as  votes  cast  for  county  officers.  Fifteen  days'  notice  of 
such  submission  shall  be  given  by  the  deputy  state  supervisors  of  elections,  by  pub- 
lication once  a  week  for  two  consecutive  weeks  in  two  or  more  newspapers  published 
in  the  county,  stating  the  amount  of  bonds  to  be  issued,  the  purpose  for  which  they 
are  to  be  issued,  and  the  time  and  places  of  holding  such  elections.  Said  question 
shall  be  stated  on  the  ballot  as  follows:  "  For  the  issue  of  county  fair  bonds,  yes;" 
"  For  the  issue  of  county  fair  bonds,  no,"  and  if  the  majority  of  the  voters  voting 
upon  the  question  of  issuing  the  bonds  in  favor  thereof,  then  and  not  otherwise  shall 
such  bonds  be  issued,  and  the  tax  hereinbefore  mentioned  be  levied.  (May  10.  1902, 
95  v.  504.) 

§  3706c.  CONTROL  AND  MANAGEMENT  OF  LANDS  WHERE  TITLE  IS 
VESTED  IN  COUNTY  COMMISSIONERS.  —  That  where  the  title  to  the  grounds  and 
improvements  occupied  by  agricultural  societies  is  vested  in  the  county  commission- 
ers, the  control  and  management  of  such  lands  and  improvements  shall  be  vested  in 
the  board  of  directors  of  such  agricultural  society  so  long  as  the  same  shall  be  occu 
pied  and  used  by  such  society  for  holding  agricultural  fairs,  and  all  moneys  realized 
by  said  agricultural  society  in  the  holding  of  county  fairs  and  derived  from  renting 
or  leasing  said  grounds  and  buildings,  or  portions  thereof,  in  the  conduct  of  said 
county  fairs  or  otherwise,  over  and  above  the  necessary  expenses  thereof,  shall  be 
paid  into  the  county  treasury  of  said  society  to  be  used  as  a  fund  for  keeping  said 
grounds  and  buildings  in  good  order  and  repair,  and  in  making  such  other  improve- 
ments as  may  from  time  to  time  be  deemed  necessary  by  the  directors  of  said  society. 
(May  10,  1902,  95  v.  505.) 

§  3707.  HOW  CONVEYANCES  TO  BE  EXECUTED.  —  Conveyances  of  grounds 
sold  under  the  preceding  section,  which  are  owned  exclusively  by  any  society,  may 
be  executed  by  the  president  of  the  society  as  such  president;  and  grounds  owned 
partly  by  the  society  and  partly  by  the  county  may  be  conveyed  by  deed  executed 
by  the  president  of  the  society,  as  such  president,  and  by  the  county  commissioners. 
(March  28,  1859,  56  v.  76,  §  2;  S.  &  C.  69.) 


460  Private  Corporations  in  Ohio. 


Township    Agricultural   Societies  —  Fairs,    Regulations    as   to,    §§    3708-3712. 


§  3708.  SOCIETY  CAN  NOT  INCUMBER  ITS  GROUNDS.  —  When  the  com- 
missioners of  any  county  have  paid,  or  hereafter  pay,  any  money  out  of  the  county 
treasury  for  the  purchase  of  real  estate  as  a  site  for  any  agricultural  society  whereon 
to  hold  its  fairs,  such  society  shall  not  incumber  such  real  estat3  with  any  debt,  by 
mortgage  or  otherwise,  without  the  consent  of  the  commissioners.  (February  26, 
1875,  72  v.  42,  §   1.) 

§  3709.  INCORPORATION  OF  TOWNSHIP  SOCIETIES.  —When  any  number  of 
natural  persons  of  any  township  form  a  society  for  the  promotion  of  agriculture  in 
such  township,  and  under  their  hands  and  seals  make  a  certificate,  and  acknowledge 
the  same  before  a  justice  of  the  peace,  in  which  shall  be  specified  the  name  of  the 
society,  the  objects  of  its  formation,  and  the  township  in  which  it  shall  be  located, 
and  file  the  same  in  the  office  of  the  secretary  of  state,  such  society  shall  be  deemed 
a  body  corporate,  with  succession,  and  with  power  to  sue  and  be  sued,  defend  and  be 
defended,  and  contract  and  be  contracted  with,  may  make  and  use  a  common  seal, 
and  the  same  alter  at  pleasure,  and  may  purchase,  and  hold  in  fee  simple,  or  rent  or 
lease,  such  real  estate  as  may  be  required  as  a  site  for  holding  fairs,  not  exceeding 
forty  acres,  and  establish  all  necessary  rules  and  regulations  for  the  management 
of  such  fairs  and  the  legitimate  business  of  the  society.  (February  11,  1877,  74  v. 
30,  §  1;  S.  &  S.  5.) 

§  3709a.  AUTHORIZING  TOWNSHIP  SOCIETIES  TO  INCORPORATE  FOR 
DETECTION  OF  HORSE  THIEVES  AND  OTHER  CRIMINALS  AND  FOR  MUTUAL 
PROTECTION  OF  PROPERTY  AGAINST  SUCH.  —When  any  number  of  natural  per- 
sons of  any  township,  form  a  society,  for  the  detection  and  arrest  of  horse  thieves  and 
other  criminals,  and  for  the  mutual  protection  of  the  property  of  its  members,  svch 
society  may  become  a  body  corporate  in  the  manner  prescribed  in  section  thirty-seven 
hundred  and  nine  of  the  Revised  Statutes,  to  which  this  is  supplementary,  with  the 
right  of  succession,  and  the  right  to  make  and  use  a  common  seal,  and  with  power  to 
sue  and  be  sued,  to  contract  and  be  contracted  with,  to  levy  and  collect,  by  suit,  if 
necessary,  such  assessments  not  exceeding  three  dollars  annually  from  each  member, 
as  may  be  required  to  carry  out  the  objects  of  the  society,  and  to  make  for  such  society 
needful  rules  and  regulations  not  in  conflict  with  the  laws  of  this  state.  (February 
10,   1885,  82  v.  63.) 

§  3710.     JUSTICES  OF  THE  PEACE  MAY  APPOINT  SPECIAL  CONSTABLES.— 

A  justice  of  the  peace  may,  on  the  application  of  a  state,  county,  township,  or  an  inde- 
pendent agricultural  society,  or  industrial  association,  appoint  a  suitable  number  of 
special  constables  to  assist  in  keeping  the  peace  during  the  time  when  such  society  is 
holding  its  annual  fair,  and  shall  make  an  entry  in  his  docket  of  the  number  and 
names  of  all  such  persons  so  appointed.     (April  11,  1856,  53  v.  141,  §  1;  S.  &  C.  67.) 

§  3711.  POWERS  OF  SUCH  CONST ABLES.  —  Constables  so  appointed  shall 
have  all  the  power  of  constables  to  suppress  riots,  disturbances,  and  breaches  of  the 
peace;  they  may,  upon  view,  arrest  any  person  guilty  of  a  violation  of  any  of  the 
laws  of  the  state,  and  may  pursue  and  arrest  any  person  fleeing  from  justice  in  any 
part  of  the  state;  and  they  may  apprehend  any  person  in  the  act  of  committing  an 
offense,  and,  upon  reasonable  information,  supported  by  affidavit,  procure  process  for 
the  arrest  of  any  person  charged  with  a  breach  of  the  peace,  and  forthwith  bring  such 
person  before  the  competent  authority,  and  enforce  all  the  laws  for  the  preservation 
of  good  order.     (April  11,  1856,  53  v.  141,  §  2;  S.  &  C.  68.) 

§  3712.  DUTIES  OF  CEBTAIN  OFFICEBS  TO  SUPPRESS  SALE  OF  LIQUOR 
AT  FAIRS.  —  A  judge  of  any  court,  sheriff,  coroner,  justice  of  the  peace  of  the  proper 
county,  a  constable  of  the  proper  township,  or  the  constables  specially  appointed, 
shall,   upon  view   or   information,   without  warrant,    apprehend   any  person   selling 


Agrk  i  i.i  ik  \i.  (  Corporations.  461 


Fairs,   Regulations   as  to  —  Farmers'   Institutes,    5 


intoxicating  liquors  in  violation  of  law  at  or  within  two  miles  of  the  place  where  an 
agricultural   fair   is   being   li2ld,   and   seize   the   booth,   tent,    wagon,  tand, 

vessel,  or  boat  at  or  from  which  such  liquors  are  being  sold,  and  convey  the  sai. 
a  place  of  safe  keeping,  and  take  the  person  so  offending  before  some  office]    having 
competent  jurisdiction,  together  with  an  inventory  of  the  things  so  S'  >  !  the 

officer  before  whom  such  offender  is  brought  shall  proceed  forthwith  to  Inquire  into 
the  truth  of  the  accusation,  and  proceed  as  provided  by  law.      ("April   11.   181 
141,  §  4;  S.  &  C.  68.) 

Sec   §  (i'.itii  providing  for  arrest    for  -ale  of  I  thereto,      Heck   \.  State,  14  Oh   SI   ■>■■•'■    It 
intoxicating  liquor  within  two  miles  of  agri    |  Theis  v.  Mate.  . ,  i  Oh.  St.  . 
cultural  fair,  and  the  following  cases  applicable     Long,   is  Oh.  St.  509  (1891). 

§  3713.  HOW  ARTICLES  SEIZED  TO  BE  DISPOSED  CF.  —  The  articles  so 
seized  shall  be  bound  for  the  payment  of  all  fines  and  costs  assessed  against  the 
accused  in  the  proceeding,  including  the  necessary  expenses  of  seizing  and  detai: 
the  same,  and  shall  remain  in  the  possession  cf  the  officer  who  makes  the  seizure  until 
the  determination  of  the  prosecution,  and  may  be  sold  on  process  issued  therein 
against  the  accused.     (April  11,  1856,  53  v.  141,  £§  5,  6;  S.  &  C.  08.) 

§  3713-1.  Sec.  1.  WHEN  FARMERS'  INSTITUTE  SOCIETY  DEEMED  BODY 
CORPORATE.  —  That  when  twenty  or  more  persons,  residents  of  any  county  in  the 
state,  organize  themselves  into  a  farmers'  institute  society,  for  the  purpose  of  teach- 
ing better  methods  of  farming,  stock  raising,  fruit  culture  and  all  brancnes  of  busi- 
ness connected  with  the  industry  of  agriculture,  and  adopt  a  constitution  and  by-laws 
agreeable  to  rules  and  regulations  furnished  by  the  state  board  of  agriculture;  and 
when  such  society  shall  have  elected  proper  officers  and  performed  such  other  acts  as 
may  be  required  by  the  rules  of  the  state  board  of  agriculture,  such  society  shall  be 
deemed  a  body  corporate.     (April  27,  1896,  92  v.  330.) 

§  3713-2.  Sec.  2.  NUMBER,  TIMES  AND  PLACES  OF  ANNUAL  MEETINGS.— 
Not  to  exceed  four  farmers'  institute  societies  organized  under  the  provisions  of  this 
act,  shall  hold  annual  meetings  under  the  auspices  of  the  state  board  of  agriculture 
in  any  one  county  in  the  state,  and  the  state  board  of  agriculture  shall  have  power 
to  determine  the  number  and  name  the  times  and  places  for  holding  such  institute 
meetings.     (April  27,  1896,  92  v.  330.) 

§  3713-3.  Sec.  3.  COUNTY  PAYMENTS  TO  SOCIETIES  AND  STATE  BOARD 
OF  AGRICULTURE. — When  a  society  organized  under  the  provisions  of  this  act 
shall  have  held  an  annual  farmers'  institute  meeting  in  accordance  with  the  rules  of 
the  state  board  of  agriculture,  the  secretary  of  said  board  shall  issue  certificates,  one 
to  the  president  of  the  farmers'  institute  society  and  one  to  the  president  of  the  state 
board  of  agriculture,  setting  forth  these  facts  and,  on  the  presentation  of  these  certifi- 
cates to  the  county  auditor,  he  shall  each  year  draw  orders  on  the  treasurer  of  the 
county  as  follows:  Based  on  the  last  previous  national  census,  a  sum  equal  to  three 
mills  for  each  inhabitant  of  the  county  in  favor  of  the  president  of  the  state  board  of 
agriculture,  and  a  sum  equal  to  three  mills  for  each  inhabitant  of  the  county  in  favor 
of  the  president  of  the  farmers'  institute  society,  where  but  one  society  is  organized, 
but  in  counties  where  there  are  more  than  one  farmers'  institute  society  organized 
under  the  provisions  of  this  act,  and  holding  meetings  under  the  auspices  and  by 
direction  of  the  state  board  of  agriculture,  the  said  three  mills  for  each  inhabitant 
shall  be  equally  apportioned  among  such  societies,  and  warrants  in  the  proper  amounts 
issued  to  the  respective  presidents,  and  the  treasurer  of  the  county  shall  pay  the  same 
from  the  county  fund;  provided  that  in  no  county  shall  the  total  annual  sum  exceed 
two  hundred  and  fifty  dollars;  and  provided  further,  that  the  payment  to  any  insti- 
tute society  shall  not  exceed  the  expenses,  as  per  detailed  statement,  provided  in  sec- 
tion four  (§  3713-4)  of  this  act.     (April  27.   1896.  92  v.  330.) 


462  Private  Corporations  in  Ohio. 


Farmers'   Institutes  —  Trespassing  on  Fair  Grounds,   §§  3713-4-3713-8. 


§  3713-4.  Sec.  4.  SOCIETY'S  STATEMENT  OF  EXPENSES;  WHAT  SECRE- 
TARY'S CERTIFICATE  TO  INDICATE. —  With  each  certificate  of  the  secretary  of 
the  state  board  of  agriculture  to  the  county  auditor,  which  certificate  shall  indicate  the 
number  of  societies  organized  in  the  county  and  holding  meetings  by  direction  of  the 
state  board  of  agriculture,  and  before  the  auditor  issues  his  order  upon  the  treasurer 
there  shall  be  filed  with  the  auditor  a  detailed  statement  of  the  expenses  of  the  insti- 
tute for  the  current  year,  no  part  of  which  shall  be  for  salaries  of  officers  of  the  insti- 
tute society;  but  this  provision  shall  not  apply  to  the  order  in  favor  of  the  president 
of  the  stats  board  of  agriculture,  which  board  shall  issue  statement  as  required  in 
section  six  (§  3713-6)  of  this  act.     (April  27,  1896,  92  v.  330.) 

§  3713-5.  Sec.  5.  LECTURERS  AT  ANNUAL  MEETINGS.  —  At  the  annual 
farmers'  institute  meetings,  held  under  the  provisions  of  this  act  and  under  the 
auspices  of  the  state  board  of  agriculture,  the  said  board  shall  furnish  lecturers  or 
speakers  whose  compensation  and  expense  shall  be  paid  by  the  board.  (April  27, 
1896,  92  v.  330.) 

§  3713-6.  Sec.  6.  PUBLICATION  AND  DISTRIBUTION  OF  LECTURES  AND 
PAPERS.  —  At  the  close  of  each  season's  institute  work,  the  state  board  of  agricul- 
ture shall  publish  in  pamphlet  or  book  form,  such  lectures  r.nd  papers  delivered  at 
the  several  institute  meetings,  as  may  seem  of  general  interest  and  importance  to  the 
farmers,  stock  breeders  and  horticulturists  of  the  state,  copies  of  which  shall  be  fur- 
nished the  secretary  of  each  institute  society,  and  the  balance  issued  to  be  for  general 
distribution;  the  cost  of  preparing  the  matter  and  the  distribution  of  the  pamphlet  or 
book  to  be  paid  by  the  state  board  of  agriculture.  Said  board  shall  also  publish,  in 
such  pamphlet  or  book,  a  detailed  statement  of  its  receipts  under  the  provisions  of  this 
act  and  the  disbursements  on  account  of  institute  work.      (April  27,  1896,  92  v.  330.) 

§  3713-7.  Sec.  1.  TRESPASS.  —  That  whenever  any  person  or  persons,  corpora- 
tion or  association,  whether  incorporated  or  otherwise,  shall  be  possessed  of,  as  own- 
ers, or  shall  have  the  lawful  custody  of  any  tract  or  parcel  of  land  within  this  state, 
for  the  purpose  of  an  agricultural  or  other  fair  grounds,  or  for  the  purpose  of  meetings 
of  pioneers,  or  for  public  or  private  entertainments  or  other  lawful  assemblages,  or  for 
the  protection  of  trees,  plants  and  shrubs,  or  either  of  them,  or  the  fruits  and  products 
thereof,  or  for  any  one  or  all  of  said  purposes,  it  shall  be  unlawful  for  any  person  or 
persons  to  enter  or  go  upon  said  grounds,  either  through  or  over  any  fence,  or  in  any 
manner,  without  the  consent  and  permission  of  the  owner  or  owners  thereof,  or  other 
person  having  lawful  control  of  the  same,  or  in  violation  of  the  regulations  of  the 
same;  and  in  case  of  the  holding  a  state,  county,  township,  or  independent  fair,  it 
shall  be  unlawful  for  any  person  or  persons  to  injure,  molest,  remove  or  in  any  way 
to  disturb  any  exhibits  or  property  of  any  kind  contrary  to  the  rules  of  the  state, 
county,  township  or  independent  board  or  society,  or  industrial  association,  under 
the  control  and  management  of  which  said  fair  may  be  held.  (April  23,  1902,  95  v. 
241;  April  15,  1889,  86  v.  302;  May  1,  1885,  82  v.  208.) 

§  3713-8.  Sec.  2.  PENALTY.  —  Whoever  shall  willfully,  and  in  violation  of  the 
provisions  of  section  3713-7  of  the  Revised  Statutes  of  Ohio,  enter  or  go  upon  any 
lands  referred  to  in  said  section,  or  shall  injure  or  destroy  any  tree,  plant,  shrub  or 
other  property  thereon,  or  shall  take  or  carry  away  any  fruit,  nut  or  other  thing  of 
value,  or  shall  willfully  damage  or  destroy  any  fence  enclosing  said  lands,  or  shall 
injure,  molest,  remove  or  in  any  way  disturb  any  exhibit  or  property  of  any  kind 
contrary  to  rules,  shall  on  conviction  thereof  be  fined  in  any  sum  not  exceeding  three 
hundred  dollars  nor  less  than  five  dollars,  or  be  imprisoned  in  the  jail  of  the  proper 
county  or  in  any  city,  town,  or  village  prison  or  lockup  (when  the  offense  shall  have 
been  committed  within   the  corporate  limits  thereof)   for  any  period  not  exceeding 


Agricultural  Corporations.  463 


Fair  Grounds,  Trespassing  on;   Appropriations  for,   ||   3713-9  3713-11. 


three  months,  and  until  said  fine  and  costs  are  paid,  or  both  fine  and  Imp]  isonment, 
at  the  discretion  of  the  court;  and  shall  moreover  be  liable,  in  a  civil  action  to  the 
party  damaged  thereby,  in  double  the  value  of  the  property  taken,  carried  away  or 
destroyed,  and  in  double  the  amount  of  the  damage  thereto,  to  be  recovered  before  a 
justice  of  the  peace  or  other  court  of  competent  jurisdiction.  (April  2-i,  1902,  95  v. 
242;  April  15,  1889,  86  v.  302;  May  1,   1885,  82  v.  208.) 

§  3713-9.  Sec.  3.  PROSECUTIONS  HEREUNDER.— Prosecutions  under  and  by 
virtue  of  this  act,  may  be  by  indictment  in  the  court  of  common  pleas  in  the  county 
where  the  offense  shall  have  been  committed,  or  before  a  justice  of  the  peace  of  such 
county,  or  before  the  mayor  of  a  city,  town,  or  village,  when  the  offense  shall  have 
been  committed  within  the  corporate  limits  of  the  same.     (May  1,  1885,  82  v.  208.) 

§  3713-10.  Sec.  1.  PROCEEDINGS  EOR  APPROPRIATION  OF  LANDS  FOR 
ENLARGEMENT  01?  FAIR  GROUNDS.  —When  it  shall  be  deemed  necessary  by  the 
board  of  directors  of  any  county  agricultural  society  to  enlarge  the  fair  grounds 
under  the  control  of  such  society,  and  the  owner  or  owners  of  the  proposed  addition 
to  said  grounds  and  the  said  board  of  directors  are  unable  from  any  cause  to  agree 
upon  the  sale  and  purchase  of  said  additional  grounds,  the  board  shall  make  an  accu- 
rate plat  and  description  of  the  land  which  it  desires  for  said  purpose  and  file  the 
same  with  the  probate  judge  of  the  proper  county;  and  thereupon  the  same  proceed- 
ings of  appropriation  shall  be  had  which  are  provided  for  the  appropriation  of  private 
property  by  municipal  corporations,  said  board  to  act  for  such  society  therein  as  the 
council  would  for  the  municipal  corporation.  (March  2,  1892,  89  v.  52;  April  8, 
1880,  77  v.   128.) 

§  3713-11.  Sec.  2.  BOARD  OF  DIRECTORS  TO  PROSECUTE  PROCEEDINGS. 

That  if,  under  any  existing  law,  it  is  made  the  duty  of  the  county  commissioners 

to  purchase  any  such  additional  grounds  for  the  use  of  any  such  society,  said  board 
of  directors  shall  prosecute  the  said  proceedings  of  appropriation  to  their  final  con- 
clusion, except  so  far  as  relates  to  payment,  or  any  part  of  the  purchase  money,  before 
said  commissioners  shall  be  called  upon  to  act  in  the  matter.  All  such  payments  or 
deposits,  not  exceeding  fifteen  thousand  dollars  ($15,000)  in  amount,  shall  be  made 
by  said  commissioners  when  required  so  to  do  by  said  board  of  directors,  or  by  the 
court,  and  no  delay  on  the  part  of  said  commissioners  shall  defeat  or  prevent  the  pur- 
chase or  appropriation  aforesaid.     (April  8,  1880,  77  v.   128.) 


PART    XVII. 

HUMANE   SOCIETIES. 

§3714.  "Ohio  Humane  Society;  '  powers,  etc.;  representatives;  the  objects  of:  power  to 
acquire  property;  board  for  management  of  bequests,  etc.;  officers  and  rules; 
agents;  powers  of  agents;  branch  societies;  societies  now  organized  may  become 
branches. 

§  3715.         Other  societies  authorized. 

§  3716.         How  incorporated. 

§  3717.         May  elect  officers,  and  make  regulations. 

§  3718.         Societies  to  prevent  cruelty   to  animals  may  appoint  agents   to  enforce  law. 

§  3718a.  In  prosecutions  for  adulteration  of  food,  etc.;  for  cruelty  to  animals;  judicial  pro- 
ceedings in  such  cases  before  justices;  costs,  how  paid;  as  to  attorney. 

§  3719.         Magistrate  may  authorize  certain  inspections. 

§  3719a.       Duties  of  police  officer;  penalty. 

§  3720.         Police  powers  of  officers  2nd  agents. 

§  3721.         Interpretation  of  certain  words.  i 

§  3722.         Members  may  require  police  officer  to  act. 

§  3723.         A  person  guilty  is  liable  in  damages. 

§  3724.         Conviction  of  agent  no  bar  to  action  against  principal. 

§  3725.         Any  person  may  protect  an  animal  from  neglect. 

5  3725a.       Animal  may  be  ordered  killed. 

§  3725-1.     Removal  of  child  from  possession  of  parent  by  officer  of  humane  society.     Notice. 

§  3725-2.  Order  of  probate  court  making  general  agent  of  society  guardian  of  child.  Guardian 
may  provide  home  for  child. 

§  3714.  "OHIO  HUMANE  SOCIETY"  POWERS,  ETC.,  REPRESENTATIVES; 
THE  OBJECTS  OF;  POWER  TO  ACQUIRE  PROPERTY;  BOARD  FOR  MANAGE- 
MENT  OF  BEQUESTS,  ETC.;  OFFICERS  AND  RUEES;  AGENTS;  POWERS  OF 
AGENTS;  BRANCH  SOCIETIES;  SOCIETIES  NOW  ORGANIZED  MAY  BECOME 
BRANCHES.  —  The  Ohio  state  society  for  the  prevention  of  cruelty  to  animals,  here- 
tofore incorporated,  shall  be  and  remain  a  body  corporate,  under  the  name  of  "  the 
Ohio  humane  society  "  with  all  the  powers,  privileges,  immunities,  and  duties  here- 
tofore possessed  by  said  Ohio  state  society  for  prevention  of  cruelty  to  animals,  here- 
inafter specified,  as  to  county  associations,  and  may  appoint  any  person,  in  any 
county  in  this  state  where  there  is  no  such  active  association,  to  represent  the  state 
society,  and  to  receive  and  account  for  all  funds  coming  to  the  society,  from  fines  or 
otherwise.  The  objects  of  said  society  and  all  societies  heretofore,  or  hereafter  organ- 
ized under  sections  three  thousand  seven  hundred  and  fifteen  and  three  thousand 
seven  hundred  and  sixteen  of  the  Revised  Statutes  shall  be  the  inculcation  of  humane 
principles,  and  to  secure  the  enforcement  of  laws  for  the  prevention  of  cruelty,  espe- 
cially to  children  and  animals,  to  promote  which  objects  the  said  societies  may 
respectively  acquire  property,  real  and  personal,  by  purchase  or  gift.  All  property 
acquired  by  gift,  devise,  or  bequest,  for  special  purposes  shall  be  vested  in  a  board  of 
trustees  consisting  of  three  members  elected  by  the  society,  which  board  shall  manage 
said  property,  and  apply  the  same  in  accordance  with  the  terms  of  the  gift,  devise,  or 
bequest,  with  power  to  sell  the  same  and  re-invest  the  proceeds.  Said  society  may 
elect  such  officers,  and  make  such  rules  and  regulations  and  by-laws  as  may  be 
deemed  necessary  or  expedient  by  their  members  for  their  own  government  and  the 
proper  management  of  their  affairs.     Said  society  may  appoint  agents  in  any  county 

[464] 


1 1  r.MAxi-:  So.  ii.  i  M  -  465 


Local  Societies,   Incorporation,   etc.,   of,    §§   3715  3718. 


of  this  state,  where  no  active  society  exists  under  sections  three  thousand  seven  hun- 
dred and  fifteen  and  three  thousand  seven  hundred  and  sixteen  of  the  Revised  Stat- 
utes to  represent  the  society,  and  receive  and  account  for  all  funds  coming  to  the 
society  from  fines  or  otherwise,  and  may  also  appoint  agents  at  large  to  prosecute  the 
work  of  said  society  throughout  the  state.  The  agents  of  said  society  and  ot  ,-.11 
societies  heretofore  or  hereafter  organized  under  sections  three  thousai.  hun- 

dred and  fifteen  and  three  thousand  seven  hundred  and  sixteen  of  the  Revised  Stat- 
utes whose  appointment  has  been  approved  as  hereinafter  provided,  shall  have  power 
to  arrest  any  person  found  violating  any  law  for  the  protection  of  persons  or  animals, 
or  the  prevention  of  cruelty  thereto,  and  upon  making  such  arrest  shall  forth 
convey  the  person  arrested  before  some  court  or  magistrate  having  jurisdiction  of 
the  offense,  and  there  make  complaint  against  them,  but  said  agents  shall  not  be 
authorized  to  make  such  arrests  within  any  municipal  corporation  unless  their  ap- 
pointment has  been  approved  by  the  mayor  thereof,  nor  within  any  county  beyond 
the  limits  of  a  municipal  corporation,  unless  their  appointment  has  been  approved  by 
the  probate  judge  of  said  county,  and  the  mayor  or  probate  judge  shall  keep  a  record 
of  all  such  appointments.  Branches  of  the-  society  consisting  of  not  less  than  ten 
members  may  be  organized  in  any  part  of  the  state  to  prosecute  the  work  of  the 
societies  in  their  several  localities,  under  rules  and  regulations  prescribed  by  the 
society.  Societies  for  the  prevention  of  acts  of  cruelty  to  animals  organized  in  any 
county  under  section  three  thousand  seven  hundred  and  fifteen  may  become  branches 
of  said  society  by  resolution  adopted  at  a  meeting  thereof  called  for  that  purpose,  a 
copy  of  which  resolution  shall  be  forwarded  to  the  secretary  of  state.  (March  21. 
1887,  84  v.  207;  R.  S.   1880;  March  29,   1875,  72  v.   129,   g  21.) 

§  3715.  OTHER  SOCIETIES  AUTHORIZED.  —  Societies  for  the  prevention  of 
acts  of  cruelty  to  animals  may  be  organized  in  any  county,  by  the  association  of  not 
less  than  seven  persons,  and  the  members  thereof  shall,  at  a  meeting  called  for  the 
purpose,  elect  not  less  than  three  of  their  members  directors,  who  shall  continue  in 
office  until  their  successors  are  duly  chosen.     (March  29,  1875,  72  v.   129.  |   12.) 

§  3716.  HOW  INCORPORATED. —The  secretary  or  clerk  of  the  meeting  shall 
make  a  true  record  of  the  proceedings  thereat,  which  he  shall  certify,  and  forward  to 
the  secretary  of  state,  who  shall  record  the  same;  the  record  shall  contain  the  name 
by  which  such  association  shall  have  determined  to  be  known,  and  from  and  after  the 
filing  of  the  same  the  directors  and  associates,  and  their  successors,  shall  be  invested 
"with  the  powers,  privileges,  and  immunities  incident  to  incorporated  companies;  and 
a  copy  of  the  record,  duly  certified  by  the  secretary  of  state,  shall  be  deemed  and 
taken,  in  all  courts  and  places  in  this  state,  as  evidence  that  such  association  is  a 
duly  organized  and  incorporated  body.      (March  29,  1875,  72  v.   129,  8   13.) 

G  3717.  MAY  ELECT  OEFICERS,  AND  MAKE  REGULATIONS.  —  Such  associa- 
tions may  elect  such  officers,  and  make  such  rules,  regulations,  and  by-laws,  as  may 
be  deemed  necessary  or  expedient  by  their  members  for  their  own  government,  and 
the  proper  management  of  their  affairs.     (March  29,  1875,  72  v.  129,  §  15.) 

§  3718.  SOCIETIES  TO  PREVENT  CRUELTY  TO  ANIMALS  MAY  APPOINT 
AGENTS  TO  ENFORCE  LAW.  —  Such  associations  may  appoint  agents  for  the  pur- 
pose of  prosecuting  any  person  guilty  of  any  act  of  cruelty  to  persons  or  animal3 
within  this  state,  who  shall  have  power  to  arrest  any  person  found  violating  any  of 
the  provisions  of  this  chapter,  or  any  other  law  for  the  purpose  of  protecting  persons 
or  animals,  or  preventing  any  act  of  cruelty  thereto;  and,  upon  making  such  arrest, 
such  agent  shall  convey  the  person  so  arrested  before  some  court  or  magistrate  having 
jurisdiction  of  the  offense,  within  the  municipal  corporation  or  county  wherein  the 
offense  was  committed,  and  there  forthwith  make  complaint,  on  oath  or  affirmation, 

LAW   GOV.    PRIV.    COR. —  30. 


466  Private  Corporations  in  Ohio. 

Humane   Societies,   Suits     by,   etc.,    §   3718a. 

of  the  offense;  but  all  appointments  by  such  associations  under  this  section  must 
have  the  approval  of  the  mayor  of  the  city  or  village  in  which  the  association  exists, 
and  if  it  exists  outside  of  any  city  or  village  the  appointment  must  be  approved  by 
the  probate  judge  of  the  county;  and  the  mayor  or  probate  judge  shall  keep  a  record 
of  all  such  appointments.  (April  14,  1884,  81  v.  181;  R.  S.  1880;  March  29, 
1875,  72  v.  129,  §  6  [§  16].) 

§  3718a.  JURISDICTION  OF  JUSTICES,  POLICE  JUDGES  AND  MAYORS  IN 
PROSECUTIONS  FOR  ADULTERATION  OF  FOOD,  ETC.,  AND  FOR  CRUELTY  TO 
ANIMALS  OR  CHILDREN.  —  Any  justice  of  the  peace,  police  judge,  or  mayor  of  any 
city  or  village,  shall  each  have  jurisdiction  within  his  county,  in  all  cases  of  viola- 
tion of  the  laws  to  prevent  the  adulteration  of  food  and  drink,  the  adulteration  or 
deception  in  the  sale  of  dairy  products,  or  any  other  foods,  and  drugs  and  medicines, 
and  any  violation  of  the  law  for  the  prevention  of  cruelty  to  animals  or  children,  or 
under  section  3140-2,  4364-24,  4364-25,  6984,  6984a  of  the  Revised  Statutes  of  Ohio. 

JUDICIAL  PROCEEDINGS  IN  SUCH  CASES  BEFORE  JUSTICES.  —  In  any 
such  prosecution  where  imprisonment  may  be  a  part  of  the  punishment,  if  a  trial  by 
jury  be  not  waived,  the  said  justice  of  the  peace  shall,  not  less  than  three  nor  more 
than  five  days  before  the  time  fixed  for  trial,  certify  to  the  clerk  of  the  court  of 
common  pleas  of  his  county  that  such  prosecution  is  pending  before  him.  Thereupon 
said  clerk  shall  proceed  to  draw,  in  the  presence  of  representatives  of  both  parties, 
from  the  jury  wheel  or  box  containing  the  names  of  persons  selected  to  serve  as  petit 
jurors  in  the  court  of  common  plea?  in  said  county,  twenty  ballots  or  names,  which 
shall  be  drawn  and  counted  in  the  same  manner  as  for  jurors  in  said  court  of  common 
pleas.  Said  clerk  shall  forthwith  certify  the  names  so  drawn  to  said  justice  of  the 
peace,  who,  upon  receipt  thereof,  shall  issue  to  any  constable  of  the  county  a  venire 
containing  such  names  to  serve  as  jurors  to  try  such  case  and  make  due  return  thereof. 
The  jurors  shall  be  subject  to  the  same  challenges  as  jurors  are  subject  to  in  criminal 
cases,  except  capital  cases,  in  the  court  of  common  pleas.  If  the  venire  of  twenty 
names  be  exhausted  without  obtaining  the  required  number  to  fill  the  panel,  the  jus- 
tice shall  fill  the  panel  with  talesmen  in  the  manner  provided  for  criminal  cases  in 
said  court  of  common  pleas. 

COSTS.  —  In  all  cases  prosecuted  under  the  provisions  of  this  act,  no  costs  shall 
be  required  to  be  advanced  or  be  secured  by  any  person  or  persons  authorized  under 
the  law  to  prosecute  such  cases;  and  if  the  defendant  be  acquitted  or  discharged  from, 
custody,  by  nolle  or  otherwise,  or  if  he  be  convicted  and  committed  in  default  of  pay- 
ing fine  and  costs,  all  costs  of  such  case  shall  be  certified  by  said  justice  of  the  peace 
under  oath  to  the  county  auditor,  who,  after  correcting  any  errors  in  the  same,  shall 
issue  a  warrant  on  the  county  treasury,  in  favor  of  the  person  or  persons  to  whom, 
such  costs  and  fees  shall  be  paid. 

ATTORNEY  IN  PROSECUTING  FOR  CRUELTY  TO  ANIMALS  OR  CHILDREN. 

—  And  in  cases  brought  for  any  violation  of  law  for  the  prevention  of  cruelty  to  ani- 
mals or  children,  or  under  section  3140-2,  6984,  6984a  or  (7017-3)  Revised  Statutes 
of  Ohio,  any  humane  society  or  their  agents  may  employ  an  attorney  to  prosecute  the 
same,  who  shall  be  paid  for  his  services  out  of  the  county  treasury  in  such  sum  as 
any  judge  of  the  court  of  common  pleas  or  probate  judge,  within  said  county,  or  the 
county  commissioners,  may  approve  as  just  and  reasonable. 

JURISDICTION  AND  POWER  OF  CONSTABLE  IN  SUCH  CASES;  FEES.  —  In 
pursuing  or  arresting  any  defendant  and  in  subpoenaing  the  witnesses,  the  jurisdic- 
tion and  powers  of  the  constable  or  other  court  officer  acting  in  such  capacity,  in  all 
such  cases,  shall  be  the  same  as  that  of  the  sheriff  of  the  county  in  criminal  cases 
in  the  common  pleas  court,  and  he  shall  receive  the  same  fees  therefor  as  are  allowed 
said  sheriff. 


1 1  imam.  Societii   .  467 


Police  Powers,   etc.,    §S  3719,  3719a. 


FEES  OF  JURORS  AND  WITNESSES.  —  Jurors  in  nil  such  cases  and  witnesses 
|  subpoenaed  in  all  such  cases  shall  be  entitled  to  like  mileage  and  fees,  as  are  allowed 
J  in  criminal  cases  in  the  court  of  common  pleas,  and  in  all  other  respects,   in   10  ft  r 
*as  the  same  may  be  applicable,  the  procedure  provided  for  in  criminal  cases  in 
|common  pleas  court  not  otherwise  inconsistent  herewith,  shall  be  followed. 
•         AFFIDAVIT;  WHAT  TO  CONTAIN.  —  And  provided  further,  that  ,  any 

such  laws,  after  the  first  offense,  a  different  punishment  is  provided  for  subsequent 
offenses,  the  information  or  affidavit,  in  order  to  avail  the  state  of  the  benefit  of  such 
additional  punishment,  shall  so  charge  that  it  is  the  second  or  subsequent  offense,  and 
unless  such  special  charge  is  so  made,  the  punishment  shall  in  all  cases  be  as  of  the 
first  offense.  All  costs  and  moneys  which  are  to  be  paid  by  the  county  treasurer 
as  herein  provided,  shall  be  paid  out  of  the  general  revenue  fund  of  snid  county. 

NEW  TRIAL.  —  And  in  any  case  prosecuted  under  the  provisions  of  this  section, 
a  new  trial,  after  a  verdict  of  conviction,  may  be  granted,  for  any  of  the  reasons 
enumerated  in  section  seventy-three  hundred  and  fifty  of  the  Revised  Statutes,  upon 
the  written  application  of  the  defendant,  filed  within  three  days  after  the  rendition 
of  the  verdict;  provided  that  the  causes  enumerated  in  subdivision  two,  three  and  five 
of  said  section  must  be  sustained  by  affidavits  or  other  evidence  showing  their  truth 
and  may  be  controverted  by  like  evidence.  (May  10,  1902,  95  v.  517;  April  3,  1900, 
94  v.  92;  May  21,  1894,  91  v.  412;  April  27,  1893,  90  v.  335;  April  31,  1888,  85  v. 
144;.  April  14,  1884,  81  v.  181.) 

Jury  need  not  be  waived  in  writing.  Jurisdiction  in  coloring  oleomargarine. 

It  is  not  necessary  that  the  accused  should  Justices    have    jurisdiction    in    prosecutions 

waive  a  trial  by  jury  in  writing  to  give  the  for  the   introduction   <>t'  coloring   matter  into 

magistrate    jurisdiction    to    proceed    to    final  oleomargarine. —  State    v.    Ruedy,    57    Oh.    Bt. 

judgment     without    a     jurv. —  Martindale     v.  224   (1897). 
State,  2  C.  C.  2  (1896);  s.  c,  1  C.  D.  328. 


Section  7147,   R.    S.,   does   not   apply  to 
prosecutions   under   this    statute. 

Martindale  v.  State,  2  C.  C.  2  i  1806)  ;  s.  c., 
1   C.   D.   328. 

Sections  3718a  and  7147,  R.  S.,  are  not 
in  pari  materia. 

Martindale  v.  State,  2  C.  C.  2   (1896);  9.  c, 
1   C.   D.   328. 


Prosecuting    attorney    may     file     excep- 
tions. 

A  decision  of  the  common  pleas  court  n 
mg  a  sentence  by  a  justice  of  the  peace  may 
be  the  subject  of  an  except  inn  by   the   prose- 
cuting attorney   under  section    7305,    R    S  — 
state  v.   Ruedy,  57  Oh.  St.  224   I  IS 

Cited,  State  ex  rel.   v.   Adkins,   18  C.  I 
21   (1899)  :   9.  c  9  C.   I).  373. 

See  Marvin  v.  Ohio,  5  X.   P.  209   I  L897 


§  3719.  MAGISTRATES  MAY  AUTHORIZE  CERTAIN  INSPECTIONS.  —  When 
complaint  is  made,  on-  oath  or  affirmation,  to  a  magistrate  or  court  authorized  to  issue 
warrants  in  criminal  cases,  that  the  complainant  believes  that  any  of  the  provisions 
of  law  relating  to  or  affecting  animals  are  being  or  are  about  to  be  violated  in  any 
particular  building  or  place,  such  magistrate  or  court  shall  issue  and  deliver  immedi- 
ately, a  warrant  directed  to  any  sheriff,  constable,  police  officer,  or  agent  of  such 
association,  authorizing  him  to  enter  and  search  such  building  or  place,  and  to  arrest 
any  person  there  present  violating,  or  attempting  to  violate,  any  such  law,  and  to 
bring  such  person  before  some  court  or  magistrate  of  competent  jurisdiction  within 
the  city,  village,  or  county  within  which  such  offense  has  been  committed,  to  be  dealt 
with  according  to  law,  and  such  attempt  shall  be  held  to  be  a  violation  of  such  law, 
and  shall  subject  the  person  charged  therewith,  if  found  guilty,  to  the  penalties  pro- 
vided therein.     (March  29,  1875,  72  v.   129,  §   17.) 

§  3719a.  DUTIES  OF  POLICE  OFFICER;  PENALTY.  —  When  a  sh»rifi.  con- 
stable, marshal,  police  officer,  or  any  agent  for  any  duly  incorporated  society  for  the 
prevention  of  cruelty  to  animals,  has  reason  to  believe  that  any  person  within  his 
jurisdiction  is  about  to  violate  the  provisions  of  section  sixty-nine  hundred  and  fifty- 
two,  of  the  Revised  Statutes,  he  shall  forthwith  arrest  such  person,  and  take  him 


468  Private  Corporations  in  Ohio. 

Police   Powers;   Prosecution,    etc.,    §§   3720-3724. 

before  a  magistrate  named  in  section  seventy-one  hundred  and  six;  upon  the  proper 
affidavit  being  filed,  such  officer  shall  hear  the  witnesses  produced,  on  oath,  and  if  he 
find  the  complaint  true,  order  the  accused  to  enter  into  a  recognizance,  with  sufficient 
sureties,  in  a  sum  not  less  than  ore  hundred  dollars  nor  more  than  five  hundred  dol- 
lars, that  he  will  not  violate  the  provisions  of  said  section  sixty-nine  hundred  and 
fifty-two,  within  one  year  thereafter,  within  this  state,  and  in  default  of  such  recog- 
nizance the  officer  shall  commit  the  accused  to  jail,  there  to  remain  until  such  order  is 
complied  with,  or  he  is  otherwise  discharged  by  due  course  of  law,  or  until  he  shall 
make  and  subscribe  an  oath,  in  the  presence  of  two  witnesses,  that  he  will  not  violate 
the  provisions  of  said  section  six  thousand  nine  hundred  and  fifty-two  of  the  Revised 
Statutes  of  Ohio,  nor  aid  or  abet  in  so  doing  within  said  year.  Upon  conviction  of 
such  person  for  a  subsequent  violation  of  the  provisions  of  said  section  within  said 
year,  he  shall  be  fined  not  less  than  twenty-five  dollars  ($25)  nor  more  than  five  hun- 
dred dollars  ($500),  or  imprisoned  not  less  than  thirty  days  nor  more  than  ninety 
days,  cr  both,  in  the  discretion  of  the  court.     (April  14,  1884,  81  v.  181,  182.) 

§  3720.  POLICE  POWERS  OF  OFFICERS  AND  AGENTS.—  An  officer,  agent,  or 
member  of  any  such  association  may  interfere  to  prevent  the  perpetration  of  any  act 
of  cruelty  to  animals  in  his  presence,  and  may  use  such  force  as  may  be  necessary  to 
prevent  the  same,  and  to  that  end  may  summon  to  his  aid  any  bystanders.  (March 
29,  1875,  72  v.  129,  §  18.) 

§  3721.  INTERPRETATION  OF  CERTAIN  WORDS.— In  this  chapter,  and  jn 
every  law  of  the  state  relating  to  or  in  any  manner  affecting  animals,  the  word 
"  animal  "  shall  be  held  to  include  every  living  dumb  creature;  the  words  "  torture," 
*;  torment,"  and  "  cruelty,"  shall  be  held  to  include  every  act,  omission,  or  neglect 
whereby  unnecessary  or  unjustifiable  pain  or  suffering  is  caused,  permitted,  or  allowed 
to  continue,  when  there  is  a  reasonable  remedy  or  relief;  and  the  words  "  owner  " 
and  "  person  "  shall  be  held  to  include  corporations;  and  the  knowledge  and  acts  of 
agents  rnd  employees  of  corporations,  in  regard  to  animals  transported,  owned, 
employed  by,  or  in  the  custody  of  a  corporation,  shall  be  held  to  be  the  act  of  such 

corporation.     (March  29,    1875,   72  v.    129,   §    19.) 

i 
I 

§  3722.  MEMBER  MAY  REQUIRE  POLICE  OFFICER  TO  ACT.  —  A  member  of 
any  such  association  may  require  the  sheriff  of  any  county,  the  constable  of  any  town- 
ship, the  marshal  or  policeman  of  any  city  or  village,  or  the  agent  of  any  such  asso- 
ciation, to  arrest  any  person  found  violating  the  laws  in  relation  to  cruelty  to  persons 
or  animals,  and  to  take  possession  of  any  animal  cruelly  treated,  in  their  respective 
counties,  cities  or  villages,  and  deliver  the  same  to  the  proper  officers  of  such  associa- 
tions; and  for  such  service,  and  for  all  services  rendered  in  carrying  out  the  provi- 
sions of  this  chapter,  such  officers,  and  the  officers  and  agents  of  the  association,  shall 
be  allowed  and  paid  such  fees  as  they  are  allowed  for  like  services  in  other  cases, 
which  shall  be  charged  as  costs,  and  reimbursed  to  the  association  by  the  person  con- 
victed.    (April  14,  1884,  81  v.  181,  183;  R.  S.  1880;  March  29,  1875,  72  v.  129,  §  20.) 

§  3723.  A  PERSON  GUILTY  IS  LIABLE  IN  DAMAGES.  —  A  person  guilty  of 
cruelty  to  an  animal,  the  property  of  another,  shall  be  liable  to  the  owner  thereof  in 
damages,  in  addition  to  the  penalties  prescribed  by  law.  (March  29,  1875,  72  v. 
129,  §   11.) 

§  3724.  CONVICTION  OF  AGENT  NO  BAR  TO  ACTION  AGAINST  PRINCI- 
PAL. —  The  conviction  of  an  agent  or  employe  shall  not  bar  an  action  for  cruelty  to 
animals  against  an  employer  for  allowing  a  state  of  facts  to  exist  which  will  induce 
cruelty  to  animals  on  the  part  of  such  agent  or  employer.  (March  29,  1875,  72  v. 
129,  §  9.) 


Hi  m  •■.  n    So(  hi  ii--.  469 


Protection,  etc.,  of  Animals  and  Children,  |  i5-2. 


§  3725.     ANY    PERSON    MAY    PROTECT    AN    ANIMAL    FROM    NEGLECT.  — 
Whenever  it  may  be  necessary,  in  order  to  protect  any  animal  from  neglect,  any 
son  may  take  possession  of  the  same;    and  whenever  an  animal  la  Impounds 
or  confined,  and  continues  without  necessary  food,  water,  or  proper  attenl  more 

than  fifteen  successive  hours,  any  person  may,   from  time 

may  be  necessary,  enter  into   and  upon  any   place  in    which   such   animal    I 
pounded,  yarded,  or  confined,  and  supply  it  with  necessary  food  or  water  ai 
tion,   so  long  as  it  there  remains,   or  may,  if  necessary  or  convenient, 
animal,  and  shall  not  be  liable  to  any  action  for  such  entry;    in  all  case:  er  or 

custodian  of  such  animal,  if  known,  shall  be  immediately  notified  of  such  :•. 
the  person  taking-  possession  of  such  animal;    if  the  owner  or  custodian  be  unkn 
and  cannot  be  ascertained  with  reasonable  effort,  such  animal  shall  be  held  to  be  an 
estray,  and  shall  be  dealt  with  as  such;    the  necessary  expense  for  food  and  attention 
given  to  any  animal  under  the  provisions  of  this   section,   may   be  collected   o; 
owner  of  such  animal,  and  the  animal  shall  not  be  exempt  from  levy  and  sale  upon 
execution  issued  upon  a  judgment  therefor.  '  (April   14,   1884,  81   v.   181,  183;  R.  S. 
1880;   March   29,    1875,    72   v.    129,    §   3.) 

§  3725a.  ANIMAL  MAY  BE  ORDERED  KILLED. —Any  sheriff,  constable, 
marshal,  policeman,  or  agent,  of  any  society  for  the  prevention  of  cruelty  to  animals, 
may  kill,  or  cause  to  be  killed  any  animal  found  neglected  or  abandoned,  and  which 
in  the  opinion  of  three  reputable  citizens,  is  injured  or  diseased,  past  recovery  or  by 
fge  has  become  useless.     (April  14,  1884,  81  v.   181,  183.) 

Section   unconstitutional.  Ordinance  providing  for  sale,  unconsti- 

This    section    is    unconstitutional,    since    it        tutional. 
provides  for  the  taking  of  property  withoul         A  city  ordinance  providing  for  tl 
due   process   of   law. —  Brill    v.   Ohio   Humane     dogs  found  running  at   large  witni 
Society,    4  C.   C.   358    (1890) ;  s.  c,  2  C.  D.  594.     check,  and  which  does  qo1   give  due  aoti 

such     -ale.    i-     unconstitutional. —  Archer    v. 
-  hi.  8  C.  C.  12  I  i\  i).  416. 

§  3725-1.  Sec.  1.  REMOVAL  OF  CHILD  FROM  POSSESSION  OF  PARENT  BY 
OFFICER  OF  HUMANE  SOCIETY.  —  Whenever  any  officer  or  agent  of  a  society  in 
this  state,  organized  under  title  2,  chapter  13,  of  the  Revised  Statutes,  shall  deem  it 
for  the  best  interest  of  any  child,  either  by  reason  of  cruelty  inflicted  upon  said  child 
or  by  reason  of  the  surroundings  of  the  child,  that  said  child  be  removed  from  the  pos- 
session and  control  of  the  parents  or  other  person  or  persons  having  charge  thereof, 
said  officer  or  agent  may  take  possession  of  said  child  summarily; 

NOTICE. —  and  shall  cause  a  notice  to  be  personally  served  upon  the  person  hav- 
ing control  or  possession  of  said  child,  and  upon  the  parent  or  parents  of  said  child,  if 
within  the  state,  that  the  said  society  will  apply  to  the  probate  court  of  the  county 
in  which  said  society  is  situated,  at  a  time  and  place  named  in  such  notice,  for  an 
order  as  hereinafter  set  forth.     (April  25,  1898,  93  v.  296.) 

§  3725-2.  Sec.  2.  ORDER  OF  PROBATE  COURT  MAKING  GENERAL  AGENT 
OF  SOCIETY  GUARDIAN  OF  CHILD. —At  the  time  set  forth  in  said  notice,  if  it 
shall  appear  to  the  satisfaction  of  the  probate  judge,  that  it  is  for  the  best  interest 
of  said  child  that  possession  and  control  thereof  be  taken  from  said  parent  or  other 
person  having  control  or  possession  thereof,  said  probate  judge  shall  make  an  order 
conferring  upon  the  general  agent  of  said  society  the  powers  of  a  guardian  as  to  such 
child; 

GUARDIAN  TO  PROVIDE  HOME  FOR  CHILD. —  and.  as  such  guardian,  said 
general  agent  may,  with  the  approval  of  the  probate  judge,  provide  a  suitable  home 
for  such  child  until  said  child  reaches  the-  age  of  majority  or  until  such  time  as  the 
probate  judge  may  be  satisfied  that  the  parent  or  parents  of  said  child  are  in  a  posi- 
tion to  properly  provide  and  care  for  said  child.     (April  25.  1898.  93  v.  296.) 


PART    XVIII. 

COLLEGES  AND   INSTITUTIONS  OF  LEARNING. 

§  3726.  Certain   corporations  may  appoint  a  faculty   and  confer  degrees. 

§  3727.  May  hold  donated  property   in  trust. 

§  3728.  Who  constitute  the  faculty ;  its  powers. 

§  3729.  May  teach  mechanics  and  agriculture. 

§  3730.  May  change  stock  into  scholarships. 

§  3731.  Location  may  he  changed,  and  how. 

§  3732.  When  and  how  coliege  endowment  fund  diverted. 

§  3733.  How  vacancies  in  board  Idled  in  certain  cases. 

§3734.  Certain  corporations  may  increase  their  property;  bonds. 

§  3735.  Statement  to  be  made  and  filed. 

§  3736.  How  certain  boards  may  be  constituted  and  governed. 

§  3737.  Trustees  to  be  divided  into  classes. 

§  3738.  Terms  of  office  of  trustees ;  how  vacancies  filled. 

§  3739.  When  board  to  be  enlarged.  x 

§  3740.  When  the  number  in  a  class  is  to  be  reduced. 

§  3741.  A  conference  may  become  a  patron  by  consent  of  other  bodies. 

§  3742.  Patronizing  bodies  may  appoint  visitors. 

§  3743.  When  the  right   of  representation  shall  cease. 

§  3744.  What  action  the  board  must  first  take. 

§  3745.  Quorum  ;   how  constituted. 

§  3746.  Certain  corporations  may  have  benefit   of  subsequent  provisions. 

§  3747.  Alumni  may  elect  trustees  and  appoint  visitors. 

§  3748.  Conduct  of   election. 

§  3749.  Returns  of  election,  and  certificates. 

§  3750.  Endowment  fund  corporations. 

§  3751.  How  certain  board  may   be  constituted  and  governed. 

§  3751a.       Increase  in  number  of  trustees  of  certain  corporations. 

§  3751b.       Incorporation    of    colleges    under    ecclesiastical    patronage;     what    articles    shall 
contain. 

§  3751c.       Existing  corporations  may  avail  themselves  of  provisions   of  act,   he,  ,     Copy   of 
acceptance   of  provision  to  be  filed  with  secretary  of  state. 

§  3752.         Classes  and   election  of   trustees;   president  ex   officio  a  member  of  board;   term; 
vacancies;  increase  in  board. 

§  3753.         Assessments  may  be  made  against  stockholders. 

§  3754.         Meeting  of  stockholders,  and  notice  thereof. 

§  3755.         Meeting  may  fix  the  amount  of  assessment. 

§  3756.         How  much  may  be  assessed,  and  collection  thereof. 

§3757.         The  board  of  military  academies:  how  constituted,  etc. 

§3758.         Board  of  visitors;  how  constituted. 

§  3759.         Duties  of  board  of  visitors. 

§  3760.         How  the  term  of  office  of  directors  and  trustees  may  be  fixed. 

§  3761.         Certain  corporations  may  change  location. 

§  3762.         Sale  and  distribution  of  the  property  of  certain  corporations. 

§  3762a.       Certain  colleges,  whose  articles  of  incorporation  are  not  on  file  in  the  office  of  the 
secretary  of  state,  may  file  same  there  and  amend. 
.  §  3762b.       Colleges  may  change  name  and  purpose,  when;  procedure;  fees. 

[470J 


Colleges  and  [nstiti  rioN    o]    Li  vp 


471 


Faculty — Degrees  —  Property,   Sjj  3726,  3727. 


§  37u:j. 


§  37f>4. 
§  3767. 
§  3768. 
§  3768   1. 

§  3768-2. 
?  3769. 
§  3770. 
§3771. 
§  3771a. 
An  Act. 
An  Act. 


Restrictions  under  which  medical  colleges  and  teachers  maj    receive  bodies  i"i   dis< 
section.     Bodies  to  be  delivered  i<>  claimant.     Intermenl   ol  bodj 
tion   or  dissection.     Notification   to   relative?    of  deceased    person.      Penalt; 
refusal  to  deliver  body  or  acceptance  of  consideration  foi   same.     Bo 
or  traveler.     Unlawful   to  have  unauthorized  bodj    in  posse  sion;  penal  I 

Penalty  for  having  unlawful  possession  of  corpse. 

Organic  rules  which   may  be  prescribed  in  certain  articles  of  incorporation. 

May  add  to  the  objects    if  the  corporation;  acceptance  of  statutory  provisions. 

Authorizing  certain   mechanics'  institutes  to  borrow   money;   liabilil 
and    trustees. 

Directors  not  personally  liable. 

Accounts  of  receipts  and  disbursements. 

Trustees   ineligible  to  other  office. 

Attorney-general   may.  by  act  ion.  enforce  duties  of  officers. 

How  number  of  trustees  of  certain  colleges  increased. 

To  provide  for  regulation  and  governmenl  of  Chautauqua  assemblies. 

To  provide  for  administration  of  educational   or  charitable    institutions  in   certain 

cases. 


§  3726.  CERTAIN  CORPORATIONS  MAY  APPOINT  A  FACULTY  AND  CON- 
FER DEGREES.  — The  trustees  of  a  college,  university,  or  other  institution  of  learn- 
ing incorporated  for  the  purpose  of  promoting  education,  religion,  morality,  or  the 
fine  arts,  which  has  acquired  real  or  personal  property  of  the  value  of  five  thousand 
dollars,  and  which  has  filed  in  the  office  of  the  secretary  of  state  a  schedule  of  the 
kind  and  value  of  such  property,  verified  by  the  oaths  of  the  trustees,  may  appoint  a 
president,  professors,  and  tutors,  and  any  other  necessary  agents  and  officers,  and  fix 
the  compensation  of  each,  and  may  enav.c  such  by-laws,  not  inconsistent  with  the  laws 
of  this  state  or  of  the  United  States,  for  the  government  of  the  institution,  and  for 
conducting  the  affairs  of  the  corporation,  as  they  may  deem  necessary;  and  may,  on 
the  recommendation  of  the  faculty,  confer  all  such  degrees  and  honors  as  are  con- 
ferred by  colleges  and  universities  of  the  United  States,  and  such  others  having 
reference  to  the  course  of  study,  and  the  accomplishments  of  the  student,  as  they  may 
deem  proper.  (April  9,  1852,  50  v.  128,  §  1;  March  11,  1853,  51  v.  403.  §S  2,  3; 
S.  &  C.  266;    S.  &  C.  270.) 


within  the  control  of  one  of  its  officers,  who 
sells  them,  and  thus  confers  degrees  without 
regard  to  merit,  there  is  such  misuser  as  re- 
quires the  dissolution  of  the  corporati 
state  e\  rel.  v.  Mi.  Bope  I  ollegi  I  o.,  U  W. 
L.   B.  339  (1900). 


Cited.   State  ex  rel.  v.  Medical  College,  60 
Oh.  St.   122   (1899). 

Conferring       degrees       without       merit, 
grounds  for  ousting  corporation. 

When  the  trustees  of  an  educational  institu- 
tion sign  diplomas  in   blank,  and  leave  them 

§  3727.  MAY  HOLD  DONATED  PROPERTY  IN  TRUST.—  Any  university,  col- 
lege, or  academy,  or  the  trustees  thereof,  may  hold  in  trust  any  property  devised, 
bequeathed,  or  donated  to  such  institution,  upon  any  specific  trust  consistent  with  the 
objects  of  the  corporation.      (April  9,   1852,  50  v.   128,   §   5;  S.  &  C.  267.) 


If    liability    incurred,    subscription    en- 
forceable. 

Subscriptions  promising  to  pay  money  for 
the  endowment  of  an  educational  institution 
are  enforceable  where  work  was  done  and  ex- 
penditures made  in  reliance  upon  such  prom- 
ises.—  Ohio  Wesleyan  College  v.  Higgins,  Exr., 
16  Oh.  St.  20  (1865);  Sturees  et  al.  v.  Colby 
et  al.,  3  W.  L.  T5.  643  (1878);  Irwin,  Admr., 
v.  Webster  et  al..  7  C.  C.  269  (1893);  s.  c. 
4  C.  D.  590;  Dun-el  v.  Belding,  9  C.  C.  74 
(1894);  s.  c,  4  C.  D.  263. 


If    no    liability    incurred,    not    enforce- 
able. 

If  no  liability  is  incurred   on  the  faith  of  a 
gratuitous  subscription,  it  cannot   bi 
-    Sutton,    Admr..    v.    Trustees,    7    l 
I  1893)  :   -.  c,   I  <  .  D.  627. 

"What  constitutes  new  liability. 
The  en  a  I  ion   of  a    fund  with  wl  : 
an    existing    indebtedness    is    nol    a    consider- 
ation   for    a    promise    to    contribute    to    such 
fund.  -Johnson  v.  University,  41   l 


472 


Private  Corporations  in  Ohio. 


Faculty — Curriculum — Scholarships  —  Location,   §§  3728-3731. 


The  charity  it  administers  may  be  public, 
but  the  corporation  is  private. —  Koblitz  v. 
Western  Reserve  University  et  al.,  21  C.  C. 
144   (1901). 


University   receiving    no    state    aid    is    a 
private   corporation. 

University  that  has  received  its  charter 
from  the  state,  and  is  exempt  from  paying 
taxes,  but  has  received  no  other  benefits  from 
the   state,   is  a  private   corporation. 

§  3728.  WHO  CONSTITUTES  THE  FACULTY;  ITS  POWERS.  —  The  president 
and  professors  shall  constitute  the  faculty  of  any  incorporated  literary  college  or  uni- 
versity, and  may  enforce  the  rules  and  regulations  enacted  by  its  trustees  for  the 
government  and  discipline  of  the  students,  and  suspend  and  expel  offenders,  as  may 
be  deemed  necessary.      (April  9,  1852,  50  v.  128,  §  6;    S.  &  C.  267.) 


Disciplining     student;     what     sufficient 
hearing. 

In  administering  the  discipline  of  the  insti- 
tution, the  authorities  should  afford  a  fair 
opportunity  of  presenting  evidence  as  to  inno- 
cence, but  are  not  under  obligation  to  afford 
all  the  formalities  of  a  court  of  justice. — 
Koblitz  v.  Western  Reserve  University  et  al.r 
21  C.  C.  144   (1901). 

Power  of  faculty  to  expel. 

Where  a  student  has  been  guilty  of  various 
breaches  of  duty,  and  the  faculty  have  af- 
forded him  opportunity  to  make  explanation 
and  present  evidence  of  his  innocence,  and 
•where  the  faculty,  after  examination  of  his 
conduct,  have  found  his  acts  to  be  injurious 
to  the  university,  it  is  justified  in  expelling 
him.—  Koblitz  v.  Western  Reserve  University 
et  al.,  21  C.  C.  144  (1901).  See  note  to  same 
case  under  preceding  section. 


Right    of     state     to     exercise     visitorial 
power. 

Where  the  corporation  is  private,  and  is  not 
administering  funds  contributed  to  it  by  the 
state,  the  state  will  not  exercise  visitorial 
power  over  its  domestic  affairs,  and  will  not 
interfere  with  its  management  unless  there 
has  been  unjust  and  oppressive  treatment  of 
its  students,  or  there  has  been  a  breach  of 
trust  by  the  managing  officers.— Koblitz  v. 
Western  Reserve  University  et  al.,  21  C.  C. 
144  (1901). 
Dismissal    of    student    for    violation    of 

rules. 

A  student,  though  paying  a  tuition  fee.  as- 
sumes the  performance  of  certain  obligations, 
and  the  tailure  to  perform  the  same  may  be 
of  such  a  nature  that  the  university  will  be 
justified  in  dismissing  him. —  Koblitz  v.  West- 
ern Reserve  University  et  al.,  zl  C.  C.  144 
(1901). 

§  3729.  MAY  TEACH  MECHANICS  AND  AGRICULTURE.—  Any  incorporated 
university,  college,  or  academy  may  connect  therewith,  to  be  used  as  a  part  of  its 
course  of  education,  any  mechanical  shops  and  machinery,  or  lands  for  agricultural 
purposes  not  exceeding  three  hundred  acres,  to  which  may  be  attached  all  necessary 
buildings  for  carrying  on  the  mechanical  or  agricultural  operations  of  such  institu- 
tion.     (April  9,  1852,  50  v.    128,  §  8;    S.  &  C.  267.) 

3730.  MAY  CHANGE  STOCK  INTO  SCHOLARSHIPS.—  Any  company  formed 
in  pursuance  of  this  title,  or  which  now  exists  by  virtue  of  any  special  act  of  incor- 
poration, the  property  of  which  is  held  as  stock,  and  not  derived  by  donation,  gift, 
devise,  or  gratuitous  subscription,  may  change  its  capital  stock  into  scholarships, 
when  it  becomes  necessary  for  the  purpose  of  carrying  out  the  object  for  which  it  was 
formed,  in  the  manner  provided  in  section  thirty-two  hundred  and  sixty-two.  (April 
9,   1852,  50  v.    128,  §§  9,  10;    S.  &  C.   268.) 

May   issue    scholarships.  I  receive   instruction    for   one  pupil    perpetually 

A  college  corporation  has  the  power  to   re-  I  free  of   tuition.— College  v.  Gary,   35  Oh.    bt. 
ceive  a  subscription  for  which  the  donor  is  to  |  G4S    (18S0). 

§  3731.  LOCATION  MAY  BE  CHANGED,  AND  HOW. —A  college,  university, 
or  other  institution  of  learning,  now  existing  by  virtue  of  any  act  of  incorporation,  or 
that  may  hereafter  become  incorporated  for  any  of  the  purposes  specified  in  this 
chapter,  may,  if  three-fourths  of  the  trustees  or  directors  thereof  deem  the  same 
proper,  or  if  the  institution  is  owned  in  shares,  or  by  stock  subscribed  or  taken,  by  a 
vote  of  the  holders  of  three-fourths  of  the  stock  or  shares,  change  the  location  of  such 
institution,  convey  its  real  estate,  and  transfer  the  effects  thereof,  and  invest  the  same 


Colleges  and  [nstiti 


473 


Endowments,    etc.— Trustee  —  Statements,    etc.,    $ 


at   the  place  to  which   such   institution   may   be   removed;    but  no  ill   be 

ordered,   and  no  vote  taken  thereon,  until  after  publication   In   the  manner  provided 
in  the  last  section,  in  which  notice  shall  be  fully  set  forth   th<  to  which 

proposed  to  remove  such  institution,  and,  in  case  of  removal,  a  copy 

of  such  meeting  shall  be  filed  with  the  secretary  of  state.      (Ai  52  v.  77, 

§  12;  S.  &  C.  268.) 


§  3732.    WHEN  AND  HOW  COLLEGE  ENDOWMENT  EUND  DIVESTED.  —  The 

trustees  of  a  corporation  incorporated  for  the  purpose  of  creating,  holding,  and  man- 
aging a  college  endowment  fund,  the  articles  of  incorporation  of  which  provide  that 
the  fund  may  be  applied  to  any  object  not  inconsistent  with  the  purposes  of  edur 
different  from  that  particularly  specified  therein,  may  apply  to  the  court  of  common 
pleas  in  the  county  where  the  corporation  is  located  for  permission  to  make  such 
change,  designating  particularly  the  purposes  to  which  it  i^  proposed  to  apply  the 
fund;  and  the  court,  on  being  satisfied  that  such  change  i3  not  inconsistent  with  the 
object  of  the  original  creation  and  institution  of  the  fund,  shall  authorize  and  sanc- 
tion the  change.     (March  12,  1853,  51  v.  393,  §  2;  S.  &  C.  269.) 

The  property  of  a  private  eleemosynary 
corporation,  although  charged  with  the  main- 
tenance of  a  college  or  other  "  public  charity  " 
is   private  property,  within   the  meaning  and 


prol  ed  ion  of  section    19;  a  1 1  icle   !   of  * ;  • 
3titution.     Ohio    ex    rel.      .     \.  ff,    52   Oh.    81 
375  (1895). 


§  3733.  HOW  VACANCIES  IN  BOARDS  FILLED  IN  CERTAIN  CASES.  —  When- 
ever there  occurs  a  vacancy,  in  whole  or  in  part,  in  the  board  of  trustees  of  an  incor- 
porated college,  seminary,  or  academy,  by  reason  of  an  amendment  of  the  charter  in 
such  corporation,  or  from  any  other  cause,  and  there  is  no  provision  of  law  for  filling 
such  vacancy,  the  governor  shall,  within  three  months  after  receiving  information 
thereof,  appoint  the  required  number  of  trustees,  one-third  thereof  to  serve  for  one 
year,  one-third  to  serve  for  two  years,  and  one-third  for  three  years.  (March  1,  1878, 
75  v.  25,   §  2.)' 


§  3734.  CERTAIN  CORPORATIONS  MAY  INCREASE  THEIR  PROPERTY; 
BONDS.  —  A  college,  university,  academy,  seminary,  or  other  institution  devoted  to 
the  promotion  of  education,  now  existing  by  virtue  of  any  special  act  of  incorporation, 
or  organized  under  the  provisions  of  any  law,  whose  property  is  derived  and  held  by 
donation,  gift,  purchase,  devise,  or  gratuitous  subscription,  and  the  amount  of  which, 
or  the  income  arising  therefrom,  is  limited  by  such  special  act.  or  by  the  articles  of 
association  adopted  by  such  institution,  may  receive,  acquire,  possess  and  hold  here- 
after any  amount  of  property,  real,  personal  or  mixed,  which  its  board  of  directors  or 
trustees  shall  deem  it  advisable  for  the  institution  to  accept,  and  may,  by  its  trustees, 
sell,  dispose  of  and  convey  the  same,  but  such  property  shall  not  be  diverted  from  the 
express  will  of  the  donor,  devisor  or  subscriber.  The  board  of  trustees  of  any  such 
college,  university,  academy,  seminary,  or  other  institution  devoted  to  the  promotion 
of  education,  in  anticipation  of  donations  to  be  received  and  collections  to  be  made, 
may,  for  the  purpose  of  constructing,  enlarging  or  adding  to  any  college  buildings  or 
improvements,  borrow  such  sum  of  money  as  they  may  determine  necessary  for  such 
purpose,  and  may  issue  bonds  therefor  and  secure  the  same  by  a  mortgage  upon  the 
property  upon  which  such  improvement  is  to  be  made,  provided  such  property  is  not 
held  by  them  under  some  specific  trust.  (March  8,  1893,  90  v.  71;  April  9.  1856,  53  v. 
170,  §   1;    S.  &  C.  368.) 

§  3735.  STATEMENT  TO  BE  MADE  AND  FILED.—  Before  any  such  institution 
shall  be  authorized  to  acquire  and  hold  such  additional  property,  the  trustees  thereof, 
at  a  regular  meeting  of  their  board,  or  at  a  special  meeting  called  for  that  purpose, 
shall  from  time  to  time,  make  and  sign  a  statement  specifying  the  amount  of  such 


474  Private  Corporations  in  Ohio. 

Trustees,   Board  of,   etc.,    §§   3736-3739. 

additional  property  which  they  seek  to  acquire  and  hold,  and  shall  set  forth  therein 
the  purposes  to  which  it  is  to  be  devoted,  which  statement  shall  be  entered  at  large 
upon  the  record  book  of  the  trustees  and  be  filed  in  the  office  of  the  secretary  of 
state.      (March  8,  1893,  90  v.  72;    April  9,   1856,  53  v.   170,  §2;    S.  &  C.  368.) 

§  3736.  HOW  CERTAIN  BOARDS  MAY  BE  CONSTITUTED  AND  GOVERNED. 
—  The  board  of  trustees  of  any  university  or  college  heretofore  incorporated,  and  now 
under  the  patronage  of  four  or  more  conferences  or  other  religious  bodies  of  any 
religious  denomination,  may  accept  the  provisions  of  this  and  the  nine  succeeding 
sections,  by  resolution  adopted  at  any  regular  meeting  of  the  board,  and  entered  upon 
the  record  of  its  proceedings;  and  after  such  acceptance  the  board  shall  in  all  respects 
be  organized,  constituted,  regulated,  and  perpetuated,  pursuant  to  and  under  said 
provisions;  but  no  right  acquired  by  any  such  board,  or  any  such  university  or  col- 
lege, under  its  charter,  or  any  law  of  this  state,  shall  in  any  way,  be  affected  by  said 
provisions.     (May  13,  1868,  65  v.  188,  §  1;  S.  &  C.  106.) 

§  3737.  TRUSTEES  TO  BE  DIVIDED  INTO  CLASSES.  —  At  a  meeting  of  such 
board  held  after  a  vacancy  occurs  therein  it  shall  fill  such  vacancy,  or  if  more  than  one 
vacancy  has  occurred,  then  one  of  them,  by  appointing  the  president  of  the  university 
or  college  a  trustee,  and  the  president  of  such  university  or  college  shall,  ex  officio,  be 
a  trustee  perpetually  thereafter;  the  board  shall  also,  at  such  meeting,  divide  its 
number,  excluding  the  said  president,  and  including  all  vacancies  except  the  one  he 
is  so  appointed  to  fill,  into  classes,  corresponding  in  number  to  the  number  of  con- 
ferences or  other  religious  bodies  at  the  time  patronizing  such  university  or  college, 
such  classes  to  have  in  each  an  equal  number  of  trustees,  as  near  as  may  be;  and  the 
board  shall  assign  one  of  such  classes  to  each  of  the  conferences  or  other  religious 
bodies,  and  thereafter  each  may  fill  any  and  all  vacancies  in  the  class  so  assigned  to 
it.     (May  13,   1868,  65  v.   188,  §  2;    S.  &  C.   106.)  I 

§3738.   THE  TERM  OF  OFFICE  OF  TRUSTEES;  HOW  VACANCIES  FILLED.— 

When  the  classes  of  trustees  are  formed,  as  provided  in  the  preceding  section,  the 
term  of  office  of  one  of  the  trustees  in  each  of  the  classes,  to  be  selected  by  lot  in  open 
session  of  the  board  of  trustees,  shall  expire  each  year,  and  the  persons  thereafter 
elected  as  trustees  shall  act  as  such  for  a  term  of  years  equal  in  number  to  the  num- 
ber of  trustees  in  any  class,  except  as  hereinafter  provided;  but  the  term  of  office  of 
a  trustee  shall  not  expire  during  any  meeting  of  the  board  which  does  not  continue 
for  more  than  two  weeks;  and  vacancies  which  occur  in  any  class  of  trustees  other- 
wise than  by  the  expiration  of  term  of  office  shall  be  filled  only  for  the  remainder  of 
the  term.     (May  13,  1868,  65  v.  188,  §  3;  April  24,  1873,  70  v.  157,  §  1;   S.  &  C.  107.) 

§  3739.  WHEN  THE  BOARD  IS  TO  BE  ENLARGED.  —  If  the  number  of  the 
conferences  or  other  religious  bodies  patronizing  any  such  university  or  college,  the 
board  of  trustees  of  which  has  been  divided  into  classes  as  hereinbefore  provided,  be 
increased  to  not  exceeding  six,  the  board  of  trustees  shall  be  enlarged  to  the  extent 
of  one  additional  class  of  trustees  for  each  of  such  additional  conferences  or  other 
religious  bodies,  such  additional  classes  to  have  in  each  a  number  of  trustees  equal  to 
the  number  in  any  one  of  the  former  classes;  and  each  of  such  additional  conferences 
or  other  religious  bodies  may  elect,  as  members  of  the  board,  the  number  in  its  class, 
one  for  one  year,  one  for  two  years  and  one  for  three  years,  and  so  on  to  the  extent 
of  the  number;  and  each  of  such  additional  conferences  or  other  religious  bodies  may 
fill  any  vacancy  in  its  class.  And  such  board  of  trustees  composed  according  to  the 
foregoing  provisions  and  the  provisions  of  section  thirty-seven  hundred  and  forty- 
seven  of  this  chapter,  without  regard  to  the  number  of  members  so  composing  it,  may 
increase  its  own  numbers  by  the  election  of  trustees  at  large,  not  exceeding  the  num- 
ber of  conferences  or  other  religious  bodies  cooperating  with  or  patronizing  such  uni- 


Colleges  and  Institutions  oe   Learni  475 


Trustees,  Board  of,  etc.,  SS  3740  3740. 


versity  or  college,  and  may  divide  such  trustees  at  large  into  classes,  at  its  discretion. 
(March  17,   1892,  89  v.   119;    May  13,   1808,  05  v.    188,   |  4 ;    S.  &  S.   107.) 

§  3740.  WHEN  THE  NUMBER  IN  A  CLASS  IS  TO  BE  REDUCED. —  If  the 
number  of  such  patronizing  conferences  or  other  religious  bodies  at  any  time  a 
six,  the  representation  of  each  shall  be  reduced  by  lot,  in  open  session  of  the  board 
of  trustees,  to  a  class  of  three  trustees,  if  they  exceed  that  number,  who  shall  there- 
after be  elected  to  serve  as  trustees  for  the  term  of  six  years,  and  in  that  case  the  term 
of  office  of  one  trustee  in  each  class  shall  expire  every  second  year.  (May  13,  1808, 
€5  v.  188,  §  5;    S.  &  S.  107.) 

§  3741.  A  CONFERENCE  MAY  BECOME  A  PATRON  BY  CONSENT  OF  OTHER 
BODIES.  —  Any  conference  or  other  religious  body,  not  patronizing  any  particular 
university  or  college,  may  become  such  patronizing  conference  or  religious  body,  by 
and  with  the  consent  of  the  conference  or  other  religious  bodies  at  the  time  patroniz- 
ing such  university  or  college.     (May  13,  1808,  05  v.   183,  SO;    S.  &  S.  107.) 

§  3742.  PATRONIZING  BODIES  MAY  APPOINT  VISITORS.  —  Each  conference 
or  other  religious  body  patronizing  any  particular  university  or  college  may,  annu- 
ally, appoint  two  visitors,  and  the  board  of  trustees  of  a  college  or  university  may 
provide,  at  the  time  of  its  organization,  by  resolution  adopted  and  entered  on  its 
records,  for  the  appointment  of  two  visitors  by  each  confeience  or  other  religious 
body  patronizing  such  college  or  university;  and  such  visitors  shall  attend  the  meet- 
ings of  the  board  of  trustees  of  such  university  or  college,  and,  with  the  trustees,  con- 
stitute a  joint  board  for  the  appointment  and  removal  of  all  officers,  professors,  and 
instructors  of  the  university  or  college.     (April  8,  1870,  73  v.  103,  g  7;    S.  &  S.  107.) 

§  3743.  WHEN  THE  RIGHT  OF  REPRESENTATION  SHALL  CEASE.  —  If  a 
conference  or  other  religious  body  patronizing  any  university  or  college,  and  having 
a  representation  in  its  board  of  trustees,  cease  to  exist,  or  cease  to  patronize  such  uni- 
versity or  college,  the  right  of  such  conference  or  other  religious  body  to  such  repre- 
sentation shall  cease,  and  its  board  of  trustees  shall  be  thereby  and  to  that  extent 
reduced  in  numbers.  (May  13,  1808,  05  v.  188,  g  8;  April  8,  1870,  73  v.  103;  S. 
&  S.   107.) 

§  3744.  WHAT  ACTION  THE  BOARD  MUST  FIRST  TAKE.  —  Before  a  confer- 
ence or  other  religious  body  not  represented  in  the  board  of  trustees  of  any  university 
or  college  shall  be  entitled  to  be  represented  therein,  and  before  any  conference  or 
other  religious  body  represented  therein  shall  be  deprived  of  such  representation  as 
provided  in  the  preceding  section,  the  board  shall  declare,  and  cause  to  be  entered  iu 
the  record  of  its  proceedings,  that  the  conditions  and  contingencies  hereinbefore  pro- 
vided for  in  that  behalf  have  taken  place.     (May  13,  1808,  05  v.  188.  §9;S.&S.  107.) 

§  3745.  QUORUM:  HOW  CONSTITUTED. — Eleven  trustees  shall  constitute  a 
quorum  of  the  board  of  any  such  university  or  college,  whatever  the  number  of  trus- 
tees constituting  the  board  is  or  may  become,  if  the  number  is  more  than  twenty; 
and  if  the  number  is  twenty  or  less,  a  majority  thereof  shall  constitute  a  quorum. 
(May  13,  1808,  05  v.  188,  §   10;    S.  &  S.   108.) 

§  3740.  CERTAIN  CORPORATIONS  MAY  HAVE  BENEFIT  OF  SUBSEQUENT 
PROVISIONS.  —  The  board  of  trustees  of  any  university  or  college  which  has  accepted 
or  hereafter  accepts  the  provisions  of  the  ten  preceding  sections,  may  accept  the  pro- 
visions of  the  three  succeeding  sections  by  resolution  adopted  at  any  regular  meeting 
of  the  board,  and  entered  upon  the  record  of  its  proceedings,  and  thereafter  the 
board,  and  the  university  or  college,  shall  be  subject  to  (the)  provisions  thereof. 
(April  12,  1872,  09  v.  71,  §  1.) 


476  Private  Corporations  in  Ohio. 


Trustees,  Board  of  —  Endowment  Fund   Companies,    §§  3747-3750. 


§  3747.  ALUMNI  MAY  ELECT  TRUSTEES  AND  APPOINT  VISITORS.  —  After 
such  acceptance  by  the  board  of  any  university  or  college,  the  alumni  thereof  (com- 
posing the  alumnal  association  thereof)  may  elect  as  members  of  the  board  of  trustees 
of  such  college  or  university,  members  of  such  alumnal  association,  in  numbers  equal- 
ing the  numbers  of  the  conferences  cooperating  with  or  patronizing  such  university  or 
college,  and  may  divide  such  alumnal  trustees  into  classes,  and  perpetuate  the  same; 
and  such  alumni  may,  at  the  same  time,  elect  as  visitors  members  of  their  association 
equaling  in  numbers  one-half  of  the  numbers  of  the  conferences  or  other  religious 
bodies  cooperating  with  or  patronizing  such  university  or  college,  and  such  visitors 
shall  have  the  same  powers  and  duties  as  visitors  appointed  by  any  conference  or 
other  religious  body  aforesaid;  provided,  that  when  women  are  members  of  the 
alumnal  association  so  electing,  they  shall  be  eligible  as  visitors;  provided,  further, 
that  the  board  of  trustees  shall  be  judge  of  the  validity  of  the  election  and  the  returns 
thereof,  of  trustees  and  visitors  elected  under  this  section.  (March  17.  1892,  89  v. 
120;  81  v.  174;  R.  S.  1880;  April  12,  1872,  69  v.  71,  §  2;  May  13,  1879,  76  v.  87,  §  1.) 

§  3748.  CONDUCT  OF  ELECTION.  —  The  election  of  trustees  and  visitors  by  the 
alumni  shall  be  by  ballot,  and  held  each  year,  beginning  the  year  after  such  accept- 
ance, on  the  secular  day  next  before  the  day  of  commencement  of  such  university  or 
college,  at  such  place  in  a  building  on  its  grounds  as  may  designated  by  the  president 
of  the  alumnal  association  by  written  notice  posted  the  day  before  the  election  in  at 
least  two  public  places  on  such  grounds;  and  the  polls  shall  be  opened  at  the  hour 
named  in  said  notice,  which  shall  not  be  later  than  three  o'clock  p.  m.,  and  shall  be 
kept  open  two  hours  thereafter.  The  election  shall  be  conducted  by  three  judges  and 
two  clerks,  who  shall  be  members  of  the  association  and  be  chosen  by  the  members 
present  at  the  place  of  voting  at  the  time  for  opening  the  polls,  and  they  shall  certify 
to  the  board  of  trustees  the  result  of  such  election,  with  a  list  of  the  members  voting 
thereat;  each  ballot  shall  contain  the  names  of  the  persons  voted  for,  and  the  office 
which  each  is  to  fill  and  a  designation  of  the  term  for  which  he  is  to  serve.  At  such 
election  all  members  of  the  alumnal  association  of  such  university  or  college  shall  be 
entitled  to  vote,  and  members  not  in  attendance  may  exercise  their  right  by  sending 
ballots  conformable  to  the  foregoing  provisions,  with  their  names  thereon  indorsed, 
and  addressed  tinder  seal  to  the  president  of  such  association.  (March  17,  1892,  89 
v.  120;    April  12,  1872,  69  v.  71,  §  3.) 

§  3749.  RETURNS  OF  THE  ELECTION,  AND  CERTIFICATES.  —  After  the 
polls  are  closed  the  result  shall  be  ascertained  and  certified  to  by  the  judges  and 
clerks,  and  the  person  or  persons,  not  exceeding  the  number  to  be  elected  as  trustees, 
having  received  the  highest  number  of  votes  for  trustee  or  trustees,  shall  be  declared 
elected  as  trustee  or  trustees  as  designated  on  the  ballot,  and  the  two  persons  who 
receive  the  highest  number  of  votes  for  visitors  shall  be  declared  elected,  but  their 
term  of  office  shall  not  begin  until  after  the  final  adjournment  of  the  regular  meeting 
of  the  trustees  for  that  year;  if  any  two  or  more  persons  receive  an  equal  number  of 
votes  for  the  same  office  of  trustee  or  visitor,  one  of  them,  as  may  be  determined  by 
lot  by  the  judges,  in  the  presence  of  all  the  electors  who  may  wish  to  be  present,  shall 
be  the  trustee  or  visitor,  and  shall  be  so  declared;  and  duplicate  certificates  of  elec- 
tion shall  be  signed  by  the  judges  and  clerks,  and  delivered  by  them,  one  to  each  of 
the  persons  elected,  and  the  other,  with  the  poll-books  duly  certified  by  the  judges  and 
clerks,  to  the  secretary  of  the  board  of  trustees  of  the  university  or  college,  the  next 
day  after  the  election,  which  certificate  he  shall  enter  of  record  in  the  book  containing 
the  proceedings  of  the  board  of  trustees.     (April  12,  1872,  69  v.  71,  §  3.) 

§  3750.  ENDOWMENT  FUND  CORPORATIONS.  —  The  trustees  of  a  corpora- 
tion incorporated  for  the  purpose  of  creating  a  fund,  the  income  of  which  is  to  be 
applied  to  the  promotion  of  education,  may  receive  subcriptions  for  membership  in 


Colleges  and  Institutions  of  I  477 

Trustees,    Board    of  —  Institutions   Under   Patronage,    S 

the  corporation,  and  they,  or  a  majority  of  them,  by  giving  ten  days'  notice,  by  publi- 
cation in  the  county  where  the  corporation  is  located,  may  call  a  meeting  of  members 
to  adopt  by-laws,  and  elect  not  more  than  nine  directors;  each  member  shall  have  a 
vote  for  every  amount  by  him  subscribed  equal  to  that  in  the  articles  of  incorpora' 
specified  as  necessary  for  membership,  which  may  be  cast  in  person  or  by  proxy,  but 
at  no  subsequent  meeting  may  a  member  vote  for  or  be  eligible  as  a  director  who  is 
in  arrears  to  the  corporatior. ;  and  the  trustees  shall  control  the  funds  and  disburse 
the  income  of  the  corporation  as  may  be  provided  by  its  by-laws.  (April  27,  1872,  69 
v.  173,  §§  1,  2,  3,  4,  5.) 

§  3751.  HOW  CERTAIN  BOARD  MAY  BE  CONSTITUTED  AND  GOVERNED.— 
The  board  of  trustees  of  any  university,  college  or  other  institution  of  learning,  incor- 
porated, and  acting  under  the  patronage  of  one  annual  conference  or  other  religious 
body  of  any  religious  denomination,  may  accept  the  provisions  of  this  and  the  suc- 
ceeding section,  by  resolution  adopted  at  any  meeting  of  the  board,  and  entered  upon 
the  record  or  journal  of  its  proceedings;  and  after  such  acceptance  the  board  shall  be 
organized,  constituted,  regulated,  and  perpetuated  as  therein  provided;  but  no  right 
acquired  by  any  such  board,  university,  or  other  institution  of  learning,  under  its 
charter,  or  any  law  of  this  state,  shall  in  any  way  be  impaired  or  affected  thereby. 
(April  27,   1872,  69  v.   180,  §   1.) 

§  3751a.  INCREASE  IN  NUMBERS  OF  TRUSTEES  OF  CERTAIN  CORPORA- 
TIONS.—  The  board  of  trustees  of  any  university  or  college  heretofore  incorporated, 
and  now  under  the  patronage  of  one  annual  conference  or  synod  or  other  religious 
body  of  any  religious  denomination,  may  increase  the  number  of  its  trustees,  not 
exceeding  six;  said  additional  trustees  to  be  nominated  by  the  collegiate  alumni  of 
such  university  or  college  from  the  collegiate  alumni  of  three  years'  standing,  for 
appointment  or  election  by  such  patronizing  conference  or  synod,  under  such  regula- 
tions as  may  be  prescribed  by  such  board  of  trustees;  provided,  that  the  board  of 
trustees  of  such  university  or  college  shall  so  determine  to  increase  the  number  of  its 
trustees  and  adopt  such  regulations  for  their  nomination,  by  resolution  adopted  at 
any  regular  meeting  of  such  board  and  duly  entered  on  the  record  of  its  proceedings; 
and,  provided  further,  that  such  patronizing  or  governing  conference  or  synod  shall 
consent  to  such  increase  of  said  board  of  trustees  and  the  rules  and  regulations  for 
the  nomination  of  the  same.  And  after  such  board  of  trustees  is  so  increased  by  the 
election  of  any  additional  trustees,  not  exceeding  six,  the  board  of  trustees  shall  in 
all  respects  be  organized,  constituted,  regulated  and  perpetuated  pursuant  to  and 
under  the  provisions  of  the  charter  and  said  provisions;  but  no  rights  acquired  by 
any  such  board  or  any  such  university  or  college,  under  its  charter  or  any  law  of  this 
state,  shall  in  any  way  be  affected  or  impaired  thereby.      (April  19,  1894.  91  v.  155.) 

§  3751b.  INCORPORATION  OF  COLLEGES  UNDER  ECCLESIASTICAL 
PATRONAGE;  WHAT  ARTICLES  SHALL  CONTAIN.  —  A  corporation  may  be 
formed  for  the  promotion  of  academic,  collegiate  or  university  education,  under  reli- 
gious influences,  and  is  hereby  authorized  and  empowered  to  set  forth  in  its  articles, 
or  certificate  of  corporation,  as  a  part  of  the  same,  the  name  of  the  religious  sect 
association  or  denomination  with  which  it  proposes  to  be  connected,  and  it  is  further 
authorized  and  empowered  to  grant  any  ecclesiastical  body  of  such  religious  sect, 
association  or  denomination,  whether  the  same  be  a  conference,  association,  presby 
tery,  synod,  general  assembly,  convocation  or  otherwise,  the  right  to  appoint  its 
trustees  or  directors,  or  any  number  thereof;  and  it  is  further  authorized  and  empow- 
ered to  set  forth  in  its  articles  or  certificate  of  corporation,  such  other  rights  as  to  the 
administration  of  the  purpose  for  which  it  is  organized,  and  not  inconsistent  with  the 
laws  of  this  state  or  of  the  United  States,  as  said  incorporation  may  desire  to  confer 
upon  said  ecclesiastical  body  of  such  religious  sect,  association  or  denomination  and 


478  Private  Corporations  in  Ohio. 


Institutions   Under    Patronage,    etc. —  Trustees  —  Assessment,    §§    3751c-3753. 


the  said  ecclesiastical  body  of  such  religious  sect,  association  or  denomination  shall 
possess  and  exercise  all  rights  and  powers  so  set  forth  in  said  articles,  or  certificate  of 
corporation.     (April   16,   1900,  94  v.  331.) 

§  3751c.  EXISTING  CORPORATIONS  MAY  AVAIL  THEMSELVES  OF  PRE- 
CEDING SECTION;  HOW. —  Any  corporation  formed  for  the  promotion  of  academic, 
collegiate  or  university  education,  under  religious  influences,  which  has  been  incor- 
porated under  the  laws  of  this  state,  whether  by  special  act  of  the  legislature  or  other- 
wise, may  avail  itself  of  the  provisions  of  the  preceding  section,  as  a  part  of  its 
articles  or  certificate  of  incorporation,  and  may  confer  on  any  ecclesiastical  body  of 
such  religious  sect,  association  or  denomination,  as  it  is  now,  or  proposes  to  be  con- 
nected with,  whether  the  same  be  a  conference,  association,  presbytery,  synod,  gen- 
eral assembly,  convocation  or  otherwise,  any  or  all  of  the  rights,  powers  or  privileges 
provided  by  the  preceding  section  to  be  conferred  on  corporations  hereafter  organized, 
and  may  accept  the  provisions  of  such  preceding  section  by  a  vote  of  the  majority  of 
the  trustees  of  such  corporation  at  any  regular  meeting;  and  when  so  accepted,  a  copy 
of  said  acceptance,  certified  by  the  secretary  or  clerk  of  its  board  of  trustees  or  direct- 
ors, shall  be  sent  to  the  ecclesiastical  body  with  which  it  is  now  or  proposes  to  be 
connected;  if  such  ecclesiastical  body  agree  to  accept  the  powers  proposed  to  be  con- 
ferred upon  it,  it  shall  certify  its  approval  upon  such  certified  copy  sent  to  it,  and  the 
same  shall  thereupon  be  filed  in  the  office  of  the  secretary  of  state;  and,  when  so  filed, 
the  same  shall  become  and  be  a  part  of  the  charter  of  said  corporation;  and  said 
ecclesiastical  body  of  such  religious  sect,  association  or  denomination,  whether  the 
same  be  a  conference,  association,  presbytery,  synod,  general  assembly,  convocation 
or  otherwise,  shall  possess  and  exercise  all  the  rights  and  powers  so  set  forth  in  said 
articles  or  certificate  of  corporation.      (April   16,   1900,  94  v.  331.) 

§  3752.  CLASSES  AND  ELECTION  OF  TRUSTEES;  PRESIDENT  EX-OFFICIO 
A  MEMBER  OF  BOARD;  TERM;  VACANCIES;  INCREASE  IN  BOARD. —After 
such  acceptance  the  board  shall  certify  the  same  to  the  patronizing  conference  or  other 
religious  body  having  the  right  to  elect  or  appoint  trustees  of  such  university  or  other 
institution  of  learning,  at  the  next  meeting  of  such  conference  or  other  religious  body; 
and  thereafter  the  board  shall  consist  of  twenty-one  trustees  elected  or  appointed,  and 
the  president  of  such  university  or  other  institution  of  learning,  who  shall  be  ex-ofncio 
a  member  of  the  board;  such  elected  or  appointed  trustees  shall  be  divided  into  three 
classes  of  seven  members  each.  At  the  first  election  or  appointment  after  such  accept- 
ance, one  of  such  classes  shall  be  elected  or  appointed  for  one  year,  one  for  two  years 
and  one  for  three  years,  and  in  all  subsequent  elections  or  appointments  each  of  the 
classes  of  trustees  shall  be  elected  or  appointed  for  three  years,  but  no  term  of  office 
of  any  such  trustee  shall  expire  during  any  meeting  of  the  board  which  does  not  con- 
tinue more  than  two  weeks.  Ten  members  of  the  board  shall  constitute  a  quorum, 
and  all  vacancies  which  occur  in  any  class  of  trustees  otherwise  than  by  expiration 
of  the  term  of  office  shall  be  filled  only  for  the  remainder  of  the  term;  provided,  that 
any  such  university  or  other  institution  of  learning  having  heretofore  accepted  the 
provisions  of  original  sections  three  thousand  seven  hundred  and  fifty-one  and  three 
thousand  seven  hundred  and  fifty-two  may  increase  its  board  of  trustees  by  electing 
or  appointing  two  additional  members  in  each  of  the  classes  of  trustees  herein  pro- 
vided for.  (March  30,  1888.  85  v.  140,  141;  R.  S.  1880;  April  27,  1872,  69  v. 
180,  §§  2,  3;    70  v.  157,  §  l.J 

§  3753.  ASSESSMENTS  MAY  BE  MADE  AGAINST  STOCKHOLDERS.  —  The 
proportion  that  each  stockholder  of  any  college,  academy,  university,  seminary,  or 
other  institution  for  the  promotion  of  education,  shall  be  required  to  pay  to  meet  the 
debts  and  liabilities  of  the  corporation,  may  be  determined  and  collected  in  the  man- 


Collects  and  Institutions  ob   Leab  479 


Assessments  —  Military   Academies,   et<  I  00. 

ner  provided  by  the  three  succeeding  sections.     (February  20,    16'> 
S.  &  S.   108.) 

,  §  3754.    MEETING  OF  THE  STOCKHOLDERS,  AND  NOTiCE  THEREOF.  —  The 

trustees  of  any  such  corporation  desiring  to  avail  themselves  of  such  pro  hall 

call  a  meeting  of  the  stockholders  for  the  purpose  of  determining  what  amount  of  the 
indebtedness  of  the  corporation  shall  be  paid  by  each  stockholder;  and  th< 
give  thirty  days'  notice  to  the  stockholders,  in  writing,  or  by  publication  in 
newspaper  of  general  circulation  in  the  county  where  the  corporation  is  located,  of  the 
time,  place,  and  purpose  of  the  meeting,  at  which  the  trustees  shall  submit  a  detailed 
statement  showing  the  assets  and  indebtedness  of  the  corporation.  (February  ^0. 
1861,  58  v.  20,  §§  2,  3;    S.  &  S.  108.) 

§  3755.  MEETING  MAY  FIX  AMOUNT  OF  ASSESSMENT.  —  A  majoi  i 
interest  of  the  stockholders  present  at  such  meeting  may  determine  what  amount  of 
the  indebtedness  of  the  corporation  shall  be  paid  by  each  stockholder,  and  fix  the  time 
or  times,  and  the  mode,  for  the  payment  of  the  amount  of  money  assessed  against 
each  stockholder;  but  these  provisions  shall  not  interfere  with  or  abridge  the  right 
of  any  creditor  of  the  corporation  to  institute  any  proceedings  authorized  by  la 
enforce  the  liability  of  stockholders.     (February  20,  1861,  58  v.  20,  j  4;    S.  &  S.  108.) 

§  3756.  HOW  MUCH  MAY  BE  ASSESSED,  AND  COLLECTION  THEREOF.  — 
The  assessment  shall  be  pro  rata  upon  the  stock  subscribed  or  otherwise  acquired  by 
each  stockholder,  and  in  no  case  shall  exceed  the  amount  for  which  each  stockholder 
is  or  may  be  liable  by  law;  and  a  stockholder  who  fails  to  pay,  as  required  by  the 
assessment,  the  amount  so  assessed  against  him,  shall  be  liable  in  a  civil  action,  to 
be  brought  in  the  name  of  the  corporation,  for  the  recovery  thereof,  as  in  other  cases 
of  indebtedness.      (February  20,   1861,   58  v.  20,   §§   5,  6;    S.  &  S.   108,   109.) 

§  3757.  THE  BOARD  OF  MILITARY  ACADEMIES;  HOW  CONSTITUTED, 
ETC.  —  The  academic  board  of  an  institution  incorporated  for  military  and  poly- 
technical  education  shall  consist  of  the  superintendent  of  the  institution,  the  com- 
mandant of  cadets,  and  the  professors,  and  may  make  and  enforce  rules  and 
regulations  for  the  government  of  cadets;  but  such  rules  and  regulations  must  be 
first  submitted  to  and  approved  by  the  governor  of  the  state.  (April  16,  1867,  64  v. 
239,  §§   1,  2;    S.  &  S.   109.) 

§  3758.  BOARD  OF  VISITORS:  HOW  CONSTITUTED.— The  board  of  visitors 
of  such  institution  shall  consist  of  the  governor,  who  shall  be  ex-officio  a  member  and 
the  president  of  the  board,  of  two  other  persons  to  be  named  by  the  governor,  and 
such  other  persons  as  the  superintendent  of  the  institution  may  appoint.  (April  16, 
1867,  64  v.  239,   §  3;  S.  &  S.  110.) 

§  3759.  DUTIES  OF  BOARD  OF  VISITORS.  —  The  board  of  visitors  shall  meet 
annually  at  the  institution,  on  the  first  day  of  the  annual  commencement  exercises, 
and  examine  into  the  condition  of  the  classes,  quarters,  and  commons,  and  the  disci- 
pline, drill,  records  of  standing  in  study,  and  conduct  of  the  cadets,  and  shall  report 
on  the  same  to  the  legislature  at  its  next  annual  session;  but  the  board  of  visitors. 
or  any  member  thereof,  may  visit  and  inspect  the  institution  at  any  time.  (April  16. 
1867,  64  v.  239,  §  4;    S.  &  S.   110.) 

§  3760.  HOW  THE  TERM  OF  OFFICE  OF  DIRECTORS  OR  TRUSTEES  MAY 
BE  FIXED.  —  At  a  regular  meeting  for  the  election  of  directors  or  trustees  of  any 
college  or  other  institution  of  learning,  the  authorized  voters  may  determine,  by  vote. 
whether  the  election  of  directors  or  trustees  shall  be  held  annually,  if  the  term  of 


480  Private  Corporations  in  Ohio. 

Location  —  Sale  of  Property  —  Articles,  Filing,  etc.,   §§  3761-3762a. 


their  election  is  for  a  longer  period  than  one  year,  and  also  what  proportion  of  the 
entire  board  shall  be  elected  annually;  at  the  first  election  held  under  the  provisions 
of  this  section  the  voters  shall  designate  upon  their  ballots  who  shall  serve  for  one 
year,  who  for  two  years,  and  who  for  three  years;  and  vacancies  caused  by  expira- 
tion of  term  of  office  shall  be  filled  by  election  annually  thereafter.  (April  11,  1873, 
70  v.   125,  §  1.) 

§  3761.  CERTAIN  CORPORATIONS  MAY  CHANGE  LOCATION.  —  The  trustees 
of  colleges  and  other  institutions  of  learning  not  endowed  by  voluntary  contributions, 
which  have  been  established  under  special  acts  of  incorporation,  and  which  by  the 
provisions  of  such  acts  are  located  at  particular  places,  may  change  the  location 
thereof  to  such  other  places  as  they  may  deem  proper,  and  erect  and  maintain  acade- 
mies and  other  schools  auxiliary  thereto.     (April   11,  -1873,  70  v.   248,   §  1.) 

§  3762.  SALE  AND  DISTRIBUTION  OF  THE  PROPERTY  OF  CERTAIN  COR- 
PORATIONS. —  The  trustees  of  any  university,  college,  or  other  institution  of  learn- 
ing, incorporated  by  the  authority  of  this  state  under  special  charter,  owned  in  shares 
or  stock  subscribed  or  taken,  may  dispose  of  its  property  at  public  sale,  upon  such 
terms  as  to  payment  as  the  stockholders  thereof,  by  a  vote  of  three-fourths  of  the 
shares  or  stock  of  the  institution,  may  direct,  after  giving  public  notice  of  the  same, 
by  publication,  for  six  consecutive  weeks  in  some  newspaper  published  in  the  county 
where  the  institution  is  located,  if  one  is  published  therein,  and  if  not,  then  in  some 
newspaper  published  in  this  state,  and  of  general  circulation  in  such  county,  which 
notice  shall  contain  a  full  statement  of  the  terms,  time,  and  place  of  sale,  and  the 
action  of  the  trustees  as  aforesaid;  and  the  trustees  may  close  up  the  corporate  exist- 
ence of  such  institution,  and  make  an  equitable  division  and  distribution  of  the  pro- 
ceeds of  the  sale  among  all  the  holders  of  shares  or  stock,  after  the  payment  of  the 
just  debts  of  the  corporation.     (March  22,  1870,  67  v.  24,  §  1.) 

§  3762a.  CERTAIN  COLLEGES,  WHOSE  ARTICLES  OF  INCORPORATION  ARE 
NOT  ON  FILE  IN  THE  OFFICE  OF  THE  SECRETARY  OF  STATE,  MAY  FILE 
SAME  THERE  AND  AMEND.  —  The  trustees  of  any  university,  college  or  institu- 
tion of  learning,  incorporated  by  the  authority  of  this  state,  or  under  the  general  cor- 
poration laws  thereof,  owned  in  shares  of  stock  subscribed  and  paid  up  in  full,  by  a 
majority  of  the  owners  of  such  stock,  for  the  sole  purpose  of  promoting  education, 
religion  and  morality,  or  the  fine  arts,  exclusively  among  males  or  females,  may,  on 
the  written  petition  of  the  owners  of  a  majority  of  such  stock  filed  before  them,  or 
on  the  vote  of  the  owners  of  the  majority  of  such  shares  of  paid  up  stock  at  any  gen- 
eral meeting  of  the  stockholders  called  for  such  purpose,  after  thirty  days'  notice 
published  in  some  newspaper  published  and  of  general  circulation  in  the  county,  by 
the  board  of  trustees,  may  change  the  name  and  enlarge  the  purposes  and  objects  of 
any  such  university,  college  or  institutions,  by  amendments  to  its  charter,  approved 
by  the  owners  of  the  majority  of  such  stock  for  the  change  of  the  name  and  the 
enlargement  of  the  purpose  and  object  of  such  university,  college  or  institution  of 
learning,  so  that  all  the  educational  rights  and  privileges  thereof  may  be  bestowed 
in  the  co-equal  and  co-ordinate  education  of  both  sexes.  When  such  amendment  is 
adopted  and  the  original  articles  of  incorporation  of  said  corporation  have  not  been 
filed  and  recorded  in  the  office  of  the  secretary  of  state,  a  copy  of  such  amendment 
and  a  copy  of  the  original  articles  of  incorporation  of  said  corporation,  with  a  cer- 
tificate to  each  of  them  thereto  affixed,  signed  by  the  president  and  secretary  of  said 
corporation,  and  sealed  with  the  corporate  seal,  if  any  there  be,  stating  the  fact  and 
date  of  the  adoption  of  such  amendment,  and  that  such  copy  of  said  amendment,  and 
that  such  copy  of  said  original  articles  of  incorporation  of  said  corporation  are  and 
is  a  true  copy  of  the  originals,  shall  be  recorded  in  the  office  of  the  secretary  of  state, 
and  when  so  recorded,  and  not  until  then,  said  amendment  shall  become  and  be  in 


Colleges  and  [nstitutions  oi    Learnini  481 


Name  and   Purposes  —  Medical   Colleges,   Bodies   for, 


law  the  sole  articles  of  incorporation  of  said  corporation;    and  all   the  prop 
and  personal,  and  the  title  thereunto,  and  all  the  rights  and  credil 
and  rights  of  stockholders,  corporate  franchises,  and  all  endowment  fin 
gift  or  bequest,  or  legacies  or  mortgage  securities  and  promissory 
of  every  kind  belonging  to,  vested  in  or  claimed,  or  possessed  by  the 
corporation,  shall  by  said  amendment  pass  to,  be  assigned  isferred  a] 

in  and  held,  enjoyed  and  exercised  by  the  said  corporation  named,  created  and  organ- 
ized by  said  amendment  for  the  promotion  of  all  the  objects  and  purposes  oi 
ation  and  organization.     For  recording  such  amendments  and  copies  of  such 
articles  of  incorporation,  and  for  furnishing  a  certified  copy  or  copies  thereof,  the  sec- 
retary of  state  shall  receive  a  fee  of  twenty  cents  per  hundred  words,  to  be  in  no  case 
less  than  five  dollars.     (April  14,  1888.  85  v.  270.) 

§  3762b.  COLLEGES  MAY  CHANGE  NAME  AND  PURPOSE.  WHEN;  PRO- 
CEDURE; FEES. —  That  the  board  of  trustees  of  any  university,  college  or  institu- 
tion of  learning,  incorporated  by  the  authority  of  this  state,  or  under  the  general 
corporation  laws  thereof,  for  the  sole  purpose  of  promoting  education,  religion  and 
morality,  or  the  fine  arts,  may,  at  any  regular  or  special  meeting  of  such  board  of 
trustees,  called  for  such  purpose,  after  thirty  days'  actual  notice  to  each  and  all  of 
such  trustees,  change  the  name  and  enlarge  the  purposes  and  objects  of  any  such  uni- 
versity, college  or  institution  of  learning,  by  amendment  to  its  charter,  approved 
by  a  majority  of  such  board  of  trustees  at  such  regular  or  special  meeting,  so  called 
and  so  notified,  for  the  change  of  such  name  and  the  enlargement  of  the  purposes  and 
objects  of  such  university,  college  or  institution  of  learning.  When  such  amendment 
is  so  adopted  by  the  board  of  trustees  of  any  university,  college  or  institution  of 
learning,  already  incorporated  by  the  authority  of  this  state,  or  under  the  general 
corporation  laws  thereof,  a  copy  thereof,  with  a  certificate  thereto  affixed,  signed  by 
the  president  and  secretary  of  such  board  of  trustees,  and  sealed  with  the  corporate 
seal,  if  any  there  be,  stating  the  fact  and  date  of  such  amendment,  and  that  such  copy 
is  a  true  copy  of  the  original  amendment,  shall  be  filed  and  recorded  in  the  office  of 
the  secretary  of  state,  and  when  so  filed  and  recorded,  and  not  until  then,  said  amend- 
ment shall  become  and  be  in  law  an  integral  part  of  the  articles  of  incorporation  of 
said  corporation,  and  all  the  property,  real  and  personal,  the  title  thereto,  and  all  the 
rights  and  credits,  corporate  powers  and  franchises,  and  all  endowment  fund  or  funds, 
gifts  and  bequests,  legacies,  mortgage  securities  and  promissory  notes,  and  all  powers, 
rights  and  privileges  of  every  kind  belonging  to,  vested  in,  claimed  or  possessed  by 
said  original  corporation  shall,  by  said  amendment,  pass  to,  be  assigned,  transferred 
and  vested  in,  and  held,  enjoyed  and  exercised  by  the  said  corporation,  named,  cre- 
ated and  organized  by  said  amendment  for  the  promotion  of  all  (the)  objects  of  its 
creation  and  organization.  And  said  new  corporation  shall  be  liable  for  and  perform 
all  the  lawful  obligations,  contracts  and  undertakings  of  said  original  corporation. 
For  recording  such  amendment  and  furnishing  a  certified  copy  or  copies  thereof,  the 
secretary  of  state  shall  receive  a  fee  of  twenty  cents  per  hundred  words,  to  be  in  no 
case  less  than  five  dollars.     (February  10,  1890,  87  v.  8.) 

§  3763.  RESTRICTIONS  UNDER  WHICH  MEDICAL  COLLEGES  AND  TEACH- 
ERS MAY  RECEIVE  BODIES  FOR  DISSECTION.  —  All  superintendents  of  city 
hospitals-,  directors  or  superintendents  of  city  or  county  infirmaries,  directors  or  super- 
intendents of  work-houses,  directors  or  superintendents  of  asylums  for  the  insane, 
or  other  charitable  institutions  founded  and  supported  in  whole  or  in  part  at  public 
expense,  the  directors  or  warden  of  the  penitentiary,  township  trustees,  sheriffs,  or 
coroners,  in  possession  of  bodies  not  claimed  or  identified,  or  which  must  be  buried  at 
the  expense  of  the  county  or  township,  shall,  before  burial,  hold  such  bodies  not  less 
than  thirty-six  hours  and  shall  notify  the  professor  of  anatomy  in  any  college  which 
by  its  charter  is  empowered  to  teach  anatomy,  or  the  president  of  any  county  medical 

LAW   GOV.    PRIV.    COR. —  31. 


482  Private  Corporations  in  Ohio. 

i       _ 

Medical   Colleges,    Bodies   for — Organic   Rules,    §§    3764-3767. 

society  of  the  fact  that  such  bodies  are  being  so  held  and  shall,  before  or  after  burial, 
by  such  said  superintendent,  director,  or  other  officer,  on  the  written  application  of 
the  professor  of  anatomy,  the  president  of  any  county  medical  society,  deliver  to  such 
(  said  professor,  or  president  for  the  purpose  of  medical  or  surgical  study  or  dissection, 
the  body  of  any  person  who  has  died  in  either  of  said  institutions  from  any  disease, 
not  infectious,  if  such  body  has  not  been  requested  for  interment  by  any  person  at  his 
own  expense; 
,  BODY  TO  BE  DELIVERED  TO  CLAIMANT.—  if  the  body  of  any  deceased  per- 

son so  delivered,  be  subsequently  claimed,  in  writing,  by  any  relative  or  other  person 
for  private  interment,  at  his  own  expense,  it  shall  be  given  up  to  such  claimant; 

INTERMENT  OF  BODY  AFTER  EXAMINATION  OR  DISSECTION.  —  after 
such  bodies  shall  have  been  subjected  to  such  medical  or  surgical  examination  or  dis- 
section, the  remains  thereof  shall  be  interred  in  some  suitable  place  at  the  expense 
of  the  pai'ty  or  parties  in  whose  keeping  said  corpse  has  been  placed. 

NOTIFICATION  TO  RELATIVES  OF  DECEASED  PERSON.  —  In  all  cases  it 
shall  be  the  duty  of  the  officer  having  such  body  under  his  control  to  notify  or  cause 
to  be  notified,  in  writing,  the  relatives  or  friends  of  such  deceased  person; 

PENALTY  FOR  REFUSAL  TO  DELIVER  BODY,  OR  ACCEPTANCE  OF  CON- 
SIDERATION FOR  SAME. —  and  any  superintendent,  coroner,  or  infirmary  director, 
sheriff,  or  township  trustee,  failing  or  refusing  to  deliver  such  bodies  when  applied 
for,  as  herein  provided,  or  who  shall  charge,  receive,  or  accept  money,  or  other  valu- 
able consideration  for  the  same,  shall  be  fined  in  any  sum  not  exceeding  one  hundred 
dollars,  and  r.ot  less  than  twenty-five  dollars,  or  be  imprisoned  in  the  county  jail  not 
exceeding  six  months;  provided,  however,  that  in  no  case  shall  the  body  of  any  such 
deceased  person  be  delivered  until  twenty-four  hours  after  death. 

BODY  OF  STRANGER  OR  TRAVELER.  —  The  bodies  of  strangers  or  travelers, 
who  die  in  any  of  the  institutions  herein  named,  shall  not  be  delivered  for  the  pur- 
pose of  dissection,  except  said  stranger  or  traveler  belong  to  that  class  commonly 
known  as  tramps;  and  all  bodies  delivered  as  herein  provided  shall  be  used  for  medi- 
cal, surgical  and  anatomical  study  only,  and  within  this  state, 

UNLAWFUL  TO  HAVE  UNAUTHORIZED  BODY  IN  POSSESSION;  PENALTY. 
—  and  the  possession  of  the  body  of  any  deceased  person  for  the  above  purposes,  and 
not  authorized  under  this  section,  shall  be  unlawful,  and  the  detention  of  the  body  of 
any  deceased  person,  claimed  by  relatives  or  friends  for  interment  at  their  expense, 
shall  also  be  unlawful,  and  the  person  so  detaining  said  body  unlawfully,  shall  be 
fined  in  any  sum  not  exceeding  one  hundred  dollars,  nor  less  than  twenty-five  dollars, 
or  be  imprisoned  in  the  county  jail  not  exceeding  six  months.  (Api'il  5,  1898,  93  v. 
84;  February  19,   1881,  78  v.  33;  R.  S.   1880;  March  25,   1870,  67  v.  25,   §   1.) 

§   3764.     PENALTY  FOR  HAVING  UNLAWFUL  POSSESSION  OF  CORPSE.  — 

Any  person,  association,  or  company,  having  unlawful  possession  of  the  body  of  any 
deceased  person  shall  be  jointly  and  severally  liable  with  any  and  all  other  persons, 
associations,  and  companies  that  had  or  have  had  unlawful  possession  of  such  corpse 
in  any  sum  not  less  than  five  hundred  dollars  and  not  more  than  five  thousand  dollars, 
to  be  recovered  at  the  suit  of  the  personal  representatives  of  the  deceased  in  any  court 
of  competent  jurisdiction,  for  the  benefit  of  the  next  of  kin  of  deceased. 

When    section   applicable. 

See   Carter   v.    Zanesville,   59   Oh.    St.    170    (1898). 

§  3767.  ORGANIC  RULES  WHICH  MAY  BE  PRESCRIBED  IN  CERTAIN 
ARTICLES  OF  INCORPORATION.  —  An  association  incorporated  for  the  purpose  of 
receiving  gifts,  devises  or  trust  funds  to  erect,  establish,  or  maintain  an  academy  in 
any  department  of  fine  arts  or  a  gallery  for  the  exhibition  of  paintings,  or  sculpture 
or  works  of  art,  or  a  museum  of  natural  or  other  curiosities,  or  specimens  of  art  or 


Colleges  and  Institutions  oi    Learning.  483 


Objects  —  Mechanics'  Institutes  —  Accounts,  etc.,   SS  3768-3'i  i 

nature  promotive  of  knowledge,  or  a  law  or  other  library,  or  courses  of  lectu 
science,  art,  philosophy,  natural  history,  or  law,  and  to  open  the  ■  italic 

on  reasonable  terms,  or  an  industrial  training  school,  or  a  mechai 
advancing  the  best  interest(s)  of  mechanics,  manufacturers  and  artisans,  by 
general  diffusion  of  useful  knowledge  in  those  classes  of  the  community,   or   hi 
for  indigent  and  aged  widows  and  unmarried  women  and  whose  directors  or  tru 
may  be  of  either  sex,  may  in  its  articles  of  incorporation  prescribe  the  tenure  of  office 
of  the  trustees  or  directors,  the  mode  of  appointing  or  electing  successors,  the  admin- 
istration and  management  of  the  property,  and  trust  and  other  funds  of  the  cor; 
tion,  and  such  other  organic  rules  as  may  be  deemed  expedient  or  acceptable  to  donori 
which  shall  be  and  remain  the  permanent  organic  law  of  the  corporation.     (Februaiy 
21,   1887,  84  v.  31;  March  26,   1886,  83  v.  40;  R.  S.   1880;  75  v.   135,         1.  3.) 

§  3768.  MAY  ADD  TO  THE  OBJECTS  OF  THE  CORPORATION;  ACCEPTANCE 
OF  STATUTORY  PROVISIONS.  —  Such  corporations  may  by  certificate,  duly 
acknowledged  by  the  trustees  or  directors,  and  filed  in  the  office  of  the  secretary  of 
state,  add  to  the  original  objects  and  purposes  of  the  corporation  any  of  the  several 
objects  and  purposes,  mentioned  in  the  preceding  section  which  were  not  provide': 
by  the  articles  of  incorporation,  and  any  such  corporation  heretofore  incorporated 
under  the  laws  of  the  state  may  by  certificate,  reciting  the  organic  rules  adopted  by 
such  corporation  as  its  permanent  organic  law,  and  duly  acknowledged  by  the  trustees 
or  directors,  and  lodged  in  the  office  of  the  secretary  of  state,  accept  the  provisions  of 
the  preceding  section.     (March  26,  1886,  83  v.  41;  May  7,  1878,  75  v.   135, 

§  3768-1.  Sec.  1.  AUTHORIZING  CERTAIN  MECHANICS'  INSTITUTES  TO 
BORROW  MONEY;  LIABILITY  OF  DIRECTORS  AND  TRUSTEES.  —  Any  mechan- 
ics' institute,  incorporated  under  the  laws  of  this  state  prior  to  the  year  eighteen  hun- 
dred and  fifty-one  (1851),  be  and  it  is  hereby  authorized  and  empowered  to  borrow 
money,  issue  bonds  or  notes  therefor,  at  no  more  than  the  legal  rate  of  interest,  and 
secure  the  same  by  mortgage  upon  its  real  estate.     (April  9,   1885,  82  v.  118.) 

§  3768-2.  Sec.  2.  DIRECTORS  NOT  PERSONALLY  LIABLE.  —  The  directors 
and  trustees  of  such  corporation  shall  not  be  personally  liable  for  debts  contracted  by 
virtue  of  this  act.     (April  9,  1885,  82  v.   118.) 

§  3769.  ACCOUNTS  OF  RECEIPTS  AND  DISBURSEMENTS.  —  The  officers  of 
the  corporation  charged  or  intrusted  with  the  receipts  and  disbursements  of  its  funds 
cr  property  shall  make  and  keep  like  accurate  and  detailed  accounts  of  such  funds, 
and  the  receipts  and  disbursements  thereof,  as  are  required  to  be  kept  by  the  fund  com- 
missioners of  the  state;  the  trustees  shall,  on  or  before  the  third  Monday  in  January 
of  each  year,  file  with  the  clerk  of  the  court  of  common  pleas  of  the  county  in  which 
the  corporation  is  located  an  abstract  of  their  account,  which  abstract  shall  correspond 
in  date,  amount,  person  to  whom  paid,  and  from  whom  received,  and  on  what  account, 
with  the  voucher  taken  or  given  on  account  of  such  receipts  and  disbursements;  they 
shall  at  the  same  time,  annually,  file  in  such  clerk's  office  a  report  of  the  names  of  the 
donors,  the  kind,  amount,  or  value  of  gifts  of  each,  and  a  brief  statement  of  the  con- 
ditions and  purposes  of  the  gifts;  and  the  filing  of  such  abstract  and  report,  and  the 
supplying  of  any  omission  in  either,  may  be  enforced  by  order  and  attachment  of  the 
court  of  common  pleas  of  the  proper  county,  against  the  trustees,  on  motion  of  any 
respectable  citizen.     (May  7,  1878,  75  v.   135,  §  4.) 

§  3770.  TRUSTEES  INELIGIBLE  TO  OTHER  OFFICE. —No  trustees  shall  be 
eligible  to  any  office  or  agency  of  the  corporation  to  which  any  salary  or  emolument 
is  attached,  nor  shall  the  trustees  be  allowed  any  salary,  emoluments,  or  perquisites, 
except  the  right  of  free  ingress  to  the  grounds,  rooms,  and  buildings  of  the  corpora- 
tion.    (May  7,  1878,  75  v.  135,  §  5.) 


484  Private  Corporations  in  Ohio. 


Officers,    Duties   of  —  Trustees  —  Charitable  Trusts,    §§   3771-1. 


§  3771.  ATTORNEY-GENERAL  MAY,  BY  ACTION,  ENFORCE  DUTIES  OF 
OFFICERS.  —  On  application  to  the  attorney-general  of  five  citizens  of  the  proper 
county,  in  writing,  verified  by  the  oath  or  affirmation  of  one  of  them,  setting  forth 
specific  charges  against  any  of  the  fiscal  or  other  agents  or  trustees  of  such  corpora- 
tion, involving  a  breach  of  trust  or  duty,  he  shall  give  notice  thereof  to  the  trustees 
or  agents  complained  of,  and  inquire  into  the  truth  of  such  charges,  and  for  this  pur- 
pose he  may  receive  affidavits,  or  enforce,  by  process  from  the  court  of  common  pleas 
of  Franklin  county,  the  production  of  papers  and  the  attendance  of  witnesses  before 
him;  and  if,  on  testimony  or  other  evidence,  he  believes  the  charges,  or  any  of  them, 
to  be  true,  he  shall  proceed,  by  action  in  that  court,  in  the  name  of  the  state,  against 
the  delinquent  trustee  or  trustees,  fiscal  agent  or  agents,  and,  on  the  hearing,  the 
court  may  direct  the  performance  of  any  duty,  or  the  removal  of  all  or  any  of  the 
agents  or  trustees,  and  decree  such  other  and  further  relief  as  may  be  equitable. 
(May  7,  1878,  75  v.  135,  §  6.) 

§  3771a.  HOW  NUMBER  OF  TRUSTEES  OF  CERTAIN  COLLEGES  IN- 
CREASED. —  The  board  of  trustees  of  any  university  or  college  heretofore  incorpo- 
rated, but  not  under  the  patronage  of  conferences  or  other  ecclesiastical  bodies  of,  any 
religious  denomination,  as  described  in  section  3736,  may  increase  the  number  of  such 
trustees  to  twenty-four,  exclusive  of  the  president,  or  a  less  number,  and  may  divide 
said  trustees  into  six  classes,  each  class  to  serve  six  years,  and  one  class  to  be  chosen 
each  year,  for  said  term;  but  one  trustee  of  each  class  may  be  chosen  by  the  votes 
of  the  alumni  of  such  university  or  college,  if  the  board  of  trustees  shall  so  provide 
by  by-laws,  in  which  case  it  shall  also  be  the  duty  of  the  board  of  trustees  to  provide,, 
by  such  by-laws,  a  method  of  nominating  and  electing  such  appointee  of  the  alumni.) 
The  president  of  such  university  or  college  shall,  ex  officio,  be  a  trustee  perpetually,) 
and  shall  not  be  included  in  the  classes  going  out  in  rotation.  If  it  shall  be  necessary, 
in  the  first  enlargement  of  the  board  of  trustees,  under  this  section,  to  distribute  new 
members  to  the  several  classes,  whose  terms  shall  expire  by  rotation,  the  distribution 
may  be  made  in  such  manner  as  the  board  may  direct,  so  that  no  trustee  shall  be 
elected  for  a  longer  term  than  six  years.  (April  11,  1890,  87  v.  188;  April  15,  1889, 
86  v.  341.) 

An  Act  to  Provide  for  flic  Regulation  and  Government  of  Chatauqua  As- 
semblies, So-Called,  or  Other  Institutions  or  Gatherings  Held  for  the 
Purpose  of  Dissemination  or  Encouragement  of  Religion,  Art,  Sci- 
ence, Literature,  etc.,  Where  The  Grounds  or  the  Premises  are  in 
Tiro  or  More  Adjoining  Counties,  by  Empowering  Such  Organization 
to  Adopt  Rules;  Providing  What  Shall  be  Violations  Thereof,  Giving 
Justices  of  the  Peace,  Mayors,  etc..  Jurisdiction  of  Such  Offences, 
and  Authorizing  the  Appointment  of  Special  Policemen.  (April  14, 
1902,  95  v.  133.) 
Note. —  On  account  of  its  length  the  text  of  this  act  is  omitted,  a  mere  reference  is  deemed 
sufficient. 

In    lei   to  Pro vide  for  the  Administration    of   Charitable   Trusts  in   Certain 

Cases. 
Be  it  enacted  by  the  General  Assembly  of  the  State  of  Ohio: 

Section  1.  ADMINISTRATION  OF  CHARITABLE  TRUSTS  IN  CERTAIN 
CASES.  —  Whenever,  by  the  last  will  and  testament  of  any  person  which  has  hereto- 
fore been,  or  shall  hereafter  be,  duly  admitted  to  probate  in  this  state  or  elsewhere, 
any  decedent  has  devised  or  bequeathed,  or  may  devise  or  bequeath,  his  or  her  prop- 
erty, or  any  portion  thereof,  for  charitable  uses  within  this  state,  or  for  the  estab- 
lishment and  maintenance  of  any  industrial  or  educational  school  or  institution  to 


Colleges  axd  Institutions  of  Learning.  485 

Charitable  Trusts,  Corporation  to  Hold,  etc.,   §§  2  4. 

be  located  at  any  place  within  this  state;  and  whenever,  in  any  such  will  and  testa- 
ment it  has  been,  or  may  be,  provided  that  the  executor  or  executors  thereof  shall 
organize  a  corporation  under  the  laws  of  this  state  for  the  purpose  of  receiving  the 
property  so  devised  or  bequeathed,  and  carrying  out  the  charitable  purposes  in  such 
will  expressed,  or  establishing  and  maintaining  the  institution  or  school  therein  pro- 
vided for,  and  such  will  further  provides  for  the  management  of  such  corporation  by 
a  board  of  trustees  or  directors,  consisting,  in  part,  of  officials  of  this  state,  of  the 
county  in  which  such  charities  are  to  be  administered  or  such  institution  or  school 
located,  the  officials  of  any  municipal  incorporation  in  said  county,  and  the  member 
of  congress  for  the  district  of  which  said  county  forms  a  part,  or  any  of  such  officials, 
and  names  any  other  person  or  persons  to  be  associated  with  said  officials  or  any  of 
them,  and  provides  for  the  appointment  of  a  successor  or  successors  to  the  person 
or  persons  so  appointed  to  act  with  such  officials  in  any  manner  specified  in  said  will, 
such  executor  or  executors,  or  his  or  their  successors  in  office,  and  the  persons  here- 
inafter named,  may  constitute  themselves  a  body  corporate,  with  the  general  power 
of  benevolent  incorporations.      (March   19,   1902,  95  v.   61.) 

§  2.  ARTICLES  OF  INCORPORATION  TO  BE  FILED.  —  Such  executor  or  execu- 
tors, or  his  or  their  successors,  shall  associate  with  himself  or  themselves  not  more 
than  two  citizens  and  residents,  other  than  the  persons  named  in  said  will,  of  the 
county  in  which  such  charities  are  to  be  administered,  or  such  institution  or  school 
located,  and  he  or  they  and  such  associates  shall  execute  and  acknowledge  and  file 
with  the  secretary  of  state  of  the  state  of  Ohio,  articles  of  incorporation;  or,  in  case 
he  or  they  do  not  file  such  articles  within  sixty  days  from  and  after  the  passage  of 
this  act,  or,  in  case  of  any  will  which  may  hereafter  be  so  probated,  within  six  months 
of  such  probate,  then  a  minority  of  the  officials  for  the  time  being  named  :::  any  such 
will  or  testament  may  execute,  acknowledge  and  file  such  articles,  which  shall  in 
either  case  set  forth: 

1.  WHAT  SHALL  BE  SET  FORTH  THEREIN.  —  A  copy  of  the  will  or  testa- 
ment for  the  carrying  out  of  whose  provisions  the  incorporation  is  organized. 

2.  The  name  of  the  corporation,  which  shall  include  the  name  of  the  maker  of 
such  will,  unless  otherwise  therein  provided;  and 

3.  The  location  of  such  corporation.      (March  19,  1902,  95  T.  61.) 

§  3.  WHO  MEMBERS  AND  DIRECTORS  OF  CORPORATION.—  The  officers  or 
officials  named  in  such  will  or  testament,  together  with  the  persons  therein  named, 
and  in  case  the  articles  are  filed  by  the  executor  or  executors  as  hereinbefore  pro- 
vided, the  citizens  of  said  county,  not  exceeding  two  in  number,  who  execute  and 
acknowledge  the  same  with  such  executor  or  executors,  shall  thereupon  become  the 
members  and  directors  of  such  corporation;  and  as  the  term  of  any  official  expires, 
his  successor  shall  thereupon,  by  virtue  of  his  office,  become  one  of  the  members  and 
directors  of  such  corporation,  so  that  the  officials  named  in  said  will  shall,  for  the 
time  being  and  from  time  to  time,  be  directors  of  said  incorporation.  Upon  the  death 
or  resignation  of  the  person  or  persons  named  in  such  will  as  directors  associated 
with  such  officials,  his  or  their  successor  or  successors  shall  from  time  to  time  be 
appointed  in  the  manner  provided  in  such  will  or  testament,  if  provision  therefor 
be  made,  otherwise  by  the  board  of  directors,  and  he  or  they  shall  thereupon  become 
members  and  directors  of  such  incorporation.  Upon  the  death  or  resignation  of  the 
two  citizens  of  the  county,  or  either  of  them,  who  have  become  directors  by  reason 
of  joining  in  said  articles  of  incorporation,  his  or  their  successor  or  successors  shall 
from  time  to  time  be  chosen  by  the  board  (of)  directors,  and  he  or  they  shall  thereupon 
become  members  and  directors  of  such  incorporation.      (March  19,   1902,  95  v.  62.) 

§  4.  ATTORNEY  GENERAL  GIVEN  POWER  TO  BRING  PROCEEDINGS  TO 
ENFORCE  SUCH  DEVISE  OR  BEQUEST.  —The  attorney  general  of  the  state  of  Ohio 
shall  in  his  official  capacity  have  power  to  bring  proceedings  in  any  court  of  record 


486  Private  Corporations  in  Ohio. 


Charitable   Trusts,    Corporations   to   Hold,    etc.,    §§    5-8. 


to  enforce  any  such  devise  or  bequest,  whenever  he  deems  such  action  necessary  for 
the  protection  and  carrying  out  of  the  purposes  named  in  said  last  will  and  testa- 
ment, without  waiting  for  the  organization  of  such  corporation.  (March  19,  1902, 
95  v.  62.) 

§  5.  OFFICERS  OF  CORPORATION".  —  The  officers  of  such  corporation  shall 
consist  of  a  president,  secretary  and  treasurer,  and  such  other  officers  as  the  board 
of  directors  may  deem  necessary.  The  president  shall  be  a  member  of  the  board  of 
directors.      (March  19,  1902,  95  v.  62.) 

§  6.  CONSTITUTION  AND  BY-LAWS.  —  The  board  of  directors  may  adopt,  and 
from  time  to  time  change,  such  organic  rules,  regulations  and  by-laws  as  they  may 
deem  expedient,  not  inconsistent  with  the  constitution  and  laws  of  this  state.  (March 
19,  1902,  95  v.  62.) 

§  7.  DIRECTORS  TO  MEET  WHERE.  —  Until  the  estate  shall  be  finally  settled, 
the  board  of  directors  may  meet  in  the  state  of  the  domicile  of  the  testator.  (March 
19,  1902,  95  v.  62.) 

§  8.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage.  (March 
19,   1902,  95  v.  62.) 

Bequest   to   unformed    corporation. 

See  Trustees  v.  Zanesville,   etc.,  Mfg.  Co.,  9  Oh.   203    (1839)  .—  Thomp.    on  Corporations, 
§  5829. 


PART  XIX. 

RELIGIOUS  AND  OTHER  SOCIETIES. 

§  3772.        When  language  of  church  service  may  be  changed. 

§3773.        When  and  how  religious  or  educational  corporation  may  sell  cemetery  groun 

§  3773-1.     Conveyance  of  public  burying  ground  from  religious  or  benevolenl  societies  to  town- 
ship using  name. 

§3774.         When  trustees  may  apply  to  court  for  order  to  sell  property. 

§3775.         Notice  by  publication,  and  judgment. 

§3770.         When  trustees  may  convey   church  sites  to  congregation;   church  site  subject  to 
payment  of  judgment. 

§  3770-1.     How  effected. 

§3777.         Consolidation  of  religious  corporations. 

§  3778.         Record  of  proceedings  to  be  certified,  etc. 

§  377!).         Articles  of  incorporation,  and  filing  of  same. 

§  3779-1.     Lands  to  descend  in  trust. 

§  3779-2.     Trustees  may  sue  and  be  sued. 

§  3779-3.     Legal  title  to  religious  societies'  lands. 

§  3780.         Property  passes  to  new  corporation. 

§  3781.         Transfer  of  property  after  union  of  corporations. 

§  3782.         Notice  of  application  therefor. 

§  3783.         Associations  for  holding  donations  and  bequests. 

§  3784.         Endowment  fund  corporations. 

§  3785.         Power  of  trustees  of  such  corporations. 

§3780.         Powers  of  trustees  of  religious  society:   real  estate  liable  for  judgments  for  labor 
preformed,  etc. 

§  3787.         When  and  how  property  of  extinct  corporations  may  be  sold. 

§  3787a.       Trustees  of  extinct  parish,  congregations,  etc.;  duty  as  to  money  received  from  sale 
of  property. 

§  3787b.       Funds  arising  from  such  sale  to  be  under  control  of  presbytery,  synod,  etc. 

§  3788.         Who  to  be  parties  to  proceedings  for  sale. 

§  3789.         How  printing  and  publishing  houses  incorporated. 

§  3790.         Expired  corporations  may  have  benefit  of  last  section. 

§  3791.         Fiscal  trustees  of  women's  benevolent  associations. 

§  3792.         Powers  and  duties  of  fiscal  trustees. 

§  3793.         Other  associations  may  accept  these  provisions. 

§  3793a.       Consolidation  of  charitable  or  benevolent  associations.     Agreement  submitted  to 
members  of  separate  organizations. 

§  3793b.       Record  of  ratification  of  agreement. 

§  3793c.       Each  member  of  separate  associations  entitled  to   vote;   approval  of  proceedings, 
etc.     Agreement  filed  with  secretary  of  state. 

§  3793d.       Unperformed  acts  at  first  meeting  may  be  perfected  subsequently. 

§  3793e.       Recording  of  certificate  of  agreement.     Evidence  of  corporate  existence. 

§  3793f.       Constitution,  by-laws,  and  rules. 

§  3793g.       Rights,  etc..  of  new  corporation. 

§  3793h.       Property  held  in  trust  to  be  governed  by  original  terms. 

§  3793i.        Petition  for  conveyance  of  real  estate:  order  of  court;  decree  to  serve  as  convey- 
ance.    Defendants. 

§  3793j.       Notice  of  petition. 

§  3793k.       Subsequent  union  of  associations,  etc.,  with  corporation. 

L4S7] 


488  Private  Corporations  in  Ohio. 


Language  of  Church  Service — Sale  of  Cemetery,   §§   3772-3773. 


§  :>7!)4.  How  charitable  or  religious  societies  may  sell,  incumber,  etc.,  realty. 

§  3794a.  Interconveyance  of  property. 

§  :!7(.»4b.  Title  to  certain  transfers  of  real  estate  guaranteed.     Preamble. 

§  3794-1.  Women's  christian  associations  empowered  to  procure  homes  for  children. 

J  3795.  Notice  of  the  pendency  of  the  petition. 

§  3796.  Sales  to  be  confirmed  by  court. 

§  3796a.  Secret  benevolent  societies  empowered  to  invest  reserve  funds. 

§  3796b.  May  elect  trustees  to  take  charge  of  such  funds. 

§  3796c.  Society  to  fix  terms  of  trustees  and  define  their  duties,  powers,  etc. 

§  3790(1.  May  sue  and  be  sued. 

§  3796e.  Society  may  accept  donations;  may  pay  endowment  not  exceeding  $5,000. 

§  3772.    WHEN  LANGUAGE  OF  CHURCH  SERVICE  MAY  BE  CHANGED.  — 

Any  religious  society  incorporated  under  a  general  or  special  law  of  this  state,  and 
which  act  of  incorporation  prescribes  that  the  public  religious  services  of  such  society 
shall  be  conducted  in  any  other  than  the  English  language,  may  (at)  any  time,  by  a 
vote  of  a  majority  of  its  adult  members,  in  good  and  regular  standing,  who  speak 
such  prescribed  language,  decide  whether  its  public  religious  services  may,  at  any 
time,  be  conducted  in  any  other  than  such  prescribed  language.  (May  8,  1868,  65  v. 
163,  §  1;    S.  &  S.  162.) 

§  3773.  WHEN  AND  HOW  RELIGIOUS  OR  EDUCATIONAL  CORPORATION 
MAY  SELL  CEMETERY  GROUNDS.  —  When  a  religious  or  educational  corporation 
or  society  holds  any  lands  within  the  limits  of  any  city  or  village  which  has  (have) 
been  used  as  a  cemetery,  and  interments  in  which  have  been  prohibited  by  the  ordi- 
nances of  such  municipal  corporation,  the  trustees,  wardens,  vestry,  or  other  officers 
intrusted  with  the  management  of  the  property  of  such  corporation  or  society,  may 
file  a  petition  in  the  court  of  common  pleas  of  the  county  where  such  property  is  situ- 
ated, setting  forth  therein  a  description  of  the  property,  the  existence  of  such  ordi- 
nance, and  the  names  of  all  persons  holding  burial  privileges  in  such  cemetery,  so  far 
as  known  to  them,  and  if  such  privileges  are  held  by  persons  whose  names  are 
unknown  to  them,  the  facts  as  to  same,  shall  also  be  stated,  and  asking  that  the  value, 
if  any,  of  such  burial  privileges  shall  be  determined  by  the  court,  and  (the)  direction 
of  the  court  as  to  the  removal  of  the  bodies  interred  in  such  cemetery  to  other  ceme- 
teries, and  for  an  order  to  sell  such  property  free  from  such  burial  privileges.  Notice 
of  the  filing  of  such  petition  shall  be  given  by  publication  in  some  newspaper,  printed 
and  of  general  circulation  in  the  county  where  it  is  filed,  for  four  consecutive  weeks, 
setting  forth  the  object  and  prayer  thereof,  and  that  any  persons  claiming  an  interest 
in  the  subject  matter  of  the  petition,  or  burial  privileges  in  such  cemetery,  may  appear 
and  file  an  answer  therein,  within  six  weeks  from  the  date  of  the  first  publication  of 
such  notice,  and  after  which,  such  case  shall  stand  for  hearing;  and  if,  upon  final 
hearing  of  the  case,  it  shall  be  made  to  appear  that  such  cemetery  is  as  above 
described,  the  court  shall  proceed,  with  or  without  the  aid  of  a  jury,  as  the  parties 
appearing  may  elect,  and  hear  and  determine  the  value,  if  any,  of  such  burial  privi- 
leges, and  order  that  the  corporation  or  society  shall  pay  any  amount  so  ascertained 
to  the  holder  of  such  privilege,  and  the  court  may  order  said  cemetery  property  sold, 
free  from  such  burial  privileges,  and  may  direct  a  subdivision  of  same  into  lots  for 
the  purpose  of  sale,  and  shall  direct  the  application  of  the  money  arising  therefrom, 
to  such  uses  of  such  corporation  or  society,  for  pious  or  educational  purposes,  as  the 
trustees,  wardens,  vestry,  or  other  officers  conceive  to  be  most  for  the  interest  of  the 
corporation  or  society  to  which  the  cemetery  so  sold  belonged;  but  such  sale  shall  not 
be  made  until  the  bodies  interred  therein  are  removed  to  other  cemeteries,  as  directed 
by  the  court  on  the  final  bearing  of  the  case;  provided,  that  any  holder  of  such  burial 
privilege  who  may  not  have  appeared  in  such  proceedings,  and  who  has  not  waived 
his  right  to  receive  compensation  for  same,  may  assert  his  right  to  receive  from  such 


Religious  and  Othee  Societies.  489 

Cemeteries,   etc.— Sale  of  Property,   S§   3773-1-3775. 


society  or  corporation,  compensation  therefor,  within  five  years  after  the  final  entry 
to  such  proceedings.  (April  11,  1890,  87  v.  189;  April  13,  1889,  86  v.  294;  R.  S. 
1880;  April  3,  1867,  64  v.   103,  8   1 ;  S.  &  S.   164.) 

§  3773-1.  CONVEYANCE  OF  PUBLIC  BURYING  GROUND  FROM  RELIGIOUS 
OR  BENEVOLENT  SOCIETIES  TO  TOWNSHIPS  USING  SAME.  —  Whenever  any 
public  burying-ground  is  located  on  or  near  a  township  line,  and  is  used  by  the  people 
cf  two  or  more  townships  for  burying  purposes,  the  title  of  which  is  vested  in  any 
religious  or  benevolent  society,  such  religious  or  benevolent  society,  or  the  trustees 
thereof,  may  convey  the  same  to  the  trustees  of  such  townships  so  using  the  same, 
and  their  successors  in  office,  jointly;  and  the  trustees  of  such  township  shall  accept 
the  same  and  shall  jointly  take  possession  of  the  same,  and  take  care  and  keep  the 
same  in  repair,  as  required  as  to  public  burial-grounds  in  and  belonging  to  the  respec- 
tive townships,  and  each  township  shall  bear  an  equal  share  of  the  expense  thereof; 
and  the  trustees  of  each  township  shall  levy  needful  taxes  in  that  behalf,  not  exceed- 
ing in  any  one  year  more  than  one-fourth  of  one  per  cent.      (April  6,  1893,  90  v.   151.) 

§  3774.  WHEN  TRUSTEES  MAY  APPLY  TO  COURT  FOR  ORDER  TO  SELL 
PROPERTY.  —  When  the  title  to  any  real  estate  is  vested  in  trustees  for  the  use  of 
churches,  or  congregations  of  churches,  and,  owing  to  the  peculiar  situation  of  such 
real  estate,  or  the  nature  of  the  trust  or  conditions  upon  which  it  is  held,  it  has  not 
been  for  twenty  years  claimed  by  or  appropriated  to  the  use  of  churches  or  congrega- 
tions, as  originally  contemplated,  and  such  trustees  are  in  doubt  as  to  what  disposi- 
tion to  make  of  such  unappropriated  church  property,  and  when  any  public  church- 
site  and  meeting  house  has  been  abandoned  by  the  public  as  a  place  of  worship,  and 
the  trustees  invested  with  the  title  of  such  property  have  sold  the  same,  and  are  in 
doubt  as  to  what  disposition  to  make  of  the  proceeds  thereof,  such  trustees  may  file 
a  petition  in  the  court  of  common  pleas  of  the  county  where  the  property  is  situate, 
setting  forth  all  the  facts  in  the  case,  and  asking  the  direction  of  the  court  as  to  the 
proper  disposition  of  such  unappropriated  property  or  proceeds.  (April  10,  1868, 
65  v.  84,  §   1;  S.  &  S.  164.) 


Trustees  must  act  as  a  body. 

A  religious  corporation  can  only  be  bound 
by  its  board  of  trustees  acting  as  a  body,  and 
a  contract  made  by  members  of  the  board  of 
trustees,  constituting  a  majority  of  the  board, 
but  acting  separately  and  not  collectively  as  a 
board,  at  a  meeting  regularly  called,  will  not 
bind  the  corporation. —  Young  &  Fulton  Co. 
v.  Methodist  Church,  5  N.  P.  378  (1898). 

As  to  powers   of  trustees  and  members 
of   church    corporations. 

See  Wiswell  v.  Cong.  Church,  14  Oh.  St.  31 
(1863):  Mannix,  Assignee,  v.  Purcell  et  al., 
46  Oh.   St.   102    (1883);   Rike  et   al.  v.  Floyd 


et  al..  6  C.  C.  80  (1891)  ;  Miller  et  al.  v.  Elder 
et  al.,  7  C.  C.  97  (1893)  ;  s.  c,  3  C.  D.  681. 

As  to  rights  of  seceders. 

Members  who  secede  from  a  church  organ- 
ization thereby  forfeit  all  right  to  any  pari  <>t 
the  church  property. —  Wiswell  v.  Congrega- 
tional Church,  14  Oh.  St.  31  (1863);  Rike 
et  al.   v.  Floyd  et  al.,  6  C.  C.  80   (1891). 

"What  constitutes  secession? 

Wiswell  v.  Contrre£ratioiinl  Church.  14  Oh. 
St,  31  (1S63);  Rike  et  al.  v.  Floyd  et  al.,  6 
C.   C.    (1891). 

See  S   3794  and  notes  thereto. 

§  3775.  NOTICE  BY  PUBLICATION,  AND  JUDGMENT.  —Notice  of  the  filing 
of  such  petition  shall  be  given  by  publication  in  some  newspaper  printed  and  of  gen- 
eral circulation  in  the  county  where  it  is  filed,  for  four  consecutive  weeks,  setting* 
forth  the  object  and  prayer  thereof,  and  that  any  person,  church,  or  congregation, 
claiming  an  interest  in  the  subject  matter  of  such  petition,  may  appear  and  file  an 
answer  therein;  and  the  court,  on  final  hearing  of  the  case,  shall  make  such  order  or 
decree  therein  as  will  best  secure  the  rights  of  the  churches  or  congregations,  or  per- 
sons having  an  interest  therein,  and  as  will  best  promote  the  interests  of  religion, 
having  regard,  as  near  as  may  be,  to  the  nature  and  terms  of  the  original  trust  or 
purpose  with  which  such  property  or  proceeds  is  charged,  and  shall  tax  the  costs  of 
the  proceeding,  as  justice  and  equity  require.  (April  10,  1868,  65  v.  84,  §  2;  S.  &  S. 
165.) 


490  Private  Corporations  in  Ohio. 


Church  Sites,  etc.— Consolidations,   §§   3776^-3778. 


§  3776.  WHEN  TRUSTEES  MAY  CONVEY  CHURCH  SITES  TO  CONGREGA- 
TION; CHURCH  SITE  SUBJECT  TO  PAYMENT  OF  JUDGMENT.  —  When  any  real 
estate  has  been  purchased  by  or  conveyed  to  trustees  for  the  use  of  churches  or  con- 
gregations, as  sites  for  meeting-houses  to  be  erected  therecn,  and  such  churches  or 
congregations  have  erected  houses  of  worship  thereon,  but  no  power  is  possessed  by 
such  trustees  to  convey  such  real  estate  to  such  congregations,  or  to  the  trustees 
thereof,  such  trustees  may  convey  such  improved  sites  to  the  trustees  of  such  con- 
gregations; provided,  however,  that  where  an  incorporated  religious  congregation, 
society,  association,  sect,  or  denomination  use  or  occupy  as  and  for  a  place  of  worship, 
real  estate  which  is  held  in  trust  for  such  religious  congregation,  society,  association, 
sect,  or  denomination,  or  the  members  thereof,  as  and  for  a  place  of  worship,  and  a 
judgment  has  been,  or  may  be,  recovered  against  such  incorporation,  the  said  real 
estate,  together  with  such  edifice  and  improvements  thereon,  shall,  by  a  civil  action 
for  that  purpose,  be  subjected  to  the  payment  of  such  judgment  and  costs.  (March 
7,  1883,  80  v.  51;  R.  S.  1880;  April  10,  1868,  65  v.  84,  §  3;  S.  &  S.  165.) 

§  3776-1.  HOW  EFFECTED.  —  Any  ecclesiastical  society  incorporated  under  the 
laws  of  this  state  connected  with  a  church  of  Christ  in  this  state,  may  by  a  three- 
fourths  vote  of  its  adult  members  present  and  voting  at  a  meeting  warned  and  held 
for  that  purpose,  assign,  transfer  and  convey  to  the  church  with  which  it  is  con- 
cerned, and  which  is  incorporated  under  the  laws  of  this  state,  all  the  property  and 
estate,  real  and  personal,  and  trust  funds  of  said  society  to  be  held  by  said  corpora- 
tion under  the  trusts  and  for  the  same  uses  upon  which  the  same  had  heretofore  been 
held  by  such  society,  and  the  society  committee  or  trustees  are  fully  authorized  to 
make,  pursuant  to  such  vote,  any  and  all  conveyances  necessary  to  complete  such 
assignment  and  transfer;  but,  before  the  same  shall  be  effectual  a  certificate  of  the 
fact  of  such  assignment  and  transfer  shall  be  filed  in  the  office  of  the  secretary  of 
state,  and  in  the  office  of  the  clerk  of  the  county  in  which  the  property  is  located. 
(April  8,  1891,  88  v.  298;  March  12,  1890,  87  v.  56.) 

§  3777.  CONSOLIDATION  OF  RELIGIOUS  CORPORATIONS.  —  When  two  or 
more  religious  societies,  churches,  or  associations,  recognizing  the  same  ecclesiastical 
jurisdiction,  form  of  faith,  government,  order,  and  discipline,  and  incorporated  by  or 
under  any  law  of  this  state,  desire  to  be  consolidated  or  united  as  a  single  corporation, 
the  elders,  trustees,  deacons,  directors,  or  other  known  and  legal  representatives  of 
such  societies,  churches,  or  associations,  may  enter  into  an  agreement  for  such  union 
or  consolidation,  and  prescribe  the  terms  and  conditions  thereof,  the  corporate  name 
of  such  united  society,  church,  or  association,  the  time  and  place  for  the  first  meeting 
of  the  new  corporation,  the  number  of  members  of  each  separate  branch  or  organiza- 
tion who  shall  be  chosen  as  directors,  trustees,  elders,  or  other  officers  for  the  new 
corporation,  to  succeed  to  the  rights,  trusts,  duties,  and  obligations  of  those  officers 
who,  in  the  separate  organizations,  held  in  trust  the  estate,  real  and  personal,  of  such 
separate  churches,  societies,  or  associations,  with  such  other  estates  as  they  may  deem 
necessary  to  complete  the  new  corporation;  but  an  agreement  so  made  shall  not  be 
valid  until  it  has  been  submitted  to  a  separate  meeting  of  the  members  of  each  organ- 
ization, of  which  due  and  full  notice  has  been  given,  according  to  the  form  and  usage 
for  calling  church,  congregation,  or  society  meetings,  and  ratified  by  a  two-thirds  vote 
of  all  present  at  such  meeting,  in  person  or  by  proxy,  and  entitled  to  vote  according 
to  the  laws,  regulations,  or  usages  of  such  church,  society,  or  corporation.  (67  v. 
30,  §  1.) 

§  3778.  RECORD  OF  PROCEEDINGS  TO  BE  CERTIFIED,  ETC. —When  the 
agreement  has  been  ratified  by  each  church,  society,  or  association  which  is  a  party 
to  the  proposed  united  organization,  the  clerk  or  secretary  of  each  meeting  shall  cer- 
tify the  record  of  the  proceedings  thereof,  and  deliver  the  same  to  the  clerk  or  secre- 


Religious  and  Other  Societies.  491 

Consolidations,   etc.,    SS   3779-3780. 

tary  of  the  first  meeting  of  the  united  churches,  societies,  or  organizations,  as  herein- 
before provided,  and  as  specified  in  the  terms  of  agreement.  (April  2,  1870,  67  v. 
30,   §  2.) 

§  3779.  ARTICLES  OF  INCORPORATION,  AND  FILING  OF  SAME.— If ,  at 
the  first  meeting  of  the  united  corporations,  the  proceedings  and  acts  of  the  several 
churches,  societies,  and  parties  thereto  are  submitted  to  and  approved  by  the  meeting, 
and  a  board  of  trustees,  directors,  or  other  officers  are  chosen  in  accordance  with  the 
terms  of  agreement,  the  clerk  or  secretary  of  the  meeting  shall  certify  such  approved 
agreement  or  terms  of  union,  and  file  the  same  in  the  office  of  the  secretary  of  state, 
whereupon  the  several  churches,  societies,  or  associations,  parties  thereto,  shall  be 
deemed  and  taken  to  be  one  corporation,  possessing  within  this  state  all  the  rights, 
privileges,  and  franchises,  and  subject  to  all  the  restrictions,  disabilities,  and  duties, 
of  such  new  corporation.     (April  2,   1870,  67  v.  30,  §  3.) 

§  3779-1.  LANDS  TO  DESCEND  IN  TRUST.—  All  lands  and  tenements  not 
exceeding  twenty  acres  that  have  been  or  hereafter  may  be  conveyed  by  devise,  pur- 
chase or  otherwise  to  any  person  or  persons  as  trustee  or  trustees  in  trust  for  the  use 
of  any  religious  society  within  this  state,  either  for  a  meeting  house,  burying  ground 
or  residence  for  their  preacher,  shall  descend,  with  the  improvement  and  appurte- 
nances, in  perpetual  succession,  in  trust  to  such  trustee  or  trustees  as  shall  from  time 
to  time  be  elected  or  appointed  by  any  such  religious  society,  according  to  the  rules, 
customs,  usages  and  regulations  of  such  society  respectively.  (March  20,  1894,  91  v. 
79;  23  v.  9;  Chase,  p.   1460;  Curwen,  p.  2347.) 

See    Mannix,    Assignee,    v.    Purcell.    4G   Oh.   St.  102,  148    (1883). 

§  3779-2.  Sec.  2.  TRUSTEES  MAY  SUE  AND  BE  SUED.  —  That  the  trustee  or 
trustees,  for  the  time  being,  of  any  religious  society  aforesaid,  shall  have  the  same 
power  to  defend  and  prosecute  suits  at  law,  or  in  equity,  and  do  all  other  acts  for  the 
protection,  improvement  and  preservation  of  said  property,  as  individuals  may  do  in 
relation  to  their  individual  property.     (23  v.  9;  Chase,  p.   1460;  Curwen,  p.  2347.) 

See    Mannix.    Assignee,    v.    Purcell,    40    Oh.    St.  102,  14S    (1883). 

§  3779-3.  LEGAL  TITLE  TO  RELIGIOUS  SOCIETIES'  LANDS.  —  Whenever 
any  property  has  been,  or  may  be,  conveyed  in  trust  for  the  use  of  any  religious 
society,  church  or  association,  whether  incorporated  or  not,  the  property  so  conveyed 
shall  be  held  by  the  trustee  or  trustees,  so  appointed,  and  their  successors,  appointed 
as  provided  in  the  instrument  creating  such  trust,  or  in  case  no  provision  is  made  in 
such  instrument,  then  by  such  successor  or  successors,  as  may  be  appointed  by  any 
competent  court;  but  no  person  shall  be  elected  or  appointed  by  such  society,  church 
or  association,  to  act  as  trustees,  to  the  exclusion  of  any  trustee  or  trustees,  appointed 
as  aforesaid.     (March  23,  1850,  48  v.  71;  Curwen,  p.  1554.) 

See  note  to  Methodist   Church  v.  Wood,  under  §  3786. 

§  3780.  PROPERTY  PASSES  TO  NEW  CORPORATION.  —The  new  corporation, 
with  its  officers  and  chosen  representatives,  shall  succeed  to,  and  be  invested  with, 
all  and  singular,  the  right,  title,  and  interest  in  and  to  every  species  of  property,  real, 
personal,  or  mixed,  and  all  and  singular  the  rights,  privileges,  and  franchises  of  each 
of  the  churches,  societies  or  associations  parties  to  the  agreement,  without  any  other 
act,  conveyance,  or  transfer;  and  such  new  corporation  shall  hold  and  enjoy  the  same, 
with  all  the  rights  pertaining  to  such  property,  franchises,  and  trusts,  and  shall  be 
subject  to  all  the  debts,  liabilities,  and  obligations,  in  the  same  manner  and  to  the 
same  extent  as  any  or  either  of  the  churches  or  societies  parties  to  the  new  corporation. 
(April  2,  1870,  67  v.  30,  §  4.) 


492 


Private  Corporations  in  Ohio. 


Consolidations  —  Endowment   Fund   Companies,    §§   3781-3784. 


§  3781.  TRANSFER  OF  PROPERTY  AFTER  UNION  OF  CORPORATIONS.  — 
When  any  two  or  more  religious  societies,  denominations,  or  ecclesiastical  corporations 
in  this  state  hereafter  unanimously  form  a  union,  or  which  have  heretofore  unani- 
mously formed  a  union,  and  become  united  or  consolidated  under  and  by  virtue  of  any 
rules  and  regulations  of  such  societies,  denominations,  or  corporations,  or  laws  of  this 
state,  the  trustees,  deacons,  directors,  or  other  proper  officers  of  such  new  society, 
denomination,  or  corporation  may,  at  the  request  of  a  majority  of  the  members  of 
either  of  such  societies,  denominations,  or  corporations,  petition  the  court  of  common 
pleas  of  the  proper  county,  setting  forth  the  fact  of  such  union,  and  the  court  may, 
in  its  discretion,  make  an  order  requiring  such  officers,  at  the  time  of  such  union,  to 
convey  to  such  new  organization  the  real  estate  owned  and  held  by  the  parties  to  the 
union,  as  the  court  may  direct;  and  if  any  of  such  officers  refuse  or  neglect  to  obey 
such  order,  the  decree  of  the  court  shall  serve  as  such  conveyance;  but  such  order  shall 
in  no  case  be  inconsistent  with  the  original  terms  upon  which  such  real  estate  became 
vested  in  or  intrusted  to  the  parties  to  the  union;  and  in  all  cases  the  grantors  of  such 
real  estate  to  such  parties,  or  their  heirs,  shall  be  made  parties  to  the  petition,  and 
such  grantors  or  their  heirs  who  make  no  defense  shall  not  be  subject  to  costs.  (April 
11,  1876,  73  v.  225,   §   1.) 

§  3782.  NOTICE  OF  APPLICATION  THEREFOR.  —  Notice  of  the  pendency  of 
such  petition  shall  be  given  by  publication  in  a  newspaper  published  in  the  county 
where  the  petition  is  filed,  for  four  consecutive  weeks,  setting  forth  the  object  and 
prayer  of  the  petition,  and  if  no  newspaper  is  printed  in  such  county,  publication  shall 
be  made  in  the  newspaper  published  nearest  to  such  county.  (April  11,  1876,  73  v. 
225,  §  2.) 

§  3783.     ASSOCIATIONS  FOR  HOLDING  DONATIONS  AND  BEQUESTS.  —  An 

association  incorporated  for  the  purpose  of  receiving  and  holding  donations  and 
bequests,  and  funds  arising  from  other  sources,  and  disbursing  the  interest  and 
income  arising  therefrom  as  in  this  section  provided,  shall  hold  all  such  principal 
'sums  as  a  permanent  fund;  and  the  interest  arising  from  such  fund,  and  the  annual 
income  arising  from  all  personal  and  real  property  held  by  such  association,  shall  be 
applied  and  distributed  annually  as  follows: 

First.     To  the  payment  of  the  necessary  expenses  of  such  association. 

Second.  The  balance  shall  be  paid  to  the  board  of  stewards,  or  any  officer  that 
may  be  designated  by  any  conference,  synod,  assembly,  or  association  within  the 
bounds  of  which  the  principal  office  is  located  at  the  time  of  such  organization,  to  be 
distributed  by  the  board  of  stewards  or  such  officer  annually,  to  such  persons  as  may 
be  designated  by  such  conference,  synod,  presbytery,  assembly,  or  association.  (April 
20,  1874,  71  v.  110,  §§  1,  2,  3,  4.) 


Conflicting  beneficiaries. 

Where  a  trust  is  created  for  the  benefit  of 
an  incorporated  religions  society,  and  there 
are  two  such  bodies,  each  claiming  to  be  such 
society,   a    court   of   equity    may   require    the 


claimants  to  interplead  and  proceed  to  ascer- 
tain the  true  beneficiary,  without  compelling 
either  party  to  establish  its  corporate  rights 
at  law. —  Presbyterian  Society  v.  Presbyte- 
rian Society,  25"  Oh.  St.  128   (iS74). 


§  3784.  ENDOWMENT  FUND  CORPORATIONS.  —  When  a  presbytery,  synod, 
conference,  diocesan  convention  or  other  representative  body  of  any  religious  denomi- 
ration  in  this  state,  or  when  an  assembly,  synod,  conference,  convention  or  other  gen- 
eral ecclesiastical  body  of  any  religious  denomination  held  in  the  United  States 
desires  to  create  a  board  of  trustees  for  any  endowment  fund  or  other  property  of  the 
denomination  represented  by  such  body,  and,  at  any  regular  meeting  of  such  presby- 
tery, synod,  conference,  diocesan  convention  or  other  representative  body  of  such 
denomination  in  this  state,  or  such  assembly,  synod,  conference,  convention  or 
other  general  ecclesiastical  body  in  the  United  States,  elects  not  less  than  five  mem- 


Religious  and  Other  Soi  [etu  -.  493 

Endowment  Fund  Companies;  Trustees,  Powers  of,  SS  3785,  3786. 

bers  of  such  denomination,  one  of  whom  shall  be  a  resident  freeholder  in  this  state, 
to  serve  as  trustees,  and  makes  and  files  in  the  office  of  the  secretary  of  state  a 
statement,  giving  the  names  of  such  trustees,  the  character  of  the  endowment  fund 
or  other  property  to  be  intrusted  to  their  care,  and  the  uses  to  which  it  is  to  be  applied, 
signed  by  the  proper  presiding  officer  and  the  secretary  or  clerk  of  such  body, 
acknowledged  before  a  clerk  of  a  court  of  record,  notary  public  or  a  judicial  officer 
having  a  seal,  and  the  signing  of  the  same  is  duly  attested  by  such  officer,  and  the 
statement  thus  authenticated  is  recorded  in  the  office  of  the  secretary  of  state,  th3 
persons  named  in  such  statement  as  trustees  shall,  thereupon,  with  their  successors 
in  office,  become  a  body  corporate  and  politic  for  the  purpose  in  such  statement  speci- 
fied; and  a  copy  of  such  record,  duly  -ertified  by  the  secretary  of  state,  shall  be  evi- 
dence of  the  existence  of  such  corporation.  (March  21,  1894,  91  v.  83;  April  21, 
1890,  87  v.  243;  April  20,  1874,  71  v.  118,  §  1.) 

§  3785.  POWER  OF  TRUSTEES  OF  SUCH  CORPORATIONS.  —  Such  trustees,  if 
chosen  to  take  charge  of  any  endowment  fund,  may  invest,  manage,  and  dispose  of 
the  same  in  accordance  with  the  purpose  for  which  it  was  created,  subject  to  such 
regulations  as  the  body  by  which  they  were  elected  may  from  time  to  time  prescribe. 
(April  20,  1874,  71  v.  118,  §  3.) 

§  3786.  POWERS  OF  TRUSTEES  OF  RELIGIOUS  SOCIETY;  REAL  ESTATE 
LIABLE  FOR  JUDGMENTS  FOR  LABOR  PERFORMED,  ETC.  —  If  the  trustees  are 
chosen  to  take  charge  of  and  manage  any  other  property  that  may  be  owned  or  in  any 
manner  acquired  by  such  religious  denomination,  they  shall  have  full  power  to  hold, 
invest,  control,  and  manage  the  same  for  the  benefit  of  the  denomination  within  the 
presbytery,  synod,  conference,  diocese,  or  other  ecclesiastical  territorial  limits  repre- 
sented by  the  trustees,  subject  to  the  direction  of  the  proper  representative  body  of 
such  denomination  within  such  territorial  limits  as  aforesaid;  and  if  a  parish  or  con- 
gregation connected  with  the  denomination  represented  by  the  trustees  become  extinct, 
by  reason  of  the  death  or  dispersion  of  its  members,  the  trustees  may  take  possession 
of  the  church  property  of  such  parish,  congregation,  or  society,  whether  real  or  per- 
sonal, and  rent,  lease,  sell,  invest,  or  otherwise  dispose  of  the  same,  for  the  benefit  of 
the  denomination  represented  by  them,  within  the  territorial  limits  represented  by  the 
body  by  which  they  were  appointed,  and  subject  to  such  regulations  as  such  body  may 
prescribe;  but  all  property  held  by  such  trustees,  and  the  proceeds  thereof,  shall  be 
applied  to  the  use  and  benefit  of  the  proper  denomination  within  this  state;  provided, 
however,  that  the  real  estate  held  by  or  in  trust  for  any  religious  society  or  congre- 
gation as  a  place  of  worship,  or  otherwise,  shall  be  liable  for  and  may  by  civil  action 
be  subjected  to  the  payment  of  any  judgment  which  has  been  or  shall  be  recovered 
against  the  trustees  or  any  committee  of  such  society  or  congregation,  in  their  indi- 
vidual capacity,  or  otherwise,  for  labor  performed,  materials  furnished,  or  damages 
sustained,  under  any  contract  with  them  for  the  erection  of  any  church  edifice  or 
other  building  or  improvement  made  thereon.  (February  23,  1882,  79  v.  14;  R.  S. 
1880;  April   24,   1877,  74  v.    110,   §   1.) 


Trustees   hold   for   corporation. 

Where  conveyances  are  made  to  individual 

trustees  instead  of  the  corporation,  such  in- 
dividual irrantees  are  trustees  for  the  corpo- 
ration, and  on  sale  receive  the  proceeds  to 
its  use. —  Methodist  Church  v.  Wood,  5  Ohio, 
2S3    (1856). 


(1874);  P.artholomew  v.  Congregation,  35  Oh. 
St.  567  i  L880]  ;  Messinger  v.  Wardens  et  al..  G 
W.   1..    B.   397    (1881). 

See   §§    "774   ami   :;704  and  iv.tr-  thereto. 
See  also  In  re  Shoup,  L6  W.  L.  B.  71 


May  withdraw  froni  synod. 

Bartholomew    v.    Lutheran    Church,    35   Oh. 
Officers  illegally  elected;  de  facto  trus-     St.  567    (1880). 
tees. 

See  Hullman  v.  Honcamp.  5  Oh.  St.  238,  242 
(1856);   Presbyterian  Society  v.   Smithers,   12 

Oh.    St.    248    (1861):    Preshvterian    Society    v. 
Presbyterian    Society,    25    Oh.    St.     128. "  133 


Judgment   cannot   be  taken   against    an 

unincorporated  church. 

Males  v.  Murray  et  al..  7  X.  P.  615   (1900); 
s.  c,  10  Dec.  373." 


494  Private  Corporations  in  Ohio. 


Extinct    Parishes  —  Publishing   Houses,    §§    3787-3789. 


§  3787.  WHEN  AND  HOW  PROPERTY  OF  EXTINCT  CORPORATIONS  MAY 
BE  SOLD.  —  When  any  parish,  congregation,  or  society  becomes  extinct,  as  mentioned 
in  the  last  section,  the  court  of  common  pleas  of  the  county  in  which  any  real  prop- 
erty of  such  extinct  parish,  congregation,  or  society  is  situate,  may,  upon  the  petition 
of  the  trustees  of  the  denomination  to  which  such  extinct  parish,  congregation,  or 
society  belonged,  make  an  order  for  the  sale  of  such  property,  whether  che  same  has 
been  built  upon,  or  otherwise  improved,  or  not,  the  proceeds  of  such  sale  to  go  to,  and 
be  for  the  benefit  of,  the  denomination  represented  by  such  trustees,  within  the  terri- 
torial limits  represented  by  the  body  by  which  they  were  appointed,  and  the  pur- 
chaser thereof  shall  be  vested  with  as  full  and  complete  a  title  to  the  property  as  the 
character  of  the  original  grant  to  such  parish,  congregation,  or  society  will  allow;  but 
this  section  shall  not  be  so  construed  as  to  limit,  or  in  any  degree  restrict,  the  powers 
conferred  by  the  two  preceding  sections  upon  such  trustees.  (April  24,  1877,  74  v. 
110,   §   2.). 

§  3787a.  TRUSTEES  OF  EXTINCT  PARISH,  CONGREGATIONS,  ETC.,  DUTY 
AS  TO  MONEY  RECEIVED  FROM  SALE  OF  PROPERTY.  —  All  money  derived  from 
the  sale  of  any  property  under  the  provisions  of  original  section  and  section  three 
thousand  seven  hundred  and  eighty-seven,  shall  be  placed  in  the  custody  of  the 
trustees  of  the  presbytery,  synod,  conference,  diocese,  or  other  ecclesiastical  body  hav- 
ing jurisdiction  in  the  territorial  limits  in  which  said  property  may  have  been 
located,  and  they  shall  hold  the  same  in  trust  for  the  period  of  ten  years,  or  for  such 
period  as  may  be  prescribed  by  the  law  of  the  denomination.  If  within  that  time 
another  parish,  congregation  or  society  of  the  same  denomination  shall  be  organized 
in  the  same  locality,  then  the  court  authorizing  the  sale  of  said  property,  may,  upon 
proper  application  and  evidence,  authorize  the  return  of  said  money  to  the  trustees  of 
the  new  organization.  Otherwise  such  money  shall  become  a  part  of  the  funds 
of  the  presbytery,  synod,  conference,  diocese,  or  other  ecclesiastical  body  having 
jurisdiction.      (March  22,   1889,  86  v.  132,  133.) 

§  3787b.  FUNDS  ARISING  FROM  SUCH  SALE  TO  BE  UNDER  CONTROL  OF 
PRESBYTERY,  SYNOD,  ETC.  —  Be  it  further  enacted,  that  all  sums  of  money  aris- 
ing from  the  sale  of  property  formerly  belonging  to  any  extinct  parish,  congregation 
or  society,  and  which  are  now  held  by  special  trustees  appointed  by  the  courts  author- 
izing sale  of  such  property,  shall  be,  from  and  after  the  passage  of  this  act,  under  the 
control  of  the  trustees  of  the  presbytery,  synod,  conference,  or  other  ecclesiastical 
body  to  which  said  extinct  parish,  congregation  or  society  may  have  belonged,  and 
shall  be  held  by  them  subject  to  the  conditions  and  provisions  of  this  act;  and  said 
trustees  are  hereby  authorized  to  take  such  steps,  legal  or  otherwise,  necessary  to 
obtain  possession  of  such  money.     (March  22,   1889,  86  v.   132,   133.) 

§  3788.  WHO  TO  BE  PARTIES  TO  PROCEEDINGS  FOR  SALE.  —  When  a  peti- 
tion is  filed,  as  provided  for  in  the  preceding  section,  all  persons  who  may  have  a 
vested,  contingent,  or  reversionary  interest  in  such  real  estate,  shall  be  made  parties 
thereto,  and  be  notified  of  the  filing  and  pendency  thereof,  in  the  manner  provided 
by  law  in  cases  of  the  partition  of  real  estate;  but  the  court  may  make  such  order  as 
to  costs  as  may  be  deemed  just  and  proper.     (April  24,   1877,  74  v.   110,  §  3.) 

§  3789.  HOW  PRINTING  AND  PUBLISHING  HOUSES  INCORPORATED.— 
When  a  conference,  presbytery,  assembly,  association,  or  other  general  ecclesiastical 
body  held  in  the  United  States,  elects,  in  conformity  with  the  rules  and  regulations 
prescribed  by  such  body,  any  number  of  persons,  not  less  than  three,  as  trustees  or 
directors  of  a  printing  and  publishing  house,  to  hold  their  office  until  their  successors 
are  elected  by  such  body,  and  a  certificate  of  the  election  of  such  persons,  and  setting 
forth  the  name  by  which  the  corporation  is  to  be  known,  signed  by  the  clerk,  secre- 


Religious  and  Other  Societies.  495 

Publishing  Houses  —  Fiscal  Trustees,   SS  3790-3792. 


tary,  or  other  like  ofiicer  of  such  body,  together  with  the  written  acceptance  of  such 
offices  by  the  persons  so  elected  thereto,  is  filed  in  the  office  of  the  secretary  of  state, 
such  trustees  shall  be  deemed  and  held  to  be  duly  incorporated,  by  the  name  set  forth 
in  such  certificate.     (March  18,   1871,  68  v.  43,  §   1.) 

§  3790.  EXPIRED  CORPORATIONS  MAY  HAVE  BENEFIT  OF  LAST  SEC- 
TION. —  Any  corporation  which  has  heretofore  been  established  by  special  act  of 
the  legislature  for  the  purpose  named  in  the  preceding  section,  and  whose  charter  has 
expired,  or  hereafter  expires,  may  be  renewed  by  a  compliance  with  the  provisions  of 
the  preceding  section  on  the  part  of  the  religious  sect,  association,  or  denomination  to 
which  such  corporation  belonged,  or  under  the  direction  of  which  it  was  carried  on; 
and  the  title  to  all  property  belonging  to  such  former  corporation  at  the  date  of  the 
expiration  of  its  charter,  whether  the  same  is  real,  personal,  or  mixed,  shall  pass  to 
and  be  vested  in  the  corporation  so  established.     (March  18,  1871,  68  v.  43,  §  2.) 

§  3791.  FISCAL  TRUSTEES  OF  WOMEN'S  BENEVOLENT  ASSOCIATIONS.— 
Any  benevolent  or  charitable  association  incorporated  by  or  under  the  laws  of  thi3 
state,  and  of  which  women  are  or  may  be  trustees,  managers,  or  directors,  may  vest 
the  custody,  control,  and  management  of  ail  its  endowment  or  capital,  funds,  and 
property  in  three  male  trustees,  to  be  styled  fiscal  trustees,  who  shall  be  appointed 
from  time  to  time,  as  follows:  One  by  the  court  of  common  pleas  of  the  county  where 
such  association  is  located,  one  by  the  probate  court  of  such  county,  and  one  by  the 
vote  of  a  majority  of  the  members  of  such  association  present  at  a  regular  meeting 
duly  convoked;  such  trustees  shall  hold  their  office  for  three  years,  except  the  first 
appointed,  who  shall  hold  their  office  respectively  for  one,  two,  and  three  years;  they 
shall  meet  in  the  presence  of  the  probate  judge,  and,  by  agreement,  or  by  lot  if  they 
cannot  agree,  allot  themselves  accordingly,  and  the  judge  shall  give  to  each  a  certifi- 
cate of  the  term  so  allotted  to  him;  and  upon  the  death,  resignation,  incapacity,  or 
removal  from  the  county,  of  either  of  such  trustees,  the  vacancy  shall  be  filled  for  the 
unexpired  term  by  the  same  appointing  power;  but  trustees  shall  not  be  appointed 
except  upen  the  written  request  of  the  association,  filed  in  the  probate  court,  in  ac- 
cordance with  a  resolution  adopted  by  the  association,  at  a  regular  meeting  thereof, 
duly  convoked;  and  until  such  appointment  the  association  at  a  regular  meeting,  may 
elect  any  number  of  such  trustees,  not  less  than  three  with  the  power  and  subject  to 
the  duties  aforesaid,  who  shall  hold  their  office  for  such  time  not  more  than  three 
years,  as  the  association  may  by  its  by-laws  determine.  (May  13,  1878,  75  v.  524, 
§  1;  S.  &  S.    51.) 

§  3792.  POWERS  AND  DUTIES  OF  FISCAL  TRUSTEES.— The  trustees  shall 
have  the  exclusive  right,  power,  and  authority,  in  the  name  and  behalf  of  such  asso- 
ciation, to  demand,  take,  and  possess  all  the  endowment  or  capital,  funds,  or  property 
which  such  association  may  have  or  be  entitled  to  have,  and  the  same  securely  man- 
age, invest,  change,  and  dispose  of  at  their  will,  for  the  use  and  benefit  of  the  associa- 
tion, so  as  to  yield  a  regular  income;  they  shall,  every  three  months,  or  oftener  if 
necessary  and  convenient,  give  account  of  all  such  funds,  property,  and  income,  to 
the  proper  board  of  trustees,  managers,  or  directors  of  the  association,  and  shall  collect 
at  such  times,  and  pay  over  to  them  or  their  order,  all  the  net  income  of  such  invest- 
ments, after  deducting  the  actual  and  necessary  expenses  of  the  trust;  but  no  charge 
or  allowance  for  their  services  shall  be  made  or  permitted;  and  such  trustees  may, 
for  the  purposes  (of)  aforesaid,  in  the  name  of  the  association,  contract  and  be  con- 
tracted with,  prosecute  and  defend  suits,  and  receive,  hold,  and  dispose  of,  all  money 
and  property  which  the  association  may  have  or  acquire,  or  be  entitled  to  have  by 
gift,  purchase,  or  otherwise,  for  its  endowment,  and  when  necessary  for  the  purposes 
aforesaid  may  use  the  common  seal  of  the  corporation;  but  they  shall  not  have  or 
exercise  any  power,  authority,  or  control  over  the  institution  or  affairs  of  such  cor- 


Private  Corporations  in  Ohio. 


Fiscal   Trustees —  Consolidation   of    Charitable,    etc..   Associations,    §§    3793-3793c. 

poration,  other  than  its  fiscal  affairs  as  hereinbefore  limited,  nor  be  liable  for  its 
debts,  or  for  anything  but  their  own  acts  or  negligence.  (March  30,  1864,  61  v.  87, 
§  2;  S.  &  S.   52.) 

§  3793.     OTHER  ASSOCIATIONS  MAY  ACCEPT  THESE  PROVISIONS.  —  Any 

benevolent  or  charitable  association  hereafter  formed,  coming  within  the  purview  of 
section  thirty-seven  hundred  and  ninety-one,  may  make  the  provisions  of  the  two 
preceding  sections  part  of  its  articles  of  incorporation,  and  any  such  association  now 
incorporated,  by  or  under  any  general  or  special  law,  may  accept  such  provisions,  by 
a  vote  of  the  majority  of  the  members  present  at  a  regular  meeting,  and  when  so 
accepted,  and  a  certified  copy  of  such  acceptance  filed  in  the  office  of  the  secretary  of 
state,  the  provisions  of  the  two  preceding  sections  shall  become  and  be  a  part  of  its 
charter.     (March  30,  1864,  61  v.  87,  §  3;  S.  &  S.  52.) 

§  3793a.  CONSOLIDATION  OF  CHARITABLE  OR  BENEVOLENT  ASSOCIA- 
TIONS. —  When  two  or  more  charitable  or  benevolent  associations,  societies  or 
organizations  now  or  hereafter  formed  or  incorporated  by  or  under  any  law  of  this 
state  for  charitable  or  benevolent  purposes,  desire  to  be  consolidated  or  united  as  a 
single  corporation,  or  when  two  or  more  charitable  or  benevolent  associations,  socie- 
ties or  organizations,  one  or  more  of  which  is,  or  may  hereafter  be,  incorporated  under 
the  law  of  this  state  for  charitable  or  benevolent  purposes,  desire  to  be  consolidated 
or  united  as  a  single  corporation,  the  trustees,  directors  or  other  known  and  legal 
representatives,  or  governing  body  or  bodies,  of  such  associations,  societies  or  organi- 
zations may  enter  into  an  agreement  for  such  union  or  consolidation  and  prescribe 
the  terms  and  conditions  thereof,  the  corporate  name  of  such  united  association, 
society  or  organization,  which  may  be  the  name  of  either  one  of  them,  or  an  entirely 
new  name,  the  time  and  place  for  the  first  meeting  of  the  new  corporation,  the  number 
of  members  of  one  or  more  or  of  each  separate  branch  or  organization  who  shall  be  ! 
chosen  as  directors,  trustees,  or  other  officers  of  the  new  corporation  to  succeed  to  the 
rights,  trusts,  duties  and  obligations  of  those  officers  who  in  either  or  any  of  the 
separate  organizations  held  in  trust  the  estate,  real  and  personal,  of  such  separate 
association,  society  or  organization,  with  such  other  estates  as  they  may  deem  neces- 
sary to  complete  the  new  corporation; 

AGREEMENT  SUBMITTED.  TO  MEMBERS  OF  SEPARATE  ORGANIZATIONS. 
—  But  an  agreement  so  made  shall  not  be  valid  until  it  has  been  submitted  to  a  sepa- 
rate meeting  of  the  members  of  each  of  said  associations,  societies  or  organizations, 
of  which  due  and  full  notice  has  been  given  according  to  the  form  and  usage  for  call- 
ing meetings  of  each  of  said  associations,  societies  or  organizations,  and  ratified  by 
a  two-thirds  vote  of  all  the  members  present  at  such  meeting,  in  person  or  by  proxy, 
and  entitled  to  vote  according  to  the  laws,  regulations  or  usages  of  such  associations, 
societies,  organizations  or  corporations,  respectively.      (April   19,  1898,  93  v.   136.) 

§  3793b.  RECORD  OF  RATIFICATION  OF  AGREEMENT.  —  When  such  agree- 
ment has  been  ratified  by  each  association,  society,  organization  or  corporation  which 
is  a  party  to  the  proposed  united  organization,  the  clerk  or  secretary  of  each  meeting 
shall  certify  the  record  of  the  proceedings  thereof,  and  deliver  the  same  to  the  clerk 
or  secretary  of  the  first  meeting  of  the  united  association,  society,  organization  or 
corporation,  as  herein  provided  and  as  specified  in  the  terms  of  agreement.  (April 
19,   1898,   93  v.   137.) 

§  3793c.  EACH  MEMBER  OF  SEPARATE  ASSOCIATION  ENTITLED  TO  VOTE; 
APPROVAL  OF  PROCEEDINGS,  ETC.  —  At  the  first  meeting  of  the  united  associa- 
tion, society,  organization  or  corporation,  each  member  of  each  of  said  associations, 
societies,  organizations  or  corporations  shall  be  entitled  to  vote,  and,  if  at  such  meet- 


Religious  and  Other  Societies.  497 


Consolidation  of  Charitable,   etc.,  Associations,   SS  3793d-3793h. 


ing  the  proceedings  and  acts  of  the  several  associations,  societies,  organizations  or 
corporations,  parties  thereto,  are  submitted  to  and  approved  by  the  meeting,  and  a 
board  of  trustees,  directors  or  other  officers  are  chosen,  in  accordance  with  the  terms 
of  agreement, 

AGREEMENT  FILED  WTTH  SECRETARY  OF  STATE.—  the  clerk  or  secretary 
of  the  meeting  shall  certify  such  approved  agreement  or  terms  of  union  and  file  the 
same  in  the  office  of  the  secretary  of  state,  whereupon  the  several  associations,  socie- 
ties, organizations  or  corporations,  parties  thereto,  shall  be  deemed  and  taken  to  be 
one  corporation  under  the  name  by  it  adopted,  possessing  within  this  state  all  the 
rights,  privileges  and  franchises,  and  subject  to  all  the  restrictions,  disabilities  and 
duties  of  such  new  corporation.      (April   19,    1898,  93  v.    137.) 

§  3793d.  UNPERFORMED  ACTS  AT  FIRST  MEETING  MAY  BE  PERFECTED 
SUBSEQUENTLY.  —  Any  of  the  acts  provided  for  by  section  3793c  which  shall  not 
be  performed  or  perfected  at  such  first  meeting  may  be  performed  and  perfected  at 
any  subsequent  or  adjourned  meeting  of  such  united  corporation.  (April  19,  1898 
93  v.  137.) 

§  3793e.  RECORDING  OF  CERTIFICATE  OF  AGREEMENT.  —  The  certificate 
to  the  secretary  of  state  provided  for  by  section  3793c  shall  be  by  him  recorded,  and 
a  copy  duly  certified  by  him  shall  be  recorded  in  the  office  of  the  recorder  of  deeds  of 
the  county  where  such  corporation  exists  and  may  be  recorded  in  the  office  of  the 
recorder  of  deeds  of  any  county  where  any  real  estate  lies  belonging  to  any  of  said 
associations,  societies,   organizations  or  corporations  entering  into  said  union, 

EVIDENCE  OF  CORPORATE  EXISTENCE.  —  and  a  certified  copy  by  the 
recorder  of  either  county  in  whose  office  the  same  is  recorded,  or  a  copy  certified  by 
the  secretary  of  state  of  the  record  in  his  office,  shall  be  prima  facie  evidence  of  the 
existence  of  such  corporation.     (April  19,   1898,  93  v.   137.) 

§  3793f.  CONSTITUTION,  BY-LAWS  AND  RULES.  —  Such  united  corporation 
shall  be  authorized  to  adopt  a  constitution,  by-laws  and  rules  not  inconsistent  with 
the  laws  of  the  state  of  Ohio,  and  to  amend  the  same  from  time  to  time  under  such 
provisions  for  such  amendment  as  it  may  at  any  time  adopt.  (April  19,  1898,  93  v. 
137.) 

§  3793g.  RIGHTS,  ETC.,  OF  NEW  CORPORATION.  —  All  the  various  associa- 
tions, societies,  organizations  or  corporations  entering  into  such  union  shall  be 
merged  in  said  united  body  and  the  new  corporation  with  its  officers  and  chosen 
directors,  trustees  or  other  representatives  shall  succeed  to,  and  be  vested  with,  all 
and  singular,  the  right,  title  and  interest  in  and  to  every  species  of  property,  real, 
personal  and  mixed,  and  all  and  singular  the  rights,  privileges  and  franchises  held  by 
or  vested  in  each  of  the  said  associations,  societies,  organizations  or  corporations, 
parties  to  the  agreement,  without  any  other  act,  conveyance  or  transfer,  and  such 
new  corporation  shall  hold  and  enjoy  the  same  with  all  the  rights  pertaining  to  such 
property,  franchises  and  trusts,  and  shall  be  subject  to  all  the  debts,  liabilities  and 
obligations  in  the  same  manner  and  to  the  same  extent  as  any  or  either  of  the  asso- 
ciations, societies,  organizations  or  corporations,  parties  to  the  new  corporation. 
(April  19,  1898,  93  v.   137.) 

§  3793h.  PROPERTY  HELD  IN  TRUST  TO  BE  GOVERNED  BY  ORIGINAL 
TERMS.  —  All  and  any  real  estate  or  other  property  vested  or  held  by  either  of  said 
associations,  societies,  or  organizations  or  corporations  under  any  trust  or  terms  gov- 
erning the  grant,  shall  continue  to  be  subject  to  such  trust  and  controlled  by  the 
original  terms  under  which  such  real  estate  or  property  became  vested  in  or  entrusted 
to  the  parties  to  the  union.     (April  19,  1898,  93  v.   138.) 

LAW    GOV.    PRIV.    COR. —  32. 


498  Private  Corporations  in  Ohio. 


Consolidation  of  Charitable,  etc.,  Associations  —  Sale,  etc.,  of  Realty,   §§  3793i-3794. 

§  3793i.  PETITION  FOR  CONVEYANCE  OE  REAL  ESTATE;  ORDER  OF 
COURT  DECREE  TO  SERVE  AS  CONVEYANCE.  —  The  united  corporation  may, 
at  the  request  of  a  majority  of  its  members,  or  by  act  of  its  trustees,  directors  or  other 
governing  body,  in  its  corporate  name  petition  the  court  of  common  pleas  of  the 
proper  county,  setting  forth  the  fact  of  such  union,  and  the  court  may  in  its  dis- 
cretion make  an  order  requiring  such  officers  to  convey  to  such  new  corporation  the 
real  estate  owned  and  held  by  the  parties  to  the  union,  as  the  court  may  direct,  and, 
if  any  of  such  officers  refuse  or  neglect  to  obey  such  order,  the  decree  of  the  court 
shall  serve  as  such  conveyance,  but  such  order  shall  in  no  case  be  inconsistent  with 
the  original  terms  under  which  such  real  estate  became  vested  in,  or  entrusted  to, 
the  parties  to   the  union; 

DEPENDANTS.  —  And  in  all  cases  the  grantors  of  such  real  estate,  to  such 
parties,  or  their  heirs,  or  such  other  parties  as  the  petitioners  may  deem  advisable, 
may  be  made  defendants  to  such  petition,  and  such  of  the  defendants  who  shall  make 
no  defense  shall  not  be  subject  to  costs.     (April  19,  1898,  93  v.  138.) 

§  3793J.  NOTICE  OF  PETITION.  —  Notice  of  the  pendency  of  such  petition  shall 
be  given  by  publication  in  a  newspaper  published  in  the  county  where  the  petition  is 
filed  for  four  consecutive  weeks,  setting  forth  the  object  and  prayer  of  the  petition, 
and,  if  no  newspaper  is  printed  in  such  county,  publication  shall  be  made  in  the 
newspaper  published  nearest  to  such  county.     (April   19,    1898,   93  v.    138.) 

§  3793k.  SUBSEQUENT  UNION  OF  ASSOCIATIONS,  ETC.,  WITH  CORPORA- 
TION.—  Subsequent  to  the  creation  of  the  united  corporation  under  the  provisions 
of  sections  3793a  to  3793j,  inclusive,  any  one  or  more  associations,  societies,  organ- 
izations or  corporations  of  like  character,  may  at  any  time  unite  with  and  become  a 
part  of  said  corporation  in  accordance  with  the  provisions  of  said  sections.  (April 
19,   1898,  93  v.   138.) 

§  3794.  HOW  CHARITABLE  OR  RELIGIOUS  SOCIETIES  MAY  SELL,  INCUM- 
BER, ETC.,  REALTY.  —  When  any  charitable  or  religious  society  or  association 
desires  to  sell,  exchange  or  incumber  by  mortgage  or  otherwise  any  real  estate  now 
or  hereafter  owned  by  it,  or  held  in  trust  by  it  for  any  specified  religious  or  chari- 
table purpose,  or  held  for  its  use  or  benefit  by  trustees  either  chosen  by  it  or  otherwise 
constituted,  for  any  such  religious  or  charitable  purpose,  except  grounds  used  or 
occupied  as  burial-places  for  the  dead,  the  trustees,  wardens  and  vestry,  or  other  offi- 
cers intrusted  with  the  management  of  the  affairs  of  such  society  or  association  or 
holding  the  title  to  such  property,  or  such  society  or  association  itself,  if  it  be  incor- 
porated under  any  law  of  this  state,  may  file  in  the  court  of  common  pleas  of  the 
county  in  which  such  real  estate  is  situated,  a  petition  stating  how  and  by  whom  the 
title  thereto  is  held,  that  such  society  or  association  desires  to  make  such  sale, 
exchange  or  incumbrance,  and  setting  forth  the  object  of  the  same;  and  if  upon 
the  hearing  of  such  case  it  appears  that  such  sale,  exchange  or  incumbrance  is  desired 
by  the  members  of  such  society  or  association  and  that  it  is  right  and  proper  that 
authority  be  given  to  accomplish  the  same,  the  court  may  authorize  the  trustees  or 
other  officers  of  such  society  or  association,  or  if  incorporated  as  aforesaid  the  society 
or  association  itself,  to  sell,  exchange  or  incumber  such  real  estate  in  accordance  with 
the  prayer  of  the  petition  and  upon  such  terms  as  the  court  shall  deem  reasonable;  and 
in  case  the  title  thereto  is  held  for  the  use  or  benefit  of  such  society  or  association  by 
trustees,  all  or  a  majority  of  whom  are  not  chosen  thereby  but  otherwise  constituted, 
and  who  refuse  upon  request  of  such  society  or  association,  or  its  duly  elected  trustees, 
wardens,  and  vestry  or  other  officers,  to  file  such  petition,  the  court  upon  the  petition 
of  such  society  or  association  or  its  duly  elected  trustees,  or  other  officers  aforesaid, 
may  require  said  trustees  holding  such  title  to  convey  or  incumber  such  real  estate 
in  accordance  with  the  prayer  of  the  petition  and  upon  such  terms  as  shall  be  deemed 


Religious  and  Other  Societies.  499 


Transfers  of  Realty,  etc.— Homes  for  Children,   SS  3794a  3794-1. 

reasonable;  provided,  that  all  trustees  holding  title  as  aforesaid  and  refusing  to  file 
or  join  in  such  petition  shall  be  made  defendants  therein  and  be  served  with  summons 
as  in  a  civil  action.  (April  27,  1896,  92  v.  397;  April  17,  1882,  79  v.  108;  R.  S. 
1880;  April  3,   1866,  63  v.  87,  §§   1,  2;  S.  &  S.   163;  S.  &  C.   371,  372.) 


See  32  W.  L.  B.   377   (1894). 

May     give      purchase-money      mortgage 
without   order  of  court. 

Baptist  Society  v.  Clapp,  18  Barb.  35  (1853). 

Sale  •without  authority  of  court  invalid. 

Trustees  without  consent  and  authority 
from  the  members  of  the  society  and  without 
authority   from   court  first  obtained,   have   no 


power  to  sell  or  give  away  the  real  pr- 
of the  society. —  South  Kenton  Sunday  School 
v.   Espy  et  al.,  17  C.  ('.  524    |  L899). 

Special    act    of    legislature    empowering 
such   conveyance,  void. 

South  Kenton  Sunday  School  v.  Espy  et  al., 
17   C.   C.  524    (1899). 

S<c  §§  3774  and  3786  and  notes  thereto. 


§  3794a.  INTEECONVEYANCE  OF  PROPERTY.  —  The  trustees  of  any  church 
organization,  religious  or  charitable  society  or  association  and  all  persons  now  or  here- 
after holding  title  to  any  property  in  trust  therefor  are  hereby  authorized  and  empow- 
ered to  transfer  and  convey  the  same  to  other  trustees  of  the  same  denomination  or  to 
the  trustees  of  such  organization,  society  or  association  for  which  the  same  is  held  in 
trust,  or  to  such  organization,  society  or  association  itself  if  incorporated  under  the 
law  of  this  state;  provided,  however,  such  transfer  or  conveyance  shall  be  made  only 
when  the  property  so  transferred  is  still  to  be  used  for  the  specified  religious,  chari- 
table or  church  purposes,  and  the  same  shall  be  thereafter  held  in  trust  by  the 
grantees  for  such  purposes.     (April  27,   1896,  92  v.  397;    April  27,  1893,  90  v.  321.) 

§  3794b.  TITLE  TO  CERTAIN  TRANSFERS  OF  REAL  ESTATE  GUARAN- 
TEED. —  Provided,  however,  that  where  the  trustees  or  other  officers  mentioned  in 
section  3794  have  heretofore  sold  and  conveyed  by  deed  in  fee  simple  or  mortgaged 
any  real  estate  therein  mentioned,  without  proceeding  as  required  by  such  section, 
and  the  grantees  thereof,  and  their  successors  in  line  of  title,  for  five  years  since 
the  date  of  such  conveyance,  held  continued,  exclusive,  notorious  and  adverse  posses- 
sion of  such  real  estate  so  conveyed,  such  sales,  conveyances  and  mortgages  shall  be 
cf,  and  have  the  same  validity  and  effect  as  if  the  same  had  been  made  by  proceed- 
ings instituted  under  said  section  and  duly  confirmed  by  the  court  of  common  pleas. 
(April  12,  1898,  93  v.  101.) 

PREAMBLE.  —  Whereas,  Some  of  the  women's  christian  associations,  incorpo- 
rated under  the  laws  of  this  state,  in  pursuance  of  the  humane  and  benevolent  pur- 
poses of  their  organization,  have  established  and  maintained  branches  or  departments 
known  as  retreats  for  aiding  (and  assisting)  betrayed  women,  and  redeeming  the 
fallen,  and  in  which  children  are  born  and  abandoned  or  deserted  by  their  parents; 
and 

WHEREAS,  At  present,  no  adequate  means  are  provided  whereby  such  children 
can  be  placed  in  and  adopted  by  families  where  they  will  be  provided  with  proper  sup- 
port, education  and  training,  and  proper  supervision  maintained  over  them  after  they 
have  been  so  placed;    therefore, 

§  3794-1.  WOMEN'S  CHRISTIAN  ASSOCIATIONS  EMPOWERED  TO  PRO- 
CURE HOMES  FOR  CHILDREN.  —  Every  woman's  christian  association  ndw  or 
hereafter  incorporated  under  the  laws  of  the  state  of  Ohio,  having  and  maintaining 
a  branch  or  department  as  a  retreat  for  unfortunate  or  fallen  women,  shall  have,  and 
they  are  hereby  vested  with,  all  the  powers  and  authority  conferred  upon  children's 
homes,  incorporated  under  the  laws  of  this  state,  in  placing,  indenturing,  and  pro- 
curing the  adoption  in  private  families  of  children  who  are  born  in  such  retreats  of  the 
inmates  thereof,  and  who  are  abandoned  or  deserted  by  their  parents,  and  the  super- 
vision over  them  after  they  have  been  so  placed  or  adopted.  (April  18,  1892,  89 
v.   405.) 


500 


Private  Corporations  in  Ohio. 


Transfers,   etc.,   of   Realty  —  Secret  Benevolent  Societies,    §§    3795-3796c. 

§  3795.  NOTICE  OF  THE  PENDENCY  OF  THE  PETITION.  —  The  petitioners 
shall  cause  notice  of  the  pendency  and  prayer  of  the  petition  to  be  published  in  some 
newspaper  of  general  circulation  in  the  county  where  the  real  estate  proposed  to  be 
sold,  exchanged  or  incumbered  is  situate,  for  four  consecutive  weeks,  before  the  said 
application  shall  be  heard.  (April  17,  1882,  79  v.  108,  109;  April  8,  1880,  77  v. 
122;  R.  S.   1880;  March  24,   1860,  57  v.  85,   §  3;  S.  &  C.  372a.) 

§  3796.  SALES  TO  BE  CONFIRMED  BY  COURT.  —  The  trustees  or  other  officers 
of  such  religious  society,  authorized  to  make  such  sale,  exchange  or  incumbrance, 
shall  make  return  thereof  to  the  court  ordering  the  same  at  such  time  as  the  court 
shall  order,  and  thereupon,  if  the  court  is  satisfied  that  the  same  has  been  made  in  all 
respects  according  to  its  order,  it  shall  approve  the  same,  and  shall  order  that  the 
proceeds-  be  invested  in  other  real  estate  for  the  use  of  such  society,  used  in  the  pay- 
ments of  its  debts,  or  otherwise  invested  or  disposed  of  according  to  the  prayer  of 
said  petition.  (April  17,  1882,  79  v.  108,  109;  April  8,  1880,  77  v.  122;  R.  S. 
1880;   April  3,  1866,  63  v.  87,  §  2;   S.  &  C.  372a.) 

See  §  3794  and  notes  thereto. 

§  3796a.  SECRET  BENEVOLENT  SOCIETY  EMPOWERED  TO  INVEST 
RESERVE  FUNDS. — That  any  secret  benevolent  association,  or  society  incorporated 
under  or  by  the  laws  of  the  state,  which  shall  have  any  reserve  or  accumulated  funds, 
or  moneys,  held  by  them  for  the  purpose  of  endowment  of  the  widows,  orphans,  fami- 
lies, blood  relatives  or  heirs  of  the  members  of  such  benevolent  society  or  association, 
or  for  purely  charitable  purposes,  shall  have  the  right  and  power  to  invest  such 
funds  or  moneys  upon  interest  and  shall  take  securities  for  such  investment  upon  real 
or  personal  property,  or  otherwise,  as  such  society  or  association  may  deem  fit.  (April 
16,  1900,  94  v.  355;   April  9,  1880,  77  v.  146.) 


§  3796b.  MAY  ELECT  TRUSTEES  TO  TAKE  CHARGE  OF  SUCH  FUNDS.— 
Any  such  association  or  society  may  elect  a  board  of  trustees,  consisting  of  not  less 
than  three  members,  to  whom  they  may  intrust  the  right  to  manage,  control,  take 
charge  of,  invest,  collect,  demand,  receive  and  deposit  all  reserves,  surplus  or  accumu- 
lated funds  or  moneys,  which  such  association  or  society  holds,  or  may  hold,  from  time 
to  time  for  the  purpose  of  such  endowments  as  are  named  in  the  first  section  of  this 
act.     (April  9,   1880,   77  v.    146.) 


Funds  must  be  applied  to  society's  pur- 
poses. 

The  funds   of  a   society,   organized   to  assist 
its  sick  and  needy  members,  cannot,  without 


a  change  in  its  constitution,  be  applied  to 
religious  purposes. —  Podesta  et  al.  v.  Societa 
et  ah,  10  C.  C.  19  (1895)  ;  s.  c,  6  C.  D.  210. 


§  3796c.  SOCIETY  TO  FIX  TERMS  OF  TRUSTEES  AND  DEFINE  THEIR 
DUTIES,  POWERS,  ETC.  —  Any  association  or  society  as  aforesaid,  may,  by  law, 
define  and  limit  the  term  of  office  of  each  a"nd  all  of  the  said  trustees;  may  define  the 
duties  and  powers  of  said  trustees  and  of  said  board  of  trustees;  may  remove  either 
one  for  good  cause;  may  fill  all  vacancies  occurring  in  said  board;  shall  demand 
from  each  of  said  trustees  security  for  the  faithful  performance  of  their  several  duties, 
as  it  may  deem  fit;  shall  have  power  to  cause  investments  to  be  made  by  said  trus- 
tees, in  the  name  or  names  of  either  or  all  of  them,  and  in  which  name  or  names  suit 
may  be  brought;  may  empower  said  trustees  to  discharge,  acquit,  and  release  all 
claims  or  demands  of  such  association  or  society  upon  payment  thereof.  Such  trustees 
may  sue  for  any  claim  or  demand,  for  any  loan  or  investment  heretofore  made,  or 
hereafter  to  be  made  by  any  such  association  or  society;  and  upon  foreclosure  of  any 
mortgage  held  by  such  association  or  society  for  any  investment  or  loan,  may  pur- 
chase and  hold  any  lands,  tenement  or  interest  in  land,  in  fee  or  otherwise  and  may 
lease,  rent,  sell,  and  convey  the  same  by  deed.     (April  9,  1880,  77  v.  146.) 


Religious  and  Other  Societies.  501 


Secret   Benevolent   Societies,    §§   3796d,   3796e. 


§  3796d.  MAY  SUE  AND  BE  SUED.  —Any  such  association  or  society  may  sue 
or  be  sued,  answer  or  be  answered  unto,  plead  or  be  impleaded  in  any  court  in  this 
state.      (April  9,  1880,  77  v.   146.) 

§  3796e.  SOCIETY  MAY  ACCEPT  DONATIONS;  MAY  PAY  ENDOWMENTS 
NOT  EXCEEDING  $5,000. —Any  such  association  or  society  shall  have  power  to 
accept  and  receive  any  donation  or  voluntary  contribution,  may  collect  its  assess- 
ments, which  shall  not  exceed  one-fifth  of  one  per  centum  of  the  amount  payable  at 
the  death  of  a  member;  may  pay  endowments  in  the  mode  and  to  the  persons  named 
and  provided  by  its  laws  but  in  no  case  exceeding  in  the  aggregate  five  thousand  dol- 
lars on  the  death  of  any  one  member.     (April  9,  1880,  77  v.   146.) 


PART  XX. 

SAVINGS  AND  LOAN  ASSOCIATIONS. 

§  3797.         Savings  and  loan  associations. 

§  3798.         General  regulations  of  such  associations. 

§  3799.         Deposits,  and  payment  thereof. 

§  3800.         Officers  must  give  bond. 

§  3801.         Deposit  by  persons  under  disability. 

§  3802.         Officers  shall  not  borrow  of  the  association. 

§  3803.         What  real  estate  it  may  acquire. 

§  3804.         Interest  may  be  paid  on  deposit. 

§  3805.         Stockholders  to  share  ratably  in  increased  stock. 

§3806.         Savings  banks;   investment   of   funds;    discounts;    interest;   exchange;    prohibiting 

advertisement  of  capital  not  paid  in. 
§  3806a.       Loans  by  savings  banks  in  counties  containing  a  city  of  the  second  grade,  first 

class;  how  made. 
§  3806b.       Certain   powers    of    associations   loaning   money    on   chattel   mortgage    in    certain 

cities;  capital. 
§  3807.         Limit  of  loans  to  one  person. 
§  3S08.         Dividends. 

§  3809.        Distribution  when  association  ceases  to  do  business. 
§  3810.         Notices  and  reports  to  auditor  of  state. 
§  3811.         Certain  corporations  not  affected. 
§  3812.         Their  powers  increased. 
§  3813.         Further  increase  of  their  powers. 
§  3814.         Certain  charters  extended. 
§  3815.        Must  create  a  surplus  fund. 
§  3816.         Annual  report  to  auditor  of  state. 
§  3817.         Semi-annual  report  of  certain  corporations  to  same. 
§  3818.         Auditor  to  require  same,  penalty. 
§  3819.         Form  of  report  of  stock  companies. 
§  3820.         Form  of  report  of  other  corporations. 
§  3821.         Reports  to  be  compiled  and  published. 

§  3821a.       Powers  of  safe  deposit  companies;  courts  may  order  moneys  paid  into  court  to  be 
deposited  with  such  companies;  how  moneys  received  in  trust  by  such  companies 
to  be  loaned;  real  estate  acquired  by  such  company  by  foreclosure  of  mortgage, 
etc.,  to  be  sold. 
§  3821b.       Account  of  moneys,  etc.,  received  in  trust  shall  be  kept  separate;  said  company  shall 
maintain  a  reserve  equal  to  fifteen  per  cent,  of  deposits;  such  company  shall  be 
appointed  trustee  under  will;  capital  stock  shall  be  held  as  security  for  faithful 
discharge  of  duties  under  this  act;  money  held  in  trust  to  be  invested  in  trust 
funds  of  company;  money  held  in  trust  shall  not  be  mingled  with  other  funds, 
or  be  liable  for  debts  of  company:   liability  of  stockholders;    trustees  to   notify 
auditor  of   state  of  organization   of  company,  and  make   statement;    auditor  of 
state  may  appoint  expert  to  examine  affairs  of  such  companies;    dividends,  and 
how  paid:  increase  of  capital  stock:  assignment  and  transfer  of  stock. 
§  3821c.       Trust  capacities  in  which  such  companies  may  act. 
§  3821d.       Liability:  additional  security;  paid-Tip  capital  required;  deposit. 
§  3821e.       Examination  of  company. 
§  3821f.        Provisions  applicable  to  probate  courts  in  certain  counties. 

[502] 


Savings  and  Loan  Associations. 


503 


Articles  of  Incorporation,   §  3797. 


Loans  on  or  investments  in  stock. 

May  exercise  powers  of  safe  deposit  and  trusl  companies,  when.     Stockholders'  con- 
sent necessary.     Certificate    to  be   filed  with  secretary  of   state;     what   it  shall 
contain. 
§  3S21ggg.  Title  guaranty   and   trust  companies,    powers,  etc. 

To  authorize  the  consolidation   of  i-aving*  and  loan  associations  with   safe  deposit 
and  trust  companies. 


§  3821g. 
§  382 lgg. 


An  Act. 


Collateral  Loan  Companies  in  Cuyahoga. 

3821h.  Collateral  loan  companies;  their  object. 

3S21i.  Capital  stock;  power  to  borrow. 

3821j.  Board  of  directors;  officers;  by-laws. 

3821k.  Organization. 

38211.  Loans:  rate  of  interest,  etc. 

3821m.  Maturity  of  loans;   right  to  redeem. 

3821n.  Sale  of  unredeemed  property;  proceeds;   pawn  tickets. 

3821o.  Reports  of  company's  business. 

3821p.  Transfers  of  stock. 

3821q.  Applicability   of  statutes  to  stockholders. 


Bond  and  Investment  Companies. 

§  3821r.  Must  make  deposit  with  state  treasurer,  upon  commencing  business.  Deposit  by 
companies  already  in  operation  in  Ohio.     Minimum  amount  of  deposit.     Purpose. 

§  3821s.  Conditions  precedent  to  doing  business.  Copy  of  charter.  Statement  of  business 
of  preceding  year.     Process. 

§  3821t.       Certificate  of  authority  to  do  business.     Revocation. 

§  3821u.       Interest  on  securities  deposited. 

§  3821v.       Agents  to  be  licensed. 

§  3821w.  Annual  statement  of  business.  Examinations.  When  proceedings  to  be  insti- 
tuted against  company. 

§  3821x.       Supervisor  of  bond  investment  companies;  duty  and  compensation. 

§  3821y.       Fees. 

§  3821z.        Penalty  for  doing  business  without  complying  with  this  act. 

§  3797.  SAVINGS  AND  LOAN  ASSOCIATIONS.  —  The  secretary  of  state  shall 
submit  the  articles  of  incorporation  of  any  savings  and  loan  association  received  by 
him  to  the  attorney-general,  who  shall,  if  the  same  are  in  conformity  to  law,  and 
sufficient,  certify  thereto  on  the  same,  and  the  secretary  of  the  state  shall  then  record 
the  same;  and  no  such  association  shall  commence  business  with  a  subscribed  capital 
of  less  than  fifty  thousand  dollars,  except  in  villages  having  a  population  at  the 
federal  census  of  1880,  or  at  any  federal  census  to  be  taken  hereafter,  of  less  than 
twenty-five  hundred,  and  in  such  villages  no  such  associations  shall  commence  busi- 
ness with  a  subscribed  capital  of  less  than  twenty-five  thousand  dollars,  which  shall 
"be  divided  into  shares  of  one  hundred  dollars  (each),  nor  until  at  least  one-half  of 
each  subscription  has  been  fully  paid  up.  (April  12,  1889,  86  v.  269,  270;  It.  S. 
1580;  February  26,   1873,  70  v.  40,  §§   2,  4.) 


As  to  lien  on  stock. 

See   §   3798. 

Constitutional  —  merely  authorize  banks 
of  deposit. 

The  associations  authorized  by  this  section 
are  banks  of  deposit,  and  do  not  come  in  con- 
fliet  with  section  7.  article  13,  of  the  constitu- 
tion of  Ohio".  The  phrase  "  associations  with 
banking  powers,"  as  used  in  the  constitution. 


refers  only  to  banks  of  issue. —  Dearborn  v. 
Northwestern  Savings  Bank,  42  Oh.  St.  G17 
(1885);  Bates  v.  Peoples  Savings  &  Loan 
Ass'n,  42  Oh.  St.  655.  G70  (1885)."  See  notes 
to   §   3804. 

Deposits  are   trust  fund. 

Property  of  depositors  and  stockholders  is 
a  trust  fund,  and  the  directors  arc  liable  for 
waste  and  mismanagement. —  Meisse  et  al.  v. 


504  Private  Corporations  in  Ohio. 

Regulations  as  to  Deposits  —  Officers,   etc.,   §§   3798-3802. 

Loren  et  al.,  4  N.  P.  100  (1897) ;  s.  c,  6  Dec. 
258. 

Cannot  issue   notes  for  circulation. 

In  Corwin  v.  Ins.  Co.,  14  Ohio,  7,  13  (1846), 
prior  to  the  adoption  of  the  new  constitution, 
Wood,  C.  J.,  says:  "  All  persons  in  Ohio,  arti- 
ficial as  well  as  natural,  may  pursue  the  busi- 
ness of  banking,  with  the  single  exception  of 
the  issuing  of  notes  for  circulation  as  money. 
This  is  the  mischief  the  legislature  have 
sought  from  time  to  time  to  remedy;  it  is  the 
only  exclusive,  and  the  principal  franchise, 
except  its  life,  conferred  upon  a  bank.  It  is 
against  the  issue  and  circulation  of  notes,  as 


currency,  that  our  penal  laws  have,  without 
exception,  it  is  believed,  been  directed  from. 
1816  to  the  present  day.  These  deposits  in 
savings  institutions,  however,  have  but  little 
semblance  to  bank  deposits.  In  general  bank 
deposits,  no  interest  is  paid  by  the  bank,  and 
the  money  is  repaid  on  demand.  In  saving* 
banks  the  deposits,  though  called  such,  are 
strictly  loans,  on  which  interest  is  paid,  and. 
are  repaid  only  on  express  and  specific  notice." 

As  to  taxes  on  deposits. 

Collett    v.    Savings    Societv,    13    C.    C.    131, 
affirmed  37  W.  L.  B.  332   (1897). 

§  3798.  GENERAL  REGULATIONS  OF  SUCH  ASSOCIATIONS.  —  The  signers 
of  the  articles  of  incorporation  shall  give  at  least  three  days'  notice,  personally  served 
upon  each  stockholder,  or  thirty  days'  notice  by  publication,  of  the  time  and  place  of 
the  meeting  for  the  election  of  directors;  the  offices  of  secretary  and  treasurer  of  the 
corporation  may  be  held  by  the  same  person;  and  at  every  annual  meeting  the 
directors  shall  make  full  report  of  the  business  of  the  preceding  year,  and  the  present 
financial  condition  of  the  corporation.     (70  v.  40,  §§  5,  6,  7.) 

!  §  3799.     DEPOSITS,  AND  THE  PAYMENT  THEREOF.  —  The  board  of  directors 

may  prescribe  the  terms  on  which  deposits  shall  be  received  and  paid  out,  and  the 
mode  of  transacting,  managing,  and  conducting  the  affairs  and  business  of  the  cor- 
poration; and  the  rules  and  regulations  relating  to  the  receipt  and  payment  of 
deposits,  and  the  interest  thereon,  shall  be  written  or  printed  in  the  pass-books  of 
depositors,  shall  not  be  altered  so  as  to  affect  any  deposit  previously  made,  and  shall 
be  obligatory  on  such  depositors.     (February  26,   1873,  70  v.  40,  §  9.) 

See  note  to  Meisse  et  al.  v.  Loren  et  al.,  should  be  a  lien  on  the  stock. —  Bank  v_ 
under   §   3797.  I  Higbee.  4  C.  C.  222,  230  (1890)  ;  s.  c,  2  C.  D. 

512;  affirmed  28  W.  L.  B.  336  (1892);  Staf- 
Lien  on  stock.  ford    v.    Banking    Co.,    61    Oh.    St.    160,     169 

Authorizes  the  making  of  by-laws  by  which  i  (1899) ;  Pomb  v.  Felch  et  al.,  40  W.  L.  B.  186 
the  claims  of  the  bank  against  a  stockholder  |   (1898). 

§  3800.  OFFICERS  MUST  GIVE  BOND.  —  The  officers  of  such  corporation,  other 
than  directors,  shall,  before  entering  upon  the  discharge  of  their  duties,  give  bond  to 
the  corporation,  to  the  amount  required  by  the  directors,  and  with  security  to  be 
approved  by  them,  for  their  fidelity  and  good  conduct,  and  for  the  safe-keeping  and 
proper  application  of  the  funds  of  the  association,  and  of  such  sums  of  money  as  may 
be  placed  in  their  charge  by  the  depositors  or  others;  and  the  directors  may  require 
an  increase  of  the  amount  of  such  bonds  whenever  they  deem  it  necessary.  (February* 
26,  1873,  70  v.  40,  §  10.) 

§  3801.  DEPOSIT  BY  PERSONS  UNDER  DISABILITY.  —  When  deposit  is  made 
in  any  such  association  by  a  minor,  or  a  female  who  is  or  thereafter  becomes  a  mar- 
ried woman,  the  same  shall  be  held  for  the  exclusive  right  and  benefit  of  such, 
depositor,  free  from  the  control  or  lien  of  any  person,  except  creditors,  and  shall  be 
repaid  to  the  person  making  the  deposit,  and  the  receipt  or  acquittance  of  such  minor 
or  female  shall  be  a  sufficient  release  and  discharge  to  the  corporation  for  such 
deposit.     (February  26,  1873,  70  v.  40,  §   11.) 

§  3802.  OFFICERS  SHALL  NOT  BORROW  OF  THE  ASSOCIATION.  —  No 
director  or  other  officer  of  such  corporation  shall  borrow  or  use  the  funds  of  the  cor- 
poration, except  to  pay  the  necessary  and  current  expenses,  to  an  amount  greater  than 
one-half  of  the  amount  of  stock  by  him  owned  or  held;  nor  shall  any  officer  or  director 
be  surety,  or  in  any  manner  an  obligor  for  any  loan  made  by  the  corporation.  (70  v. 
40,  §  12;  S.  &  S.  188.) 


Savings  and  Loan  Associations.  505 


Real  Estate  —  Interest  —  Increase  of  Stock  —  Investments,  etc.,    SS   3803  3806. 


§  3803.  WHAT  REAL  ESTATE  IT  MAY  ACQUIRE.  —  Such  corporation  may- 
acquire,  hold,  and  convey  only  such  real  estate  as  is  necessary  and  convenient  for  the 
transaction  of  its  business,  and  such  as  it  may  find  necessary  to  purchase,  at  judicial 
sale  or  otherwise,  to  secure  debts  due  it;  but  it  shall  not  hold  any  real  estate  pur- 
chased to  secure  debts  due  it  for  a  longer  period  than  five  years;  nnd  in  all  cases  of 
loans  upon  real  estate  the  expense  of  searches,  examination  of  certificates,  and 
recording  of  papers,  shall  be  paid  by  the  borrower.  (February  26,  1873,  70  v. 
40,   §    13.) 

§  3804.  INTEREST  MAY  BE  PAID  ON  DEPOSITS.  —  Such  corporations  may 
receive  on  deposit,  for  safe  keeping  or  investment,  f.ll  sums  of  money  that  may  be 
offered  for  that  purpose  by  tradesmen,  clerks,  mechanics,  laborers,  minors,  or  other 
persons,  or  by  any  religious  or  charitable  society,  or  municipal  corporation,  or  that 
may  be  ordered  to  be  deposited  by  any  court  in  this  state  having  custody  of  money, 
and  make  investments  thereof  in  the  manner  provided  in  this  chapter,  and  may  credit 
and  pay  such  rates  of  interest  thereon  as  may  be  agreed  upon,  not  exceeding  the  rate 
allowed  by  law;  and  they  may  purchase  and  sell  promissory  notes,  drafts,  and  bills 
of  exchange,  at  such  rates  as  may  be  agreed  upon,  and  transact  such  other  business 
as  properly  pertains  to  the  business  of  such  associations  not  forbidden  by  the  consti- 
tution and  laws  of  this  state.     (February  26,  1873,  70  v.  40,  §  14.) 

without  knowledge  of  the  trustees,  neither  the 
abuse  or  disregard  of  his  authority,  nor  his 
fraud  or  bad  faith,  can  be  shown  in  defense  of 
the  bank  in  an  action  against  it  by  an  inno- 
cent party  holding  such  certificates. —  Bank 
v.  Blakesly,   42   Oh.   St.   645    (1885). 

As    to    usurious    loans    by    building    and 
loan    associations. 

See   Bates   v.    Loan   Ass'n,   42   Oh.    St.   655 

(1885). 


See  notes  to  §  3797. 

Liability    for    certificates    fraudulently 
issued. 

The  power  to  receive  deposits  carries  with 
it  the  power  to  issue  certificates  therefor. 
Issuing,  dealing  in,  buying  and  selling  certifi- 
cates is  one  of  the  incidents  of  and  properly 
pei-tains  to  the  business  of  banking. 

Where  the  proper  officer  to  issue  such  cer- 
tificates issued  authorized  certificates,  though 


§  3805.  STOCKHOLDERS  TO  SHARE  RATABLY  IN  INCREASED  STOCK.  — 
Upon  any  increase  of  stock,  the  stockholders  at  the  time  of  such  increase  shall  each 
be  entitled  to  a  pro  rata  share  thereof,  upon  the  payment  of  its  par  value;  but  such 
right  shall  be  forfeited  if  the  amount  be  not  paid  within  thirty  days  of  the  time  fixed 
therefor  by  the  directors,  by  public  notice.     (February  26,  1873,  70  v.  40,  §  15.) 

§3806.  SAVINGS  BANKS,  INVESTMENT  OF  FUNDS;  DISCOUNTS;  INTER- 
EST; EXCHANGE;  PROHIBITING  ADVERTISEMENT  OF  CAPITAL  NOT  PAID 
IN.  —  Such  corporations  may  invest  their  funds  in  the  purchase  of  stocks,  bonds  or 
other  evidences  of  indebtedness  of  the  United  States,  stocks  and  bonds  of  the  state 
of  Ohio,  bonds  of  any  municipal  corporation  of  this  state,  or  school  bonds  of  any 
municipal  corporation,  special  school  district  or  body  politic  in  this  state,  issued  pur- 
suant to  law,  or  in  bonds  issued  by  county  commissioners  within  this  state  in  pur- 
suance of  law,  to  such  an  amount  as  may  be  deemed  proper,  or  the  stocks  or  bonds 
of  any  state  of  the  United  States  that  has,  for  five  years  immediately  preceding  such 
investment,  paid  the  interest  on  its  bonded  debt  in  lawful  money  of  the  United  States, 
to  the  extent  of  ten  per  cent,  of  their  paid  in  capital  and  deposits,  or  in  bonds  or  notes 
secured  by  mortgages  on  unincumbered  real  estate  situated  in  the  county  where  the 
association  is  located,  or  any  adjoining  county  in  this  state,  worth,  exclusive  of 
buildings,  at  least  double  the  amount  loaned  thereon,  unless  accompanied  with  valid 
insurance  upon  the  buildings  thereon  that  will  make  the  value  of  the  real  estate  and 
insurance  at  least  double  the  amount  loaned  thereon;  but  not  more  than  seventy-five 
per  centum  of  the  amount  of  the  paid  in  capital  and  deposits  of  any  such  association 
shall  at  any  time  be  invested  in  such  real  estate  securities.     Such  associations  may 


506  Private  Corporatioxs  in  Ohio. 


Loans  —  Chattel   Mortgages,    S§    3806a,   3806b. 


another  state,  where  the  law  allows  such  in- 
terest.—  Ewing   v.   Savings   Bank,   43   Oh.    St. 

31    (1885). 

Void  only  as  to  usury. 

The  contract  is  not  absolutely  void,  but  only 
as  to  the  extent  of  the  usury. —  Ewing  v.  Sav- 
ings Bank.  43  Oh.  St.  31.  36   (1885). 

See  note  to  Corwin  v.  Ins.  Co.,  under 
§   3821-1. 


discount  notes  and  bills  of  exchange,  and  may  take,  receive,  reserve  and  charge  upon 
any  loan  or  discount  made  upon  any  note,  bill  of  exchange  or  other  evidence  of  debt, 
interest  at  the  rate  allowed  by  law.  Such  interest  may  be  reserved  or  taken  in 
advance,  at  the  time  of  making  the  loan  or  discount;  and  for  interest  taken  directly 
or  indirectly  in  excess  thereof,  the  association  shall  be  subject  to  the  same  penalties 
as  natural  persons;  but  in  the  purchase,  discount  or  sale  of  a  bill  of  exchange,  pay- 
able at  another  place  than  the  place  of  such  purchase,  discount  or  sale,  the  current 
rate  of  discount  or  premium  may  be  charged  and  received  in  addition  thereto.  And 
no  such  corporation  shall  advertise  by  newspaper  or  letter-head  or  in  any  other  way 
a  larger  capital  stock  than  has  been  actually  paid  in.  (April  18,  1892,  89  v.  366; 
April   16,    1888,  85  v.   288;  R.  S.    1880;  March  — ,    TS75,   72  v.    186,    §    16.) 

Usurious      contract      made      in      foreign 
state. 

A  corporation  can  make  no  contracts  and 
do  no  acts,  either  within  or  without  the  state 
which  creates  it,  except  as  are  authorized  bv 
its  charter.  However,  a  savings  bank  incor- 
porated under  this  charter  cannot  enforce  in 
this  state  a  usurious  contract  for  the  loan  of 
money  to  the  extent  of  the  usury  stipulated 
therein,   although   the   contract  was  made   in 

§  3806a.  LOANS  BY  SAVINGS  BANKS  IN  COUNTIES  CONTAINING  A  CITY 
OF  THE  SECOND  GRADE,  FIRST  CLASS.     HOW  MADE.  —  Provided,  that  any  sav- 
ings bank  in  county  containing  a  city  of  the  second  grade  of  the  first  class,  having 
in  its  articles  of  incorporation  expressed  the  purpose  to  loan  money  upon  pledges  of 
personal  property,  it  shall,  as  to  all  such  loans,  be  subjec.  to  all  laws  and  ordinances 
governing  pawnbrokers;    and  such  corporation  having  in  its  articles  of  incorporation 
such  purpose  so  expressed,  may  invest  its  funds  in  loans  upon  personal  property  left 
with  such  corporation  in  pledge,  not  exceeding  fifty  per  cent,  of  the  cash  value  of  such  | 
pledge,  and  upon  such  loans  such  corporation  may  charge  and  collect  a  rate  of  inter- 
est not  exceeding  one  per  cent,   a  month,  and  in  addition  to  the  cost  of  rent,  insur- 
ance and  storage,  not  exceeding  one-half  of  one  per  cent,  a  month.     In  all  cases  where 
such  corporation  does  a  general  pawnbroking  business,  the  articles  received  in  pledge 
shall  be  kept  for  ninety  (90)  days  after  the  loan  becomes  due,  when,  if  not  redeemed, 
they  shall  be  sold  and  the  proceeds  of  such  sale  after  payment  of  interest,  costs  of 
loan,  storage,  as  hereinbefore  provided,  and  the  reasonable  expenses  of  sale,  shall  be 
credited  to  the  party  (to  whom)  the  loan  was  made  and  paid  upon  demand,  together 
with   any   interest  which   may   accrue   thereon   under   the   rules    of   such    corporation 
governing    deposits;     provided,    that    any    such    corporation   having   expressed    in   its 
charter  "  to  loan  money  upon  pledges  of  personal  property,"  shall  have  the  same  con- 
dition printed  in  all  pass  or  deposit  books  and  a  notice  conspicuously  displayed  in 
said    bank    stating    that    loans    are    so    made    by    such    corporation.      And    no     cor- 
poration shall  advertise  by  newspaper  or  letter-head,   or  in  any  other  way,  a  larger 
capital  stock  than  has  actually  been  paid  in.     (April  15,   1889,  86  v.  369,  370.) 

Failure   to    obtain   license    does    not   in-  pledgor    to    subject    pledged    property    in    the 
validate  pledges.  hands  of  the  bank  to  the  satisfaction  of  their 
A  savings  bank   doing  business   as  contem-  claims,  held,  that  the  failure  of  the  bank  to 
plated  under  this  section  did  not  comply  with  comply  with  these  regulations  did  not  defeat 
the   laws    regulating    pawnbrokers   in   that   it  '  its   claims   against   the   pledged   property,  aud 
did    not    take   out    a    license,    make   report    of  that    it    held    the    first    lien    on    the    same- 
pledge,  etc..  as  required  by   §  438(5  et  seq.  Griffith   et    al.    v.    Goldsoll.    42    W.    L.    B.    264 
In  an  action  brought  by  the  creditors  of  the  (1899). 

§  3806b.  CERTAIN  POWERS  OF  ASSOCIATIONS  LOANING  MONEY  ON 
CHATTEL  MORTGAGE  IN  CERTAIN  CITIES;  CAPITAL. —In  cities  of  the  first 
and  third  grades  of  the  first  class  and  the  first  and  second  grades  of  the  second  class, 
a  company  organized  under  the  general  incorporation  laws  of  the  state  for  the  pur- 


Savings  and  Loan  Associations.  507 


Loans — Dividends  —  Reports,   etc.,   SS   3807-3810. 


poses  and  in  accordance  with  the  provisions  of  this  chapter,  and  which  also  states  in 
its  articles  of  incorporation  that  it  is  organized  for  the  purpose  of  making-  loans 
secured  by  mortgage  of  personal  property,  and  which  shall  display  in  its  place  of 
business,  a  notice  that  it  loans  money  upon  chattel  mortgage,  shall  have  power  to 
invest  its  funds  in  loans  not  greater  than  one  thousand  dollars  each,  upon  mortgage 
of  personal  property  not  exceeding  fifty  per  cent,  of  the  value  thereof.  And  upon 
such  loans  such  company  may  charge  and  collect  a  rate  of  interest  not  exceeding  one 
and  one-half  per  cent,  per  month,  and  shall  charge  no  commission,  and  not  more  than 
seventy-five  cents  for  preparing  a  mortgage  or  contract,  and  the  actual  legal  expenses 
of  filing  or  recording  the  same,  and  such  charge  as  may  be  agreed  upon  in  written 
contract  between  the  parties  for  inspection  of  propeity  mortgaged,  and  indemnity 
against  loss  by  fire  when  insurance  is  not  made  by  mortgagor.  And  if  any  greater 
charge  is  made  than  is  herein  authorized  such  company  shall  forfeit  the  whole  amount 
of  interest.  Such  company  shall  have  power  to  borrow  money  upon  its  certificates 
of  indebtedness,  but  not  exceeding  the  amount  of  its  paid  capital,  and  at  interest  not 
exceeding  legal  rates.  The  capital  stock  shall  not  be  less  than  fifty  thousand  dollars, 
provided,  that  a  company  organized  in  pursuance  hereof  may  commence  business 
when  fifteen  thousand  dollars  of  capital  are  actually  paid  in.  (May  18,  1894,  91 
v.   308.) 

§  3807.  LIMIT  OF  LOANS  TO  ONE  PERSON.  —  The  total  liabilities  of  any  per- 
son, company,  corporation,  or  firm,  to  any  such  association,  either  as  principal  debtor, 
or  as  security  or  indorser  for  others,  for  money  borrowed,  including  the  liabilities  of 
a  company  or  firm  the  liabilities  of  the  several  members  thereof,  shall  at  no  time 
exceed  one-fifth  part  of  the  capital  stock  of  such  association  actually  paid  in;  but  the 
discount  of  bills  of  exchange  drawn  against  actually  existing  values,  and  the  dis- 
count of  commercial  or  business  paper  actually  owned  by  the  person,  company,  cor- 
poration, or  firm  negotiating  the  same,  shall  not  be  considered  as  money  borrowed. 
(February  26,   1873,   70  v.   40,  §    17.) 

§  3808.  DIVIDENDS.  —  The  directors  may,  as  often  as  they  deem  proper,  make 
and  declare  dividends  of  the  profits  of  the  corporation,  after  paying  its  expenses,  and 
reserving  and  setting  aside  from  the  net  profits  of  the  institution  not  less  than  one- 
tenth  part  thereof,  to  be  held  and  invested  as  a  surplus  fund  to  meet  any  contingency 
in  its  business,  which  reservation  shall  continue  until  such  surplus  is  equal  to  at 
least  twenty  per  cent,  of  the  amount  of  the  full  capital  stock;  and  such  dividends 
shall  be  payable  to  the  shareholders  within  ten  days  from  the  time  the  same  are  so 
declared.     (February  26,  1873,  70  v.  40,  §  18.) 

§  3809.  DISTRIBUTION  WHEN  ASSOCIATION  CEASES  TO  DO  BUSINESS.  — 
When  any  such  association  ceases  to  do  business,  or  the  directors  thereof  determine 
to  close  up  its  affairs,  the  assets  of  the  association  shall  be  distributed  and  disbursed 
by  the  directors,  or  other  designated  persons,  as  follows: 

1st.  In  payment  of  depositors. 

2d.  In  payment  of  the  debts  of  the  corporation. 

3d.  The  remainder  shall  be  distributed  proportionately  among  the  shareholders. 
(February  26,   1873,  70  v.  40,  §  20.) 

§  3810.  NOTICES  AND  REPORTS  TO  AUDITOR  OF  STATE. — The  directors 
of  every  such  association  shall,  within  six  months  from  and  after  its  incorporation, 
notify  the  auditor  of  state  of  the  date  of  its  organization,  and  shall,  each  year,  within 
ten  days  after  its  annual  meeting,  make,  under  oath,  a  complete  statement  of  its  con- 
dition, showing  the  amount  of  deposits  and  capital  stock,  the  amount  of  the  invest- 
ments, and  specifying  the  character  of  the  same,  which  statement  shall  be  filed  with 
the  auditor  of  state,  and  published  in  his  annual  report;  and  they  shall  also  cause 
such  statement  to  be  published  in  at  least  one  newspaper  of  general  circulation  in  the 
county  where  the  corporation  is  located.     (February  26,   1873,  70  v.  40,  §  21.) 


508  Private  Corporations  in  Ohio. 


Powers,  etc.,   of  Certain  Companies  —  Surplus  —  Reports,   §§  3811-3817. 


§  3811.  CERTAIN  CORPORATIONS  NOT  AFFECTED.  —  Associations  incorpo- 
rated under  the  act  entitled  "  an  act  to  incorporate  savings  societies,"  passed  April 
16,  1867,  and  the  act  passed  March  19,  1868,  entitled  "  an  act  to  amend  an  act 
entitled,  '  an  act  to  incorporate  savings  societies,'  passed  April  16,  1867,"  may  con- 
tinue their  business  under  said  acts,  and  without  any  prejudice  to  any  rights 
acquired;  such  institution(s)  and  other  savings  and  loan  institutions  organized  under 
the  laws  of  this  state,  may,  if  they  so  elect,  continue  their  business  under  this  chap- 
ter, by  signifying  such  election,  under  their  seal,  to  the  secretary  of  state,  and  con- 
forming their  action  thereto;  and  the  secretary  shall  record  tbe  same,  and  his  certifi- 
cate be  evidence  thereof.     (February  26,  1873,  70  v.  40,  §  23.) 

Referring  to  the  act  of  April  1G,  1867,  see  Ridenour  v.  Mayo,  40  Oh.  St.  9    (1884). 

§  3812.  THEIR  POWERS  INCREASED.  — Savings  societies  organized  and  doing 
business  under  the  acts  named  in  the  preceding  section  may,  in  addition  to  the  invest- 
ments authorized  in  said  acts,  invest  their  funds  in  the  bonds  of  any  county  or 
municipal  corporation  issued  in  pursuance  of  any  law  of  this  state,  and  may  charge 
interest  on  loans  at  a  rate  not  to  exceed  eight  per  centum,  payable  semi-annually. 
(72  v.    150,   §§  1,  2.) 

§  3813.  FURTHER  INCREASE  OF  THEIR  POWERS.  —Societies  for  savings, 
duly  incorporated  by  the  general  assembly  of  this  state,  and  doing  business  under 
their  respective  acts  of  incorporation,  may  invest  in  land,  and  in  the  erection  of 
buildings  thereon,  for  the  purpose  of  their  own  business,  such  sum  as  the  trustees 
thereof  deem  necessary,  not  to  exceed  five  per  cent,  of  the  amount  of  the  deposits  held 
by  them,  and  they  may  rent  any  part  of  such  buildings  not  needed  for  their  own  use. 
(May  31,  1866,  63  v.  62,  §  1;    S.  &  S.  187.) 

§  3814.  CERTAIN  CHARTERS  EXTENDED.  —All  "  societies  for  savings  "  and 
"  savings  societies,"  now  doing  business,  whose  charters  are  subject  to  alteration  or 
repeal,  may  continue  their  business  under  their  respective  charters,  after  the  expira- 
tion thereof,  subject,  however,  to  the  repeal  of  any  such  charter,  and  to  such  amend- 
ments, alterations,  rules,  and  regulations  as  may  be  prescribed,  from  time  to  time,  by 
any  law  of  the  state.     (February  5,  1877,  74  v.  26,  §  1.) 

§  3815.  MUST  CREATE  A  SURPLUS  FUND.  —Before  any  dividend,  or  interest 
on  deposits,  shall  be  paid  by  such  societies,  they  must  have  a  surplus  fund  equal  to 
not  less  than  five  per  centum  of  the  whole  amount  of  deposits,  and  they  must  gradu- 
ally increase  such  surplus  fund  to  an  amount  equal  to  ten  per  centum  of  the  amount 
of  deposits.     (February  5,  1877,  74  v.  26,  §  2.) 

§  3816.  ANNUAL  REPORTS  TO  THE  AUDITOR  OF  STATE.  —  The  president 
and  treasurer  of  every  such  society  shall  make  to  the  auditor  of  state,  annually,  in 
writing,  during  the  month  of  June,  an  accurate  statement  of  the  financial  affairs  of 
the  society,  and  the  auditor  of  state  shall  cause  the  same  to  be  investigated  and  exam- 
ined by  two  suitable  persons,  appointed  by  him,  who  shall,  within  a  reasonable  time, 
report  to  him  the  result  of  the  investigation  and  examination,  with  such  suggestions 
as  to  them  seem  right  and  proper;  the  report  of  the  president  and  treasurer,  with  the 
report  of  the  examiners,  or  such  portion  thereof  as  the  auditor  of  state  deems  advis- 
able, shall  be  published  in  some  newspaper  printed  and  having  general  circulation 
within  the  county,  to  be  designated  by  the  auditor;  and  the  auditor  shall  allow  the 
examiners  a  reasonable  compensation  for  their  services,  and  such  compensation,  with 
the  cost  of  publication,  shall  be  paid  by  the  society.  (February  5,  1877,  74  v. 
26,  §  3.) 

§  3817.  SEMI-ANNUAL  REPORTS  OF  CERTAIN  CORPORATIONS  TO  SAME. 
Every  banking  institution,  or  incorporation  engaged  in  the  business  of  banking 


Savings  and  Loan  Associate 


509 


Reports,  etc.,   S§  3818,  3819. 


organized  under  the  laws  of  this  state,  shall  make  a  report  to  the  auditor  of  state,  as 
provided  in  the  next  section,  showing  the  condition  thereof  before  the  commencement 
of  business  on  the  first  Monday  of  the  months  of  April  and  October  of  each  year;  but 
institutions  known  as  building  or  loan  associations,  organized  and  conducted  under 
the  statutes  for  such  institutions,  and  not  doing  a  banking  business,  shall  not  be 
required  to  make  such  reports.     (February  5,  1877,  74  v.  72,  §   1.) 

§  3818.  AUDITOR  TO  REQUIRE  SAME,  AND  PENALTY.  —The  auditor  of  state 
shall  issue  his  requisition  upon  each  of  such  institutions,  for  the  reports  required  to 
be  made  by  the  preceding  section,  a  convenient  number  of  days  prior  to  the  first  day 
of  April  and  October  of  each  year,  upon  receipt  of  which  it  shall  immediately  forward 
to  the  auditor  a  balanced  report  of  its  condition,  verified  by  the  oath  or  affirmation  of 
one  or  more  of  its  officers,  and  shall  also  publish  such  report  in  full,  at  its  own 
expense,  in  a  newspaper  published  at  the  place  where  the  institution  is  located,  or, 
if  there  is  no  newspaper  published  at  that  place,  then  in  the  one  nearest  thereto;  if 
any  such  institution  neglect  to  comply  with  these  provisions  it  shall  be  subject  to  a 
penalty  of  thirty  dollars  for  each  day's  delay  after  the  expiration  of  five  days  from  the 
time  any  such  report  is  required  to  be  made,  which  penalty  may  be  collected  by  a  suit 
to  be  brought  by  the  auditor  of  state,  or  by  any  creditor  of  the  association,  before 
any  court  of  competent  jurisdiction  in  the  district  wherein  such  institution  is  located; 
and  all  sums  of  money  collected  for  penalties  under  this  section  shall  be  paid  into  the 
treasury  of  the  state.     (February  5,   1877,  74  v.  72,  §  2.) 


§  3819.  FORM  OF  REPORT  OF  STOCK  COMPANIES.  —  All  savings  associations, 
banks,  trust  companies,  savings  banks,  and  other  banking  institutions  having  capital 
stock,  shall  make  such  report  of  their  resources  and  liabilities  in  the  following  form: 

Report    of    the    condition    of    "  The  ,"  at  ,  in    the    State    of 


before  the  commencement  of  business  on  the  first  Monday  of 


18—. 


Dr. 

Resources.     Dollars.     Cts. 

1.  Loans  on  real  estate 

2.  All   other    loans   and   dis- 

counts  

3.  Overdrafts 

4.  United    States    bonds    on 

hand 

5.  State  bonds 

6.  Other    stocks,  bonds,  and 

mortgages  ...  .... 

7.  Due  from  other  banks  and 

bankers. .   

8.  Real  estate 

9.  Furniture  and  fixtures. . . . 

10.  Current  expenses 

11.  Premium  on  bonds 

12.  Cash  items 

13.  Gold   coin,   $ ;   Silver 

coin,  $ 

14.  National  bank  notes 

1 5.  United  States  notes 

Total    

State  of , 

County  of 

Sworn  to   and  subscribed  before  me 
this day  of ,  18 — . 


(74  v.  72,  £  3.) 


Or. 


Liabilities 

1.  Capital  stock  paid  in 

2.  Surplus  fund 

Undivided  profits 

State  bank  notes  outstand- 
ing   

Dividends  unpaid 

Individual  deposits 

7.  Due  to  banks  and  bankers, 

8.  Notes      and    bills    re-dis- 

counted   

9.  Bills  payable 


Dollars.     Cts. 


I. 


Total 


,    of  "The 

do  solemnly  swear  that 

the  above  statement  is  true,  to  the  best  of 

my  knowledge  and  belief. 

Cashier. 


510 


Private  Corporations  in  Ohio. 


Reports,  etc. —  Safe  Deposit  Companies,  §§   3820-3821a. 


§  3820.  FORM  OF  REPORT  OF  OTHER  CORPORATIONS.  —  All  savings  asso- 
ciations, savings  banks,  and  other  banking  institutions  having  no  capital  stock,  shall 
make  such  report  of  their  resources  and  liabilities  in  the  following  form: 

Report   of   the  condition   of  "  The "   at  ,   in   the   State   of 


-,  before  the  commencement  of  business  on  the  first  Monday  of 


18—. 

Dr. 
Resources.     Dollars.     Cts. 

1.  I  oans  on  real  estate 

2.  Loans    on    United    States 

and  State  stocks 

3.  Loans  on  other  stocks  and 

bonds 

4.  All  other  loans 

5.  United    States    bonds    on 

hand 

6.  State  bonds  on  hand 

7.  Other  stocks  and  bonds. . . 

8.  Real  estate 

9.  Furniture  and  fixtures. ...  I 

10.  Expenses I 

11.  Due      from      banks      and 

bankers J 

12.  Specie ' 

13.  National  bank  and  United 

States  currency 

14.  All  other  assets 

Total 

State  of , 

County  of . 

Sworn  to   and   subscribed   before   m 
this day  of ,  18 — . 


Cr. 

Liabilities.     Dollars.     Cts. 


1.  Individual  deposits  

2.  Due  to  banks  and  bankers, 

3.  Undivided  profits 

4.  Other  liabilities 


I. 


Total 


of  "  The 

do  solemnly  swear  that 
the  above  statement  is  true,  to  the  best  of 
my  knowledge  and  belief. 

Cashier. 


And  such  associations  and  banks  shall  also  furnish  with  their  reports  a  statement 
showing  the  number  of  open  accounts,  and  the  rate  per  centum  of  dividends  and  of 
interest  on  deposits  for  the  past  year.     (February  5,  1877,  74  v.  72,  §  4.) 

§  3821.  REPORTS  TO  BE  COMPILED  AND  PUBLISHED.  —  The  October  reports 
shall  be  compiled  by  the  auditor  of  state,  and  transmitted  to  the  general  assembly 
with  his  annual  report.      (February  5,  1877,  74  v.  72,  §  5.) 


§  3821a.  POWERS  OF  SAFE  DEPOSIT  COMPANIES;  COURTS  MAY  ORDER 
MONEYS  PAID  INTO  COURT  TO  BE  DEPOSITED  WITH  SUCH  COMPANIES; 
HOW  MONEYS  RECEIVED  IN  TRUST  BY  SUCH  COMPANIES  TO  BE  LOANED; 
REAL  ESTATE  ACQUIRED  BY  SUCH  COMPANY  BY  FORECLOSURE  OF  MORT- 
GAGE, ETC.,  TO  BE  SOLD.  —  Safe  deposit  and  trust  companies  shall  have  power  to 
provide  by  lease  or  purchase  a  proper  and  secure  fire  proof  building  or  buildings  and 
fire  and  burglar  proof  vaults,  or  safes,  and  to  receive  on  deposit  for  safekeeping  therein 
government  securities,  stocks,  bonds,  coins,  jewelry,  plate,  valuable  books,  papers  and 
documents,  and  other  property  of  every  kind,  and  to  collect  and  disburse  the  interest 
or  income  upon  such  of  said  property  received  on  deposit  as  produces  interest  or 
income,  and  to  collect  and  disburse  the  principal  of  such  of  said  property  as  produces 
interest  or  income  when  it  becomes  due,  upon  terms  to  be  prescribed  by  such  company 
so  receiving  such  property.  Said  companies  shall  also  have  power  to  act  as  agent  or 
trustee  for  the  purpose  of  registering,  countersigning  or  transferring  the  certificates 
of  stock,  bonds,  or  other  evidences  of  indebtedness  of  any  corporation,  association, 
municipality,  state,  or  public  authority,  upon  such  terms  as  may  be  agreed  upon. 
Any  court  in  this  state,  including  probate  courts,  may  by  order,  decree  or  otherwise 


Savings  and  Loan  Associations.  511 

Safe  Deposit  Companies,   §  3821b. 

direct  any  moneys  or  properties  under  its  control,  or  that  may  be  paid  into  court 
by  parties  to  any  action  or  legal  proceedings,  or  which  may  be  brought  into  court  by 
reason  of  any  order,  judgment  or  decree,  in  equity  or  otherwise,  to  be  deposited  with 
such  safe-deposit  and  trust  company,  as  may  be  by  such  court  designated,  upon  such 
terms,  and  subject  to  such  instructions  as  may  be  deemed  expedient;  provided,  how- 
ever, that  such  company  shall  not  be  required  to  assume  or  execute  any  trust  with- 
out its  own  consent;  such  companies  shall  also  have  power  to  receive  and  hold 
moneys,  or  property  in  trust,  or  on  deposit  from  executors,  administrators,  assignees, 
guardians,  trustees,  corporations  or  individuals  upon  such  terms  and  conditions  &s 
may  be  obtained  or  agreed  upon  between  the  parties.  All  moneys  or  properties 
received  in  trust  by  such  companies,  unless  by  the  terms  of  the  trust  some  other  mode 
of  investment  is  prescribed,  together  with  the  capital  of  such  company,  shall  be 
loaned  on  or  invested  only  in  the  authorized  loans  of  the  United  States,  or  of  the  state 
of  Ohio,  or  cities,  counties,  or  towns  of  this  state,  or  the  stocks  or  bonds  of  any  state 
in  the  Union  that  has  for  five  years  previous  to  such  investment  being  made  regu- 
larly paid  the  interest  on  its  legal  bonded  debt  in  lawful  money  of  the  United  States, 
or  cities,  counties  or  towns  of  such  states,  which  shall  have  so  paid  the  interest  on 
the  legal  bonded  debt  of  such  cities,  counties  or  towns,  or  stocks  of  national  banks 
organized  within  this  state,  or  the  first  mortgage  bonds  of  any  railroad  company 
within  the  states  above  named,  which  has  earned  and  paid  regular  dividends  on  its 
stocK  for  five  years  next  preceding  such  loan,  or  investment,  or  first  mortgages  on 
real  estate  in  this  state  or  of  individuals  with  a  sufficient  pledge  of  any  of  the  afore- 
said securities,  or  may  be  loaned  to  this  state,  or  to  any  county,  city,  or  town  therein. 
No  loan  shall  ever  be  made,  directly  or  indirectly,  to  any  officer,  employee,  or  trustee 
of  such  company,  and  not  more  than  ten  per  centum  of  its  capital  shall  be  invested 
in  any  one  security  or  loan,  except  in  the  provisions  of  a  building  and  vaults.  All 
real  estate  not  needed  by  such  companies  for  the  transaction  of  its  (their)  business, 
which  may  be  acquired  by  foreclosure  of  mortgage  or  by  levy  of  execution,  shall  be 
offered  for  sale,  and  if  practicable  be  sold  within  two  years  after  the  same  shall  be  so 
acquired.     (April   17,   18S2,  79  v.   101,   102.) 


Powers  of  company, 

A  company  has  power  to  receive  and  hold 
property  in  trust,  and  can  act  as  trustee  un- 


der   a    mortgage. —  Cincinnati    Hotel    Co.    v. 
Trust  Co..  25  W.  L.  B.  375    (1891). 


§  3821b.  ACCOUNT  OF  MONEYS,  ETC.,  RECEIVED  IN  TRUST  SHALL  BE 
KEPT  SEPARATE;  SAID  COMPANIES  MUST  MAINTAIN  A  RESERVE  EQUAL 
TO  FIFTEEN  PER  CENT.  OF  DEPOSITS;  SUCH  COMPANY  MAY  BE  APPOINTED 
TRUSTEE  UNDER  WILL;  CAPITAL  STOCK  SHALL  BE  HELD  AS  SECURITY 
FOR  FAITHFUL  DISCHARGE  OF  DUTIES  UNDER  THIS  ACT;  MONEY  HELD 
IN  TRUST  TO  BE  INVESTED  IN  TRUST  FUNDS  OF  COMPANY;  MONEY  HELD 
IN  TRUST  SHALL  NOT  BE  MINGLED  WITH  OTHER  FUNDS,  OR  BE  LIABLE 
FOR  DEBT  OF  COMPANY;  LIABILITY  OF  STOCKHOLDERS;  TRUSTEES  TO 
NOTIFY  AUDITOR  OF  STATE  OF  ORGANIZATION  OF  COMPANY,  AND  MAKE 
STATEMENT;  AUDITOR  OF  STATE  MAY  APPOINT  EXPERT  TO  EXAMINE 
AFFAIRS  OF  SUCH  COMPANIES;  DIVIDENDS,  AND  HOW  PAID;  INCREASE 
OF  CAPITAL  STOCK;  ASSIGNMENT  AND  TRANSFER  OF  STOCK.  —  All  money 
or  property  held  in  trust  shall  constitute  a  deposit  in  the  trust  department,  and  the 
accounts  thereof  shall  be  kept  separate,  and  such  funds  and  the  investment  or  loans 
of  them  shall  be  especially  appropriated  to  the  security  and  payment  of  all  such 
deposits,  and  not  be  subject  to  any  other  liabilities  of  the  company,  and  for  the  pur- 
pose of  securing  the  observance  of  this  proviso,  such  companies  shall  have  a  trust 
department  in  which  all  business  pertaining  to  such  trust  property  shall  be  kept 
separate  and  distinct  from  its  general  business.  Such  company  shall  at  all  times  have 
on  hand  in  lawful  money  of  the  United  States  as  a  reserve,  an  amount  equal  to  fifteen 
per  centum  of  all  deposits,  payable  on  demand  or  within  ten  days;  and  when  said 


512  Private  Corporations  in  Ohio. 


Safe  Deposit  Companies,  §  3821b. 


reserve  shall  be  below  such  per  centum  of  such  deposits,  said  company  shall  not  make 
new  loans,  nor  make  any  dividends  of  its  profits  until  the  required  proportion  between 
the  aggregate  amount  of  its  deposits  and  its  reserve  shall  be  restored;  provided,  that 
clearing  house  certificates  representing  specie  or  lawful  money  specially  deposited  in 
the  vault  of  such  safe  deposit  company,  or  the  United  States  sub-treasury  for  the 
purpose  of  any  clearing-house  association  of  which  said  company  may  be  a  member, 
may  be  recorded  as  a  part  not  exceeding  one-third  of  said  reserve;  provided  further, 
that  one  other  third  of  said  fifteen  per  centum  shall  consist  of  bonds  of  the  United 
States  or  this  state,  the  absolute  property  of  said  company,  and  the  remaining  third 
of  said  fifteen  per  centum  in  lawful  money  of  the  United  States.     Any  such  company 
may  be  appointed  trustees  under  any  will  or  instrument  creating  a  trust  for  the  care 
and  management  of  property,  under  the  same  circumstances,  in  the  same  manner,  and 
subject  to  the  same  control  by  the  court  having  jurisdiction  of  the  same,  as  in  the 
case  of  a  legally  qualified  person.     The  capital  stock  of  said  company,  with  the  lia- 
bilities of  the  stockholders  existing  thereunder,  shall  be  held  as  security  for  the  faith- 
ful discharge  of  the  duties  undertaken  by  virtue  of  this  act,   and   surety  shall  be 
required  upon  the  bonds  filed  by  such  company  the  same  as  in  other  cases.     In  all 
proceedings  in  the  probate  court,  or  elsewhere,  connected  with  any  authority  exercised 
under  this  act,  all  accounts,  returns  and  other  papers  may  be  signed  and  sworn  to  in 
behalf  of  such  company  by  any  officer  thereof  duly  authorized  by  it;  and  the  answers 
and  examinations  under  oath,  of  such  officer,  shall  be  received  as  the  answers  and 
examination  of  the  company,  and  the  court  may  order  and  compel  any  and  all  officers 
of  such  company  to  answer  and  attend  said  examinations  in  the  same  manner  as  if 
they  were  parties  to  the  proceedings  or  inquiry,  instead  of  such  company;  provided, 
however,  that  such  company  shall  not  be  required  to  receive  or  hold  any  property  or 
moneys,  or  to  execute  any  trust  contrary  to  its  own  desire.     In  the  management  of 
money  and  property  held  by  it  as  trustee,  under  the  powers  conferred  in  the  foregoing 
section,  said  companies  shall  invest  the  same  in  the  general  trust  fund  of  the  com- 
pany;   provided,  that  it  shall  be  competent  for  the  authority  making  the  appointment 
to  direct,  upon  the  conferring  of  the  same,  whether  such  money  and  property  shall  be 
held  separately  or  invested  in  a  general  trust  fund  of  the   company;  and  provided, 
also,  that  said  company  shall  always  be  bound  to  follow  and  be  entirely  governed  by 
all  directions  contained  in  any  will  or  instrument  under  which  it  may  act.     No  money, 
property  or  securities  received  or  held  by  such  company  under  the  provisions  of  this 
act  establishing  a  trust  department,   shall  be  mingled  with  the  investments   of  the 
capital  stock  or  other  moneys  or  property  belonging  to  said  company,  or  be  liable  for 
debts  or  obligations  thereof.     The  stockholders  of  such  company  shall  be  held  indi- 
vidually  liable   for   all   contracts,   debts   and   engagements   of   such   company,   to  the 
extent  of  the  amount  of  their  stock  therein  at  the  par  value  thereof,  in  addition  to  the 
amount  invested  in  such  shares.     The  trustees  of  all  companies  organized  under  this 
act  shall,   within   six  months   after   the   incorporation   of   such   company,   notify   the 
auditor  of  state  of  the  date  of  the  organization  thereof,  and  shall,   within  ten  days 
after  the  annual  meeting  thereof  in  each  year,  make,  under  oath,  a  complete  statement 
of  the  condition  of  said  company,  in  which  they  shall  specify  the  different  kinds  of  its 
liabilities,   and   the   different   kinds   of  its  assets,   stating  the  amount  of   each  kind, 
which  statement  shall  be  filed  with  the  auditor  of  state,  and  published  in  his  annual 
report;  and  said  auditor  of  state   shall  have  the  right  and  the   power  at  any  time, 
through  an  expert  appointed  by  him,  to  make  a  full  examination  of  the  affairs  and 
condition  of  every  such  company.     The  trustees  shall  also  cause  said  statement  to  be 
published  in  a  newspaper  of  general  circulation  in  the  county  in  which  the  principal 
office  of  such  company  shall  be  located.     The  trustees  shall  have  power  by  their  by- 
laws, as  often  as  they  may  deem  proper,  to  make  and  declare  dividends  of  the  profits 
of  said  company  after  paying  its  expenses  and  reserving  and  setting  aside  the  reserve 
as  hereinbefore  required,  and  such  other  amount  as  they  deem  advisable  wherewith  to 
meet  any  contingency  in  its  business.     The  dividends  authorized  herein  shall  be  pay- 


Savings  and  Loan  Associations.  513 

Safe  Deposit  Companies,    S§   3821c,   3821d. 

able  to  the  shareholders  within  twenty  days  from  and  after  the  time  the  same  are  so 
declared.  No  company  organized  under  this  act  shall  commence  business  until  all  of 
its  authorized  capital  shall  have  been  paid  up  in  cash.  Any  safe  deposit  and  trust 
company  may  increase  its  capital  stock  as  provided  in  sections  3262  and  3263  of  the 
Revised  Statutes,  and  in  case  of  such  increase,  either  by  preferred  or  common  stock, 
the  board  of  directors  of  such  company  may  sell  such  increase,  or  additional  stock,  t^ 
such  person  or  persons,  at  such  price,  not  less  than  par,  as  they  deem  best,  and  to  the 
interests  of  such  company.  The  stockholders  of  such  company  shall  have  power  to 
provide  and  determine,  as  they  may  see  fit,  the  conditions  upon  which  the  shares 
of  stock  of  said  company  shall  be  assignable  and  transferable,  and  said  shares  of  stock 
of  said  company  shall  be  assignable  and  transferable  according  to  such  rules  and 
regulations  and  upon  such  conditions  as  the  stockholders  shall  for  that  purpose  make 
and  establish,  and  not  otherwise.  (April  4,  1902,  95  v.  98;  April  17,  1882,  79  v. 
101,  104.) 

§  3821c.  TRUST  CAPACITIES  IN  WHICH  SUCH  COMPANIES  MAY  ACT.  — 
Companies  organized  under  the  acts  to  which  this  is  supplementary,  and  engaged  in 
the  business  of  safe  deposit  and  trust  companies,  in  addition  to  the  powers  already 
possessed,  shall  have  the  power  to  take,  accept  and  execute  all  such  trusts  of  every 
description  as  may  be  committed  to  such  company  by  any  person  or  persons,  or  any 
corporation,  by  grant,  assignment,  devise  or  bequest,  or  which  may  be  committed 
or  transferred  to,  or  vested  in  said  company,  whether  the  same  be  to  act  as  executor, 
administrator,  assignee,  guardian,  receiver  or  trustee,  or  in  any  other  trust  capacity, 
by  order  of  any  court  of  record  or  probate  court,  in  the  county  in  which  such  company 
is  located,  and  its  principal  business  is  transacted,  or  of  any  court  of  record  or  pro- 
bate court  of  any  other  state,  or  of  the  United  States,  to  receive  and  take  any  real 
estate  which  may  be  (the)  subject  of  any  such  trust,  and  to  act  as  agent  under  any 
power.  Provided,  any  such  appointment  as  guardian  shall  apply  to  the  estate  only, 
and  not  to  the  person.     (May  16,   1894,  91  v.  255;  April  26,   1891,  88  v.  407.) 

§  3821d.  LIABILITY;  ADDITIONAL  SECURITY;  PAID  UP  CAPITAL 
REQUIRED;  DEPOSIT.  —  The  capital  of  such  companies  shall,  with  all  their  prop- 
erty and  effects,  be  absolutely  liable  in  case  of  any  default  whatever  in  any  of  the 
trust  positions  aforesaid  and  shall,  together  with  the  statutory  liability  of  the  stock- 
holders, be  taken,  and  considered  as  the  only  security  required  by  law,  and  such  com- 
panies shall  not  be  required  to  give  in  any  trust  capacity  any  other  bond,  security, 
oath  or  undertaking.  The  probate  judge  may,  at  any  time  he  deems  proper,  require 
additional  security  in  any  amount  he  may  think  necessary.  Provided,  however,  that 
no  such  company  whose  principal  place  of  business  is  in  a  city  of  the  first  class  or  in 
a  city  of  the  first  grade  of  the  second  class  or  in  a  city  not  of  the  second  grade  of  the 
second  class  which  by  the  last  preceding  federal  census  had  a  population  of  thirty- 
three  thousand  or  more,  shall  accept  any  trusts  which  may  be  vested  in,  transferred 
or  committed  to  it  by  any  individual  or  by  any  court  of  record,  as  provided  in  section 
3821c,  until  the  capital  stock  of  said  company  shall  amount  to  two  hundred  thousand 
dollars,  fully  paid  up,  and  until  such  company  shall  have  deposited  with  the  treas- 
urer of  state  one  hundred  thousand  dollars  in  cash,  or  in  securities  in  which  said 
company  is  by  law  allowed  to  invest  its  capital;  and  provided  that  no  such  company 
whose  principal  place  of  business  is  in  a  city  of  the  second  class,  which  city  by  the 
last  preceding  federal  census  had  a  population  of  less  than  thirty-three  thousand 
shall  accept  any  trusts  which  may  be  vested  in,  transferred  or  committed  to  it  by  any 
individual  or  by  any  court  of  record,  as  provided  in  section  3821c.  until  the  capital 
stock  of  said  company  shall  amount  to  fifty  thousand  dollars,  fully  paid  up,  and  until 
svch  company  shall  have  deposited  with  the  treasurer  of  state  twenty-five  thousand 
dollars  in  cash,  or  in  securities  in  which  said  company  is  by  law  allowed  to  invest  its 
capital;  provided,  the  full  amount  of  such  deposit  so  to  be  made  by  any  such  com- 


514  Private  Corporations  in  Ohio. 


Safe  Deposit  Companies,   §§  3821e-3821gg. 


pany  may  be  made  in  bonds  of  the  United  States  or  state  of  Ohio;  the  treasurer  of 
state  shall  hold  such  fund  or  securities  deposited  with  him  as  security  for  the  faith- 
ful performance  of  all  the  trusts  assumed  by  said  company,  but  so  long  as  any  such 
company  shall  continue  solvent,  said  treasurer  shall  permit  it  zo  collect  the  interest  of 
or  dividends  on  its  securities  so  deposited,  and  from  time  to  time  to  withdraw  such 
securities  or  cash,  or  any  part  thereof,  on  depositing  with  him  cash,  or  other  securities 
of  the  kind  heretofore  named,  so  as  to  maintain  the  value  of  said  deposit  as  here- 
inbefore provided.  (April  12,  1900,  94  v.  132;  April  18,  1892,  89  v.  370;  April  28, 
1891,  88  v.  407.) 

§  3821e.  EXAMINATION  OF  COMPANY.  —  Any  judge  of  the  court  in  which 
any  such  company  is  acting  in  such  trust  capacity,  may,  if  he  deem  it  necessary,  or 
upon  the  written  application  of  any  party  interested  in  the  estate  which  such  com- 
pany holds  in  any  trust  capacity,  at  any  time,  appoint  a  suitable  person  or  persons, 
who  shall  investigate  the  affairs  and  management  of  such  company  concerning  said 
trust,  and  make  sworn  report  to  such  court  of  such  investigation;  the  expense  of  such 
investigation  shall  be  defrayed  by  the  party  asking  such  examination;  and  any  such 
court  may,  at  any  time,  examine  any  officer  or  officers  of  such  company,  under  oath 
or  affirmation,  as  to  the  company's  trust  matters  in  such  court,  or  as  to  its  finances 
and  management  while  considering  its  appointment  in  any  such  capacity;  and  such 
court  may,  for  any  cause  applicable  to  natural  persons  in  the  same  capacity,  order 
that  said  company  shall  forthwith  settle  its  trust  in  said  court.  (April  28,  1891, 
88  v.  407.) 

§  3821f.  PROVISIONS  APPLICABLE  TO  PROBATE  COURTS  OF  CERTAIN 
COUNTIES. — The  provisions  of  sections  3821c,  3821d  and  3821e  relating  to  the 
power  of  the  probate  judge  to  appoint  any  such  company  to  act  as  executor,  adminis- 
trator, assignee,  guardian,  receiver  or  trustee,  shall  apply  to  probate  courts  in  all 
counties  containing  a  city  of  the  first  class,  and  to  all  probate  courts  in  counties  con- 
taining a  city  of  the  second  class,  containing  by  the  last  preceding  federal  census  a 
population  of  less  than  33,000.  (April  12,  1900,  94  v.  133;  April  25,  1894,  93  v. 
337;  March  13,  1896,  92  v.  62;  May  6,  1894,  91  v.  255;  April  28,  1891,  88  v.  407.) 

§  3821g.  LOANS  ON  OR  INVESTMENTS  IN  STOCKS.— Any  safe  deposit  and 
trust  company  organized  under  the  acts  to  which  this  is  supplementary,  and  engaged 
(exclusively)  in  the  business  of  a  safe  deposit  and  trust  company,  may  loan  or  invest 
any  moneys  or  properties  received  in  trust  by  such  company,  together  with  the  capital 
of  such  company,  in  the  following  securities,  in  addition  to  those  now  authorized  by 
law,  i.  e.  in  the  stocks  or  (of)  gas  light  and  coke  companies,  gas  companies,  gas  and 
electric  light  companies,  or  stocks  of  street  railway  companies  which  have  paid  regu- 
lar dividends  on  their  stock  for  five  years  next  preceding  such  loan  or  investment,  and 
are  located  in  the  county  in  which  such  safe  deposit  and  trust  company  is  located,  or 
in  which  it  has  its  principal  office;  provided,  however,  that  no  investment  of  any 
moneys  or  properties  held  in  trust  by  any  such  company,  or  investment  of  any  part 
cf  the  capital  of  any  such  safe  deposit  and  trust  company  shall  be  made  in  the  stock 
of  any  such  gas  light  and  coke  company,  gas  company,  gas  and  electric  light  company, 
or  street  railway  company,  unless  authorized  by  the  board  of  directors  of  such  safe 
deposit  and  trust  company  by  resolution  entered  upon  its  minutes;  and  provided 
further,  that  not  more  than  ten  per  centum  of  the  capital  of  any  such  safe  deposit  and 
trust  company  shall  be  invested  or  loaned  in  any  one  security  or  loan.  (May  4,  1894, 
91  v.  201.) 

§  3821gg.  MAY  EXERCISE  POWER  OF  SAFE  DEPOSIT  AND  TRUST  COM- 
PANIES, WHEN.  STOCKHOLDERS'  CONSENT  NECESSARY.—  That  any  company 
now  incorporated  under  the  laws  of  the  state  of  Ohio,  as  a  savings  and  loan  associa- 


Savings  and  Loan  Associations.  515 

Title  Guarantee  and  Trust  Companies,  §  3821ggg. 


tion,  and  having  at  the  time  of  the  passage  of  this  act,  a  paid  up  capital  stock  of 
not  less  than  two  hundred  thousand  dollars,  and  organized  and  doing  business  in  this 
state,  or  any  company  heretofore  organized  under  the  laws  of  this  state,  as  a  safe 
deposit  and  trust  company,  may  also  engage  in  business  as  a  safe  deposit  and  trust 
company,  under  and  in  accordance  with  the  provisions  of  section  3821a,  3821b, 
3821c,  3821d,  3821e,  3821g,  of  the  Revised  Statutes  of  Ohio.  Provided,  however, 
that  no  such  company  shall  be  authorized  to  engage  in  business  as  such  safe  deposit 
and  trust  company,  until  after  the  holders  of  at  least  two-thirds  in  amount,  of  the 
capital  stock  of  such  company  shall  have  voted  in  favor  of  so  doing,  at  a  meeting  of 
the  stockholders  called  for  the  purpose  of  considering  such  question.  Upon  the  stock- 
holders of  any  such  company  voting  in  favor  of  a  resolution  to  engage  in  business  as 
a  safe  deposit  and  trust  company,  as  provided  in  this  act,  the  president  and  secretary 
of  such  corporation  shall  make,  and  file  with  the  secretary  of  state  a  certificate  under 
the  seal  of  such  corporation,  showing  the  action  of  the  stockholders  in  this  behalf, 
and  the  number  of  shares  voted  in  favor  of  the  proposition,  and  thereupon  such  cor- 
poration shall  have  all  the  powers,  and  be  subject  to  all  the  regulations,  obligations, 
liabilities  and  conditions  which  safe  deposit  and  trust  companies  have  and  are  sub- 
ject to,  under  the  several  sections  of  the  Revised  Statutes  to  which  this  act  is  sup- 
plemental.     (October  22,   1902,  ;  April  16,  1900,  94  v.  340.) 

§  3821ggg.  TITLE  GUARANTEE  AND  TRUST  COMPANIES;  POWERS.  ETC. 
—  A  title  guarantee  and  trust  company  shall  have  power  to  prepare  and  furnish 
abstracts  and  certificates  of  title  to  real  estate,  bonds,  mortgages  and  other  securities, 
and  to  guarantee  such  titles  and  the  validity  and  due  execution  of  such  securities, 
and  the  performance  cf  contracts  incident  to  such  .powers;  to  make  loans  for  itself 
or  as  agent  or  trustee  for  others,  and  to  guarantee  the  collection  of  interest  and  prin- 
cipal of  such  loans;  to  take  charge  of  and  sell,  mortgage,  rent  or  otherwise  dispose 
of  real  estate  for  others,  and  to  perform  all  the  duties  of  an  agent  relative  to  property 
deeded  or  otherwise  entrusted  to  it. 

AMOUNT  OF  CAPITAL  STOCK  REQUIRED.  DEPOSIT  WITH  TREASURER 
OF  STATE.  —  Provided,  however,  that  no  such  company  shall  do  business  until  the 
capital  stock  of  said  company  shall  amount  to  five  hundred  thousand  dollars  fullv 
paid  up,  and  until  such  company  shall  have  deposited  with  the  treasurer  of  state 
two  hundred  and  fifty  thousand  dollars  in  the  securities  permitted  by  sections  3637 
and  3638  of  the  Revised  Statutes  of  Ohio,  and  with  the  exception  of  the  deposit  afore- 
said said  capital  shall  be  invested  as  the  board  of  directors  of  said  company  may 
prescribe.  The  treasurer  of  state  shall  hold  such  fund  or  securities  deposited  with 
him  as  security  for  the  faithful  performance  of  all  guarantees  entered  into  by  said 
company,  but  so  long  as  said  company  shall  continue  solvent  said  treasurer  shall 
permit  it  to  collect  the  interest  of,  or  dividends  on,  its  securities  so  deposited,  and 
from  time  to  time  withdraw  such  securities,  or  any  part  thereof,  on  depositing  with 
him  cash  or  other  securities  of  the  kind  heretofore  named  so  as  to  maintain  the  value 
of  said  deposit  at  two  hundred  and  fifty  thousand  dollars. 

TRANSFER  OF  DEPOSIT  WITH  SUPERINTENDENT  OF  INSURANCE  TO 
TREASURER  OF  STATE.  —  Any  company  heretofore  organized  for  the  purposes  of 
guaranteeing  the  titles  to  real  property,  which  may  have  made  deposits  with  the 
superintendent  of  insurance,  as  required  in  section  3641d  of  the  Revised  Statutes  of 
Ohio,  may  request  said  superintendent  to  transfer  said  deposit  to  the  treasurer  of 
state,  whereupon  he  shall  transfer  all  securities  of  such  company  so  held  by  him  to 
the  treasurer  of  state,  taking  his  receipt  therefor. 

REPORTS  TO  AUDITOR  OF  STATE.  —  Title  guarantee  and  trust  companies  shall 
make  such  reports  to  the  state  auditor  as  are  required  of  safe  deposit  and  trust  com- 
panies and  shall  be  subject  to  the  same  examinations  and  penalties  as  such  companies; 
and  it  is  hereby  expressly  provided  that  all  companies  doing  the  business  of  guaran- 


516  Private  Corporations  in  Ohio. 

Consolidation  of  Certain  Companies,   §§   1-6. 

teeing  titles  to  real  property  shall  comply  with  and  be  governed  by  the  provisions 
of  this  act,  and  section  3641  of  the  Revised  Statutes  of  Ohio  shall  net  apply  to  such 
companies.      (April  22,   1902,  95  v.  222.) 

An  Act  to  Authorize  the  Consolidation   of   Savings   and    Loan,  Associations 
With    Safe    Deposit    and    Trust    Companies    in    Certain    Cases. 

Be  it  enacted  by  the  General  Assembly  of  the  State  of  Ohio: 

Section  1.  CONSOLIDATION  OF  SAVINGS  AND  LOAN  ASSOCIATIONS  WITH 
SAFE  DEPOSIT  AND  TRUST  COMPANIES  AUTHORIZED.  —  That  any  corporation 
organized  to  exercise  the  powers  granted  to  savings  and  loan  associations  and  any 
corporation  organized  to  exercise  the  powers  granted  to  safe  deposit  and  trust  com- 
panies may,  when  not  less  than  one-fourth  of  the  capital  stock  of  each  is  held  by 
the  same  persons,  and  their  boards  of  directors,  or  trustees  are  composed  in  whole 
or  in  part  of  the  same  persons,  consolidate  themselves  into  a  single  corporation  under 
such  name  and  on  such  terms  as  shall  be  approved  by  not  less  than  two-thirds  of  the 
stockholders  of  each  company.      (May  10,   1902,  95  v.   531.) 

§  2.  PROCEEDINGS  IN  SUCH  ACTION.  —  The  proceedings  to  affect  such  con- 
solidation shall  be  the  same  as  those  provided  by  section  3381  of  the  Revised  Statutes 
of  Ohio  for  the  consolidation  of  railroad  companies.      (May  10,  1902,  95  v.  531.) 

§  3.  POWERS  AND  DUTIES,  ETC.,  AFTER  CONSOLIDATION.  —  When  the 
agreement  of  consolidation  is  so  made  and  perfected  and  the  same,  or  a  copy  thereof,  is 
[filed]  filled  with  the  secretary  of  state,  the  several  companies,  parties  thereto,  shall 
be  held  and  taken  to  be  one  company  possessing  all  the  rights,  privileges,  powers 
and  franchises  of  said  several  companies,  but  subject  to  all  aid  singular  the  provi- 
sions of  law  relating  to  the  different  branches  of  the  business  of  such  new  company 
the  same  as  though  conducted  by  separate  companies.     (May  10,  1902,  95  v.   531.) 

§  4.  OFFICERS;  TRANSFER  OF  PROPERTY;  RIGHTS  OF  CREDITORS,  ETC. 
—  The  directors  and  other  officers  named  in  the  agreement  of  consolidation  shall  serve 
until  the  first  annual  election,  the  time  for  which  shall  be  named  in  said  agreement; 
and  on  the  filing  of  said  agreement  or  a  copy,  as  aforesaid,  all  and  singular  the  prop- 
erty, real,  personal  and  mixed,  and  all  rights  of  every  kind  of  said  several  companies 
shall  be  deemed  to  be  transferred  to  and  vested  in  such  new  company  without  further 
act  or  deed,  and  shall  be  as  effectually  the  property  of  such  new  company  as  they 
were  of  the  companies  parties  to  said  agreement;  but  all  rights  of  creditors  shall  be 
preserved  unimpaired  and  the  respective  companies  may  be  deemed  to  be  in  existence 
to  preserve  the  same;  and  all  debts,  liabilities  and  duties  of  either  of  said  companies 
shall  thenceforth  attach  to  the  new  company  and  be  enforced  against  it  to  the  same 
extent  as  if  the  same  had  been  contracted  by  it.      (May  10,  1902,  95  v.  531.) 

§  5.  WHEN  SECTION  148A  REVISED  STATUTES  SHALL  NOT  APPLY.  — 
When  the  articles  of  the  constituent  companies  were  filed  at  the  same  time  [and]  by 
the  same  incorporators  and  the  capital  stock  named  in  the  agreement  of  consolidation 
does  not  exceed  the  sum  of  the  capital  stocks  of  the  constituent  companies  the  provi- 
sions of  subdivision  3  of  section  148a  of  the  Revised  Statutes  shall  not  apply;  pro- 
vided the  fees  named  in  subdivision  1  of  said  section  were  duly  paid  by  said  con- 
stituent companies  and  the  agreement  of  consolidation  is  filed  within  two  years  after 
the  creation  of  said  constituent  companies.     (May  10,  1902,  95  v.  531.) 

§  6.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage.  (May 
10,  1902,  95  v.  531.) 


Savings  and  Loan  Associations.  517 


Collateral  Loan   Companies,   §§   3821h-3821n. 


COLLATERAL  LOAN  COMPANIES  IN  CUYAHOGA. 
§  3821h.  COLLATERAL  LOAN  COMPANIES;  THEIR  OBJECT.  —  In  all  coun- 
ties containing  a  city  of  the  second  grade  of  the  first  class,  any  number  of  persons 
not  less  than  seven,  may  associate  and  form  a  collateral  loan  company  in  the  manner 
prescribed  by  the  Revised  Statutes.  The  object  of  such  association  shall  be  to  make 
loans  upon  pledges  of  goods  and  chattels  of  every  kind;  also,  on  mortgage  on  gooda 
and  chattels.  It  shall  not  do  a  deposit  or  exchange  business,  nor  shall  it  make  loans 
upon  any  other  kind  of  securities  than  that  above  named.      (April  16,  1885,  82  v.  132.) 

§  3821L  CAPITAL  STOCK;  POWER  TO  BORROW.  —  The  capital  of  said  com- 
pany shall  be  raised  by  subscription.  It  shall  not  exceed  five  hundred  thousand 
dollars,  in  shares  of  fifty  dollars  each;  and  no  one  person  shall  own  more  than  one- 
seventh  of  the  stock  subscribed.  It  shall  have  the  power  to  borrow  on  its  own  notes, 
not  exceeding  the  amount  of  its  capital  paid  in,  and  for  periods  not  exceeding  one 
year.      (May  12,   1886,  83  v.   144;  April  16,   1885,  82  v.   132.) 

§  3821J.  BOARD  OP  DIRECTORS;  CPPICERS;  BY-LAWS.  —  The  government 
of  the  company  shall  be  in  a  board  of  seven  directors,  who  shall  be  residents  of  the 
county  where  the  association  is  located,  five  of  whom  shall  be  chosen  annually  by  the 
stockholders,  together  with  one  to  be  appointed  by  the  governor  of  the  state,  and  one 
to  be  appointed  by  the  mayor  of  the  city  where  such  company  may  be  located,  whose 
term  of  office  shall  also  be  for  one  year.  The  board  thus  created  shall  elect  one  of 
their  number  president,  and  such  other  officers  as  may  be  deemed  necessary;  said 
directors  may  also  establish  such  by-laws,  rules  and  regulations  for  conducting  the 
business  of  said  company  as  they  may  deem  necessary,  not  inconsistent  with  the  laws 
of  this  state.     (April  16,  1885,  82  v.  132.) 

§  3821k.  ORGANIZATION. — When  twenty  thousand  dollars  have  been  duly 
subscribed,  and  one-f  om*th  of  r  aid  subscribed  capital  has  been  actually  paid  in,  the 
stockholders  may  organize,  as  hereinbefore  provided,  and  proceed  to  transact  business 
■under  the  provisions  of  this  act.  (May  12,  1886,  83  v.  144;  April  16,  1885,  82 
v.   132.) 

§  38211.  LOANS;  RATE  OF  INTEREST,  ETC.  —  When  the  company  has  dis- 
posable funds,  it  shall  loan  on  all  goods  and  chattels  offered,  embraced  within  its 
rules  and  regulations,  in  the  order  in  which  they  are  offered;  with  the  exception  that 
the  company  shall  always  discriminate  in  favor  of  small  loans  to  the  indigent.  It 
shall  loan  to  four-fifths  of  the  appraised  value  on  gold  and  silver  plate  and  ware, 
and  to  two-tbirds  of  such  value  on  all  other  goods  and  chattels  as  aforesaid.  In  no 
case  shall  the  rate  of  interest  charged  exceed  eight  per  cent,  per  annum,  and  any  other 
charges,  including  insurance,  investigation  of  titles,  and  the  expense  of  the  custody 
and  care  of  all  property  offered  as  security  shall  not  exceed  ten  per  cent,  per  annum 
on  the  amount  loaned.      (May  12,  1886,  83  v.   144;  April  16,   1885,  82  v.   132.) 

§  3821m.  MATURITY  OF  LOANS;  RIGHT  TO  REDEEM.  —  All  loans  shall  be 
en  a  time  fixed,  and  for  a  period  of  not  over  one  year;  and  the  pledger  shall  have  the 
right  to  redeem  his  property  pledged,  at  any  time,  within  the  specified  period,  at  the 
rate  of  compensation  to  the  time  of  offer  to  redeem.     (April  16,  1885,  82  v.  132.) 

§  3821n.  SALE  OF  UNREDEEMED  PROPERTY;  PROCEEDS:  PAWN  TICK- 
ETS. —  If  the  property  pledged  is  not  redeemed  within  the  time  limited,  the  same 
shall  be  sold  at  auction,  and  the  net  surplus,  after  paying  loan  charges  and  expenses, 
shall  be  held  one  year  for  the  owner;  when,  if  not  demanded  within  said  year,  it  shall 
be  forfeited  to  the  company.  The  company  shall  give  to  each  pledger,  a  card  inscribed 
with  the  name  of  the  company,  the  article  or  articles  pledged,  name  of  the  pledger, 
the  amount  of  the  loan,  the  rate  of  compensation,  the  date  when  made,  the  date  when 
payable,  and  the  page  of  the  book  where  recorded.     (April  16,  1885,  82  v.  132.) 


518  Private  Corporations  in  Ohio. 


Collateral  Loan  Companies  —  Bond  and  Investment  Companies,   §§   3821o-3821r. 


§  3821o.  REPORTS  OF  COMPANY'S  BUSINESS.  —  The  president  and  directors 
of  said  company  shall  report  in  writing,  to  the  stockholders  and  to  the  governor  of 
the  state,  full  and  accurate  statistics  of  its  business,  and  of  its  financial  condition, 
in  the  month  of  November,  in  each  year,  and  at  such  other  times  as  they  may  be 
requested  to  do  so  by  the  governor  of  the  state.      (April  16,   1885,  82  v.   132.) 

§  3821p.  TRANSFER  OF  STOCK. — The  stock  of  said  company  shall  be  trans- 
ferable only  at  the  office  of  said  company,  and  on  its  books.  (April  16,  1885,  82 
v.   132.) 

§  3821q.  APPLICABILITY  OF  STATUTES  TO  STOCKHOLDERS.  —  The  stock- 
holders of  said  corporations  shall  be  subject  to  the  provisions  of  section  three  thou- 
sand two  hundred  and  fifty-eight  of  the  Revised  Statutes  of  Ohio,  and  to  all  other  pro- 
visions of  the  Revised  Statutes  where  applicable.      (April   16,   1885,  82  v.   132.) 

BOND  AND  INVESTMENT  COMPANIES. 

§  3821r.  Sec.  1.  MUST  MAKE  DEPOSIT  WITH  STATE  TREASURER,  UPON 
COMMENCING  BUSINESS.  —  That  every  corporation,  partnership  and  association, 
other  than  a  building  and  loan  company,  which  shall  hereafter  commence,  in  this 
state,  the  business  of  placing  or  selling  certificates,  bonds,  debentures,  or  other  invest- 
ment securities  of  any  kind  or  description,  on  the  partial  payment  or  installment 
plan,  and  every  investment  guaranty  company  doing  business  on  the  service  dividend 
plan,  shall,  before  doing  business  in  Ohio,  deposit  with  the  state  treasurer  one  hun- 
dred thousand  dollars  in  cash  or  bonds  of  the  United  States,  or  of  the  state  of  Ohio, 
or  of  any  county  or  municipal  corporation  in  the  state  cf  Ohio,  for  the  protection  of 
the  investors  in  such  certificates,  debentures  or  other  investment  securities.  Such 
deposit  of  one  hundred  thousand  dollars  shall  be  made  out  of  the  paid-up  capital 
stock  of  such  corporation,  partnership  or  association. 

DEPOSIT  BY  COMPANIES  ALREADY  IN  OPERATION  IN  OHIO.  —  And  every 
corporation,  partnership  or  association  now  doing  such  business  in  the  state  of  Ohio 
shall,  in  addition  to  the  amount  now  on  deposit  with  the  state  treasurer  by  such  cor- 
poration, partnership  or  association,  on  or  before  the  10th  day  of  January  of  each 
year,  deposit  with  the  state  treasurer,  either  in  cash,  or  bonds  of  the  United  States,  or 
of  the  state  of  Ohio,  or  of  any  county  or  municipal  corporation  in  the  state  of  Ohio, 
an  amount  equal  to  ten  per  cent,  of  the  gross  receipts  on  the  amount  of  business  done 
by  it  in  the  state  of  Ohio  for  the  twelve  months  next  preceding  the  31st  day  of  Decem- 
ber; and  the  said  deposit  shall  be  made  each  year  as  aforesaid  until  the  total  amount 
of  such  cash  or  bonds  so  deposited  shall  amount  to  one  hundred  thousand  dollars. 

MINIMUM  AMOUNT  OF  DEPOSIT.  —  Provided,  every  such  corporation,  partner- 
ship or  association  now  doing  such  business  in  the  state  of  Ohio  shall  have  on  deposit 
with  the  state  treasurer  not  less  than  twenty-five  thousand  dollars  out  of  its  paid-up 
capital  stock. 

PURPOSE.  —  The  deposit  made  with  the  treasurer  shall  be  held  as  a  security  for 
all  claims  of  residents  of  this  state  against  such  corporation,  partnership  or  associa- 
tion, and  shall  be  liable  for  all  judgments  or  decrees  thereon,  and  subjected  to  the  pay- 
ment of  the  same  in  the  same  manner  as  the  property  of  other  non-residents.  Should 
any  such  corporation,  partnership  or  association  cease  to  do  business  in  this  state,  the 
treasurer  may  release  securities  in  his  discretion,  retaining  sufficient  to  satisfy  all 
outstanding  liabilities.     (April  25,  1898,  93  v.  402;  April  14,  1900,  94  v.  147.) 

See,  generally,  State  ex  rel.  v.  Ins.  Co.,  43 
W.  L.  B.  407  (1900)  ;  Shaw  v.  Interstate  Co., 
5  N.  P.  411    (1898). 


When  business   is  fraudulent. 

See  State  ex  rel.  v.  Interstate  Investment 
Co.,  45  W.  L.  B.  225  (1901);  Woods  v.  Equi- 
table Debenture  Co.,  8  N.  P.  125  (1901). 


Deposit  —  source  of. 

See   Ohio  v.    Matthews,    43   W.    L.   B.    221 
(1900). 


State    treasurer    necessary   party   to    ac- 
tion to  wind  up. 

See  Everhardt  v.   United  States  Investment 
Co.,  8  N.  P.  525   (1901). 


Savings  and  Loan  Associations.  519 


Bond  and  Investment  Companies,   S§   3821s  3821w. 


§  3821s.  Sec.  2.  CONDITIONS  PRECEDENT  TO  DOING  BUSINESS.  —  Every 
such  corporation,  partnership  and  association  shall,  as  a  condition  precedent  to  trans- 
acting business  in  this  state,  comply  with  the  following  conditions,  to  wit: 

Eirst.  COPY  OE  CHARTER.  —  It  shall  file  with  the  supervisor  of  bond  invest- 
ment companies,  a  certified  copy  of  its  charter  or  articles  of  incorporation,  constitu- 
tion and  by-laws,  and  other  rules  and  regulations  showing  its  manner  of  conducting 
business. 

Second.  STATEMENT  OF  BUSINESS  OF  PRECEDING  YEAR.  —  It  shall  also 
file  with  the  supervisor  a  statement  under  oath  of  the  president  and  secretary  or  other 
managing  officer  in  the  form  by  the  supervisor  required,  of  its  business  for  the  pre- 
ceding  year. 

Third.  PROCESS.  —  It  shall  also  file  with  the  supervisor  a  written  instrument, 
duly  executed,  agreeing  that  a  summons  may  issue  against  it  from  any  county  in  this 
state  directed  to  the  sheriff  of  the  county  in  which  the  office  of  supervisor  is  situate, 
commanding  him  to  serve  the  same  by  certified  copy  personally  upon  the  supervisor 
or  by  leaving  a  copy  thereof  at  his  office.  The  supervisor  shall,  however,  mail  a  copy 
of  any  papers  served  on  him,  postage  prepaid,  to  the  home  office  of  such  corporation, 
partnership  or  association.      (April  14,  1900,  94  v.  148;  April  25,  1898,  93  v.  401.) 

§  3821t.  Sec.  3.  CERTIFICATE  OF  AUTHORITY  TO  DO  BUSINESS.  —  When- 
over  sucn  company,  partnership  or  association  has  complied  with  the  provisions  of 
this  act,  and  the  supervisor  is  satisfied  that  it  is  doing  business  in  accordance  with 
law,  he  shall  issue  to  such  company,  partnership  or  association  a  certificate  of  author- 
ity to  do  business  in  Ohio.  Annually  thereafter,  upon  the  filing  of  the  annual  state- 
ment herein  provided  for,  if  the  supervisor  shall  be  satisfied  as  aforesaid,  he  shall 
issue  a  renewal  of  such  certificate  of  authority. 

REVOCATION.  —  And  said  authority  shall  be  revoked  whenever  the  supervisor 
on  investigation  or  examination  finds  that  such  company,  partnership  or  association 
is  not  transacting  business  in  accordance  with  law,  or  that  the  statement  of  its  con- 
dition and  affairs  required  under  the  provisions  of  this  act  are  false  and  fraudulent, 
'or  for  failure  to  file  the  annual  statement.  (April  14,  1900,  94  v.  148;  April  25, 
1898,  93  v.  402.) 

§  3821u.  Sec.  4.  INTEREST  ON  SECURITIES  DEPOSITED.  —  Every  such  com- 
pany, partnership  or  association  may  collect  and  use  the  interest  of  any  securities  so 
deposited,  so  long  as  it  fulfills  its  obligations  and  complies  with  the  provisions  of 
this  act.  It  may  also  exchange  them  for  other  securities  of  equal  value  and  satis- 
factory to  the  treasurer.      (April  14,  1900,  94  v.  149;  April  25,  1898,  93  v.  402.) 

§  382 lv.  Sec.  5.  AGENTS  TO  BE  LICENSED. —It  shall  be  unlawful  for  any 
agent  of  every  such  company,  partnership  or  association  to  transact  business  in  this 
state  without  being  first  regularly  appointed  thereby  and  being  licensed  by  a  certifi- 
cate of  authority  issued  by  the  supervisor.  (April  14,  1900,  94  v.  149;  April  25, 
1898,  93  v.  402.) 

§  3821w.  Sec.  6.  ANNUAL  STATEMENT  OF  BUSINESS;  EXAMINATIONS.  — 
Every  such  corporation,  partnership  and  association  doing  business  in  this  state  shall, 
annually  hereafter,  and  on  or  before  the  tenth  day  of  January,  file  with  the  super- 
visor under  oath  of  the  president  and  secretary,  or  other  managing  officer  in  the  form 
by  said  supervisor  required,  a  statement  of  its  business  for  the  twelve  months  next 
preceding  the  thirty-first  day  of  December.  Such  abstract  thereof  as  the  supervisor 
may  require  shall  be  posted  for  sixty  days  in  the  principal  office  of  such  company, 
partnership  or  association,  and  also  published  in  some  newspaper  having  a  general 
circulation  in  the  county  in  which  the  principal  office  or  place  of  business  of  such  com- 


520  Private  Corporations  in  Ohio. 


Bond  and  Investment  Companies,   §§  3821x-3821z. 


pany,  partnership  or  association  is  situate.  And  the  said  supervisor  shall  verify  said 
report  by  an  examination  of  the  affairs  of  said  company,  partnership  or  association, 
and  he  may  make  quarterly  examinations  of  the  affairs  of  said  company,  partnership 
or  association,  if  he  deem  the  same  necessary.  The  expenses  of  all  examinations 
provided  for  herein  shall  be  paid  by  the  state  of  Ohio,  provided  that  when,  by  the 
law  of  any  other  state,  district,  territory  or  nation,  examinations  of  such  corporations, 
partnerships  or  associations  of  this  state  are  required  or  permitted  to  be  made  by 
any  officer  or  other  authority  of  such  state,  district,  territory  or  nation,  at  the  expense 
of  such  corporation,  partnership  or  association,  then  the  expense  of  all  such  examina- 
tions made  by  said  supervisor  of  this  state,  of  such  corporations,  partnerships  or 
associations  of  such  state,  district,  territory  or  nation  shall  be  respectively  charged 
to  and  collected  from  such  corporations,  partnerships  or  associations  so  examined. 
WHEN  PROCEEDINGS  TO  BE  INSTITUTED  AGAINST  COMPAN Y.  —  If ,  upon 
such  examination,  it  shall  appear  that  such  company,  partnership  or  association  is 
not  carrying  on  its  business  in  accordance  with  law,  or  that  its  affairs  are  being 
improperly  managed,  the  supervisor,  after  notice  to  such  company,  partnership  or 
association  of  at  least  ten  days,  shall  institute  proceedings  in  quo  warranto  against 
said  company,  partnership  or  association  in  the  manner  provided  by  law.  (May  12, 
1902,  95  v.  642;  April  14,  1900,  94  v.   149;    April  25,   1898,  93  v.  402.) 

§  3821x.  Sec.  7.  SUPERVISOR  OF  BOND  INVESTMENT  COMPANIES;  DUTY 
AND  COMPENSATION.  —  The  acting  and  deputy  inspector  of  building  and  loan 
associations  is  hereby  made  ex-officio  supervisor  of  bond  investment  companies.  It 
shall  be  his  duty  to  see  that  all  the  laws  of  this  state  relating  to  such  companies, 
partnerships  or  associations  are  faithfully  executed,  and  as  compensation  for  his 
services  as  such  supervisor  he  shall  receive  the  sum  of  six  hundred  dollars  per  year. 
(May  12,  1902,  95  v.  642;    April  14,   1900,  94  v.   149;    April  25,   1898,  93  v.  403. 

§  3821y.  Sec.  8.  FEES.  —  Every  such  company,  partnership  or  association  shall 
pay  to  the  supervisor  the  following  fees  to  wit:  For  filing  each  application  for 
admission  to  do  business  in  this  state,  one  hundred  dollars;  for  each  certificate  of 
authority,  and  annual  renewal  of  same,  fifty  dollars;  for  filing  each  annual  state- 
ment, twenty-five  dollars;  for  issuing  license  to  each  agent,  two  dollars;  for  each 
copy  of  paper  filed  in  his  office,  fifty  cents  per  folio;  for  affixing  seal  and  certifying 
any  paper,  one  dollar.  All  fees  provided  for  herein  shall  be  deposited,  by  said  super- 
visor, with  the  state  treasurer,  upon  the  warrant  of  the  state  auditor.  (May  12,  1902, 
95  v.   642;    April   14,   1900,  94  v.   150;    April  25,   1898,  93  v.  403.) 

§  3821z.  Sec.  9.  PENALTY  FOR  DOING  BUSINESS  WITHOUT  COMPLYING 
WITH  THIS  ACT.  —  Any  officer,  agent  or  representative  of  any  such  company,  part- 
nership or  association  who  shall  attempt  to  place  or  sell  any  certificates,  debentures 
or  other  investment  securities  or  transact  any  business  whatsoever  in  the  name  of 
or  on  behalf  of  such  company,  partnership  or  association  when  such  company,  part- 
nership or  association  has  failed  or  refused  to  comply  with  the  provisions  of  this  act, 
or  shall  fail  to  file  with  the  supervisor  of  bond  investment  companies  the  statement 
or  report  herein  provided  to  be  filed,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
on  conviction  thereof,  shall  be  fined  not  less  than  one  hundred  dollars  nor  more  than 
one  thousand  dollars  for  each  offense,  or  be  imprisoned  in  the  county  jail  for  not  less 
than  thirty  days  nor  more  than  six  months,  or  both.  (April  14,  1900,  94  v.  150; 
April  25,   1898,   93  v.   403.) 


PART    XXI. 

BANKS  AND  BANKING. 

§  3821-1.     What  is  an  unauthorized  bunk. 

§  3821-2.     Stockholders  personally   liable. 

§  3821-3.     Suits  against  stockholders. 

§  3821-4.     Pleadings  and  trial  in  such  suit. 

§  3821-5.     Same. 

§  3821-6.     Banking,  etc.,  by  corporations,  prohibited. 

§  3821-7.     Penalty   against  stockholders. 

§  3821-8.     Making  and  circulating  unauthorized  paper  prohibited. 

§  3821-9.     Penalty  therefor. 

§3821-10.  Unauthorized    offices  or   agencies   prohibited;    penalties   therefor. 

§  3821-11.  Passing  unauthorized  notes,  etc.,  penalty  therefor. 

§  3821-12.  Penalties,  how  recovered  and  disposed  of. 

§  3821-13.  Altered  bills  shall  be  redeemed. 

§3821-14.  Suits  commenced  under  certain  laws;   how  proceeded   with;   acts  repealed,  except, 

etc. ;  banks  to  be  examined  once  a  year. 
§  3821-15.  Small  notes. 

§3821-10.  When  to  take  effect;   discrimination. 
§3821-17.  Foreign  paper  money  not  to  be  brought  to  Ohio  by  brokers,  etc.,  for  circulation; 

penalty. 
§  3821-18.  Same. 

§3821-19.  Penalties;  how  recovered,  etc. 
§  3821-20.  Who  deemed  brokers. 

§  3821-21.  Outstanding  notes  of  expired  corporations,  etc. 
§  3S21-22.  Duty  of  prosecuting  attorney. 
§3821-23.    (§  3831-17)   Modified,  suspended,  etc. 

§  3821-24.  Putting  in  circulation  notes  of  issue  not  receivable  at  par. 
§  3821-25.  Penalty;   where  prosecuted;   proceeds. 
§  3821-27.  Cancellation  of  counterfeit  bills. 
§3821-28.  Bankers  must  stamp  counterfeit   notes. 
§  3821-29.  Penalty  for  stamping  genuine  notes. 
§  3821-30.  Penalty  for  refusal  to  stamp  counterfeit  note. 
§  3821-31.  Penalties,  how  recovered. 
§  3821-32.  Banking  companies  may  hold  real  estate. 
§  3821-33.  XTsury  may  be  set  up  before  or  after  judgment  heretofore  rendered  and  permitting 

usury  to  be  set  up  in  defense. 
§  3821-34.  Setting  aside  judgments  heretofore  rendered  and  permitting  usury  to  be  set  up  on 
defense. 

Suits  By  and  Against  Banks. 
§  3821-35.  Suits  by  foreign  banks. 
§  3821-36.  Remedy  against  foreign  banks. 
§  3821-37.  Declaration  in  suits  against  banks. 
§  38"1-3S    Officers  of  bank  competent  witnesses  against  bank. 
§  3821-39.  Suits  begun  under  certain  laws  subject  hereto,  and  repealed,  etc. 
r  3891-40    Suits  on  bank  notes;    described  in   pleadings. 

§  3821-41.  And  in  copy  and  bill  of  particulars:  but  must  be  exhibited  on  demand. 

1 521] 


522  Private  Corporations  in  Ohio. 


Banks  and  Banking,  §§  3821-42-3821-86. 


Assets  of  Expired  or  Insolvent  Banks. 
§  3821-42.  Proceedings  to  obtain  an  account  of  assets. 
§  3821-43.  Interest  on  assets,  etc. 
§  3821-44.  Appointment  of  receiver. 
J  3821-45.  Distribution  of  assets. 

£3821-46.  When  supreme  court  may  appoint  examiner;  duties;  powers. 
§  3821-47.  Same. 
|  3821-48.  His  oath. 
§  3821-40.  His  powers. 
§3821-50.  Circulation  of  bills  of  expired  banks  prohibited;   penalty  therefor;  reissue  of  such 

paper. 
§  3821-51.  Penalty  for  reissuing. 
§  3821-52.  How  prosecuted. 
§  3821-53.  Repealing  clause. 
§  3S21-54.  Penalty  for  not  redeeming. 

Stocks,  etc.,  Deposited  by  Banks. 

§3821-55.  Certificate  of  funded  debt;  deposit  with  state  treasurer,  transfer,  etc. 

§  3821-56.  Accounts  to  be  kept  by  treasurer  and  comptroller,  and  by  register  of  bank  depart- 
ment; accounts  open  to  inspection. 

§3821-57.  Engraving  plates  and  printing  notes;  duties  of  comptroller  and  treasurer 

§  3821-58.  Registered  notes;  delivery  thereof  to  banks,  etc. 

§  3821-59.  Burning  returned  circulating  notes. 

§  3821-60.  The  register;  his  accounts  of  stock  and  circulating  notes  delivered  to  the  banks  and 
returned  to  be  burnt. 

§  3821-61.  The  sale  of  stock  to  redeem  notes  failing  bank;  report  of  sale  and  proceeds;  account 
thereof;  payment  for  redemption  of  notes;   how  made;   burning  redeemed  notes. 

§  3821-62.  Proceedings  on  quo  warranto  against  banks. 

§  3821-63.  Fraudulent  use  or  disposition  of  securities  punished  as  embezzlement;  prosecutions, 
etc. 

Free  Banking. 
§  3821-64.  Who  may  engage  in  banking. 

§  3821-65.  Certificate  to  be  made;  copy  to  be  deposited  with  secretary  of  state. 
§  3821-66.  Capital  stock. 

§  3821-67.  Sixty  per  cent,  of  stock  to  be  paid  in. 

§  3821-68.  Governor,  auditor,  secretary  of  state  to  furnish  company  a  certificate. 
§  3S21-69.  Powers  of  the  company. 
§  3821-70.  Stock  to  be  personal  property,  etc. 
§  3821-71.  Xo  lien  to  be  taken  on  capital  stock. 
§  3821-72.  Who  may  vote  at  elections. 
§  3821-73.  Officers,  and  who  eligible. 
§  3821-74.  Term  of  office  of  directors. 

§  3821-75.  Banking  companies  shall  not  circulate  evidences  of  debt  as  money. 
§3821-76.  When  prohibited  from  making  loans;  when  bond  equivalent  to  lawful  money. 
§  3821-77.  Not  liable  for  more  than  amount  of  capital  stock:  exceptions. 
§3821-78.  Capita]  stock  not  to  be  withdrawn. 

§3821-79.  How  declare  dividends;  shall  report  semi-annually  to  auditor  of  state. 
§3821-80.   Liabilities  specified;  proviso. 
§  3821-81.  Uncurrent  notes  not  to  be  paid  out. 
S  3821-82.  Notes,  etc.,  to  whom  payable. 
§  3821-83.  When  transactions  are  void. 

§  3821-84.  Penalty  for  violation  of  the  provisions  of  this  act. 

§3821-85.  Relating  to  embezzlement,  etc.,  by  bank  officers,  employees,  and  agents;  penalty. 
§  3821-86.  No  dividends  to  be  made  when  capital  stock  is  diminished. 


Banks  and  Banking. 


523 


Unauthorized  Banking,  etc.,  SS  3821-1-3821-2. 


5  3821-87.  Stockholders  .shall  not  be  liable  to  bank  beyond  two-fifths  of  capital  stock. 
§ 3821-S8.  Banking  companies  authorized  to  demand  relinquishment  of  securities;  redemption 
of  circulation  not  excused  before  L880. 

Unknown  Depositors. 

§  3S21-S9.  Annual  report  to  probate  judge  of  unknown  hanking  depositors,  etc. 

§  3821-90.  Who  are  to  be  deemed  "  unknown  depositors." 

§3821-91.  Record  of  unclaimed  deposit  to  be  kept  by  probate  judge. 

§3821-1)2.  His  fees  for  making  such  record;  how  paid. 

§3821-03.  Unknown  deposits  to  be  paid  into  county  treasury;    when:   such  payment  releases 

the  hank's  liability. 
§  3821-94.  How  and  by  whom  such  deposits  may  be  reclaimed. 
§  3821-95.  Penalty  for  bank's  refusal  or  neglect  to  comply  with  this  act. 
§  3821-96.  Recovery  and  disposition  of  penalties. 
§3821-97.  Who  may  sue;  duty  of  prosecuting  attorney. 


UNAUTHORIZED    BANKING,   ETC. 

§  3821-1.  Sec.  2.  WHAT  IS  AN  UNAUTHORIZED  BANK.  —  Every  company  or 
association  that  shall  lend  money,  and  shall  issue  by  their  officer  or  officers,  or  by  any 
other  person  or  persons,  bonds,  notes,  or  bills,  payable  to  bearer  or  payable  to  order, 
and  indorsed  in  blank,  or  use  other  shift  or  device,  whereby  the  bonds,  notes,  or  bills, 
given  by  such  company  or  association,  or  on  their  behalf,  pass  or  circulate  by  delivery, 
shall  be  taken  and  deemed  a  bank  within  this  act.     (14  v.  10;    S.  &  C.  150.) 


See  notes  to  Cowin  v.  Ins.  Co.,  14  Ohio,  7, 
under    §    3797. 

Rate  of  interest  where  no  charter  limi- 
tation. 

A  corporation  authorized  by  its  charter  to 
lend  money,  without  restriction  as  to  the  rate 
of  interest,  does  not  forfeit  its  charter  by  re- 
ceiving more  than  six  per  cent,  per  annum, 
and  where  its  charter  allows  it  to  lend  upon 
'•  such  terms  as  the  directors  may  deem  ex- 
pedient," extra  interest  beyond  six  per  cent. 
can  be  collected  by  law.  —  Corwin  v.  Ins.  Co., 
14  Ohio,  7    (1846). 

Comity  between  states. 

By  the  act  of  January  27.  1816  (Swan's 
Stat.  136).  every  company  issuing  notes  or 
bills,  intended  to  pass  or  circulate  by  de- 
livery.   "  not    incorporated    by    a   law    of   this 


state,"  was  declared  to  be  an  authorized  bank. 
Held,  that  a  bank  authorized  to  issue  such 
bills  in  Michigan  did  not  by  comity  have  such 
power  in  this  state.  —  Myers  et  al.  v.  Man- 
hattan Bank,  2U  Oh.  283, '302   (1851). 

All  securities  given  to  an  unauthorized 
bank   are  void. 

Myers  et  al.  v.  Manhattan  Bank,  2U  Oh. 
283,  302   (1851). 

Substantial     compliance     -with     charter 
sufficient. 

Mere  irregularities  in  organizing  a  corpora- 
tion will  not  deprive  the  officers  and  stock- 
holders of  the  protection  of  the  charter  or 
subject  them  to  private  liability;  but  such 
organization  must  be  substantially  in  accord- 
ance with  its  charter.  —  Bartholomew  v. 
Bentlev  et  al.,  1  Oh.  St.  37   (181 


§  3821-2.  Sec.  11.  STOCKHOLDERS  PERSONALLY  LIABLE.  —  Every  stock- 
holder, shareholder  or  partner,  hereafter  interested  in  any  such  bank,  shall  be  jointly 
and  severally  answerable,  in  their  individual  capacity,  for  the  whole  amount  of  the 
bonds,  bills,  notes,  and  contracts  of  such  bank,  hereafter  executed,  any  agreement, 
shift  or  device,  in  such  bond,  bill,  note,  or  contract,  or  otherwise,  to  the  contrary  not- 
withstanding.    (14  v.  10;    S.  &  C.  150.) 


No    liability    without    participation    in 
unauthorized  acts. 

The  original  stockholders  in  a  literary  cor- 
poration acting  within  the  scope  of  their 
granted  powers,  are  not  made  liable  for  the 
acts  of  those  who  go  beyond  them:  but  the 
act  of  incorporation  can  furnish  no  protection 
from   private  responsibility,  to  those  who  en- 


gage in  or  assent    to  such   unauthorized  acts. 
—  Kearney  v.   Buttles,   1   Oh.  St.  362    (1853). 
The  liability  imposed  is  one  in  tort,  not 

in  contract. 
Lawler  v.  Burt.  7  Oh.  St.  341   (1867). 
Right   of  action  barred  in  four  years. 

The  liability  imposed  upon  the  stockholders 
is  in  the  nature  of  a  penalty  for  issuing  notes 


524 


Private  Corporations  in  Ohio. 


Unauthorized  Banking;  Regulations,   etc.,   §§    3821-3-3821-7. 


in  the  form  and  with  a  design  to  be  circu- 
lated as  money,  and  a  right  of  action  thereon 
is  barred  in  four  years. —  Lawler  v.  Burt,  7 
Oh.  St.   341    (1867). 


This   case   overrules   Lawler   v.    Walker,    18 

Oh.  151  (1849),  in  which  it  was  held  that 
such  right  of  action  was  not  barred  for  fifteen 
years. 


§  3821-3.  Sec.  12.  SUITS  AGAINST  STOCKHOLDERS.  —  The  holder  of  any 
bond,  bill,  note,  or  contract  of  such  bank,  may  institute  suit  and  recover  judgment 
thereon,  against  any  part  or  the  whole  of  the  persons  who  were  interested  in  such 
bank  at  the  date  of  such  bond,  bill,  note,  or  contract,  or  who  became  interested  in  such 
bank  at  any  time  between  that  and  the  commencement  of  such  suit.  (14  v.  10; 
S.  &  C.   150.) 

See  notes  to  preceding  section. 

§  3821-4.  Sec.  13.  PLEADINGS  AND  TRIAL  IN  SUCH  SUIT.  —  In  such  suit, 
it  shall  be  sufficient  for  the  plaintiff  to  set  forth,  in  substance,  that  he  is  the  holder 
of  such  bond,  note,  bill,  or  contract;  that  the  defendants  were  interested  in  said  bank 
at  the  date  of  such  bond,  bill,  note,  or  contract,  or  subsequently  thereto,  and  that  it 
remains  unpaid;  it  shall  be  unnecessary  to  show  in  the  declaration  of  pleadings,  and 
unnecessary  to  prove  on  the  trial,  that  a  demand  was  made  of  the  contents  of  such 
bend,  bill,  note,  or  contract,  at  the  time  or  place  when  and  where  it  purports  to  be 
payable,  but  the  persons  aforesaid  shall  be  liable  without  such  demand.  (14  v.  10; 
S.   &  C.    150.) 


Sufficiency  of  declaration. 

A  declaration  filed  under  this  act  is  suffi- 
cient if  it  contains  the  requisites  prescribed 
by  this  section.  It  is  sufficient  to  aver  that 
the  defendant  was  a  stockholder  at  the  date 
of  the  notes,  or  subsequently,  without  show- 
ing him  to  be  such  at  the  commencement  of 


the   suit.— Kearney  v.  Buttles,   1  Oh.  St.  362 
(1853). 
Demand    and   notice    not   necessary. 

it  is  not  necessary  to  show  demand  and 
notice  in  order  to  charge  an  unauthorized 
banker  as  the  drawer  of  a  bill  of  exchange.— 
Watson  v.  Brown,  14  Oh.  474  (1846). 


§  3821-5.  Sec.  14.  SAME.  —  If,  during  the  progress,  or  on  the  trial  of  such  suit, 
it  shall  appear  that  any  one  or  more  of  the  defendants  are  not  liable  to  such  action, 
under  this  act,  it  shall  not  prevent  the  suit  from  proceeding  as  to  any  other  defend- 
ant, but  judgment  shall  be  given  for  the  full  amount  of  such  bond,  bill,  note,  or  con- 
tract, against  any  one  or  more  of  the  defendants  who  may  appear  to  be  liable.  (14 
v.  10;  S.  &  C.   150.) 


Common-law    rule    as    to    joint    defend- 
ants  changed. 

If  the  jury  find  a  verdict  against  a  part  of 
the  defendants  and  in  favor  of  others,  judg- 


ment may  be  rendered  against  those  who  are 
found  liable  by  the  jury.  The  rule  of  the 
common  law  is  changed  by  this  section. — 
Porter  v.  Kepler,    14  Oh.   128    (1846). 


§  3821-6.  Sec.  1.  BANKING,  ETC.,  BY  CORPORATIONS,  PROHIBITED.  —  No 
body  politic  or  corporate  shall  establish  a  bank,  or  engage  in  the  business  of  banking, 
to  receive  on  deposit,  keep  and  circulate  the  money  or  bank  paper  of  others,  without 
express  authority  of  a  law  of  this  state.     (March  12,  1845,  43  v.  121;   S.  &  C.  152.) 

the  business   of   banking  by   receiving  on    de- 


Receiving  deposits  not  banking. 

It  is  no  violation  of  a  charter,  which  con- 
tains a  clause  prohibiting  the  exercise  of 
banking  powers,  to  receive  monev  on  deposit. 
—  State  v.  Ins.  Co.,   14  Oh.  7    (1S46). 

Religious    corporations    cannot    engage 
in  banking. 

Where   a   religious    corporation    engages   in 


posit  and  keeping  and  circulating  the  money 
of  others,  such  business  is  contrary  to  this 
section,  and  a  note  discounted  by  such  corpo- 
ration is  illegal  and  void. —  Huber  v.  United 
Protestant  Evang.  Congregation,  16  Oh.  St. 
377,  381    (1865). 


§  3821-7.  Sec.  2.  PENALTY  AGAINST  STOCKHOLDERS,  ETC.  —  Every  per- 
son who  shall  subscribe  to  become  a  member  of,  or  become  in  any  way  interested  in, 
any   such   body    corporate   or   politic,    with    a   view   to    establishing    such    bank,    or 


Banks  and  Banking.  525 


Unauthorized  Banking;  Regulations,  etc.,   SS   3821-8  3821-14. 


engaging  in  the  business  of  banking,  or  shall  in  any  way  aid  or  assist  such  body 
corporate  or  politic  to  establish  a  bank,  or  carry  on  the  business  of  banking,  contrary 
to  the  provisions  of  the  first  section  (S  3821-6)  of  this  act,  shall  forfeit  and  pay  the 
sum  of  one  thousand  dollars  for  every  offense.  (March  12,  1845,  43  v.  121;  S.  & 
C.    152.) 

§  3821-8.  Sec.  3.  MAKING  AND  CIRCULATING  UNAUTHORIZED  PAPER 
PROHIBITED.  —  No  person,  association  of  persons,  body  politic,  or  corporate,  shall 
make  and  put  in  circulation,  or  make  and  attempt  to  put  in  circulation,  as  money  or 
currency,  any  note,  bill,  or  other  evidence  of  debt,  without  express  authority  of  a 
law  of  this  state.      (March  12,   1845,  43  v.   121;    S.  &  C.   152.) 

§  3821-9.  Sec.  4.  PENALTY  THEREFOR.  —  Every  person  who  shall  violate 
the  provisions  of  the  third  section  (S  3821-8)  of  this  act,  or  in  any  way  aid  or  assist 
any  association  of  persons,  body  politic  or  corporate,  to  make  or  put  in  circulation  any 
note,  bill,  or  other  evidence  of  debt,  contrary  to  the  provisions  of  the  third  section 
(§  3821-8)  of  this  act,  shall  forfeit  and  pay  one  thousand  dollars  for  every  such 
offer_.se;  and  any  corporation,  not  a  municipal  corporation,  which  shall  offend  against 
the  third  section  (S  3821-8)  of  this  act,  shall  forfeit  its  charter.  (March  12,  1845, 
43  v.  121;   S.  &  C.  152.) 

§  3821-10.  Sec.  5.  UNAUTHORIZED  OFFICES  OR  AGENCIES  PROHIBITED; 
PENALTIES  THEREFOR.  —  No  person  shall  open  or  keep  an  office  or  agency  for  the 
purpose  of  redeeming  the  notes,  bills,  or  other  evidence  of  debt,  which  have  been 
issued  for  circulation  as  money  or  currency,  without  express  authority  of  a  law  of  this 
state,  under  the  penalty  of  five  hundred  dollars  for  every  such  offense,  and  every  day 
such  officD  or  agency  is  kept  for  such  purpose,  shall  be  considered  a  distinct  and 
separate  offense.      (March  12,  1845,  43  v.   121;    S.  &  C.  152.) 

§  3821-11.  Sec.  6.  PASSING  UNAUTHORIZED  NOTES,  ETC.;  PENALTY 
THEREFOR.  —  No  person  shall  put  in  circulation,  pass  or  attempt  to  circulate  or 
pass,  as  money  or  currency,  any  note,  bill,  or  other  evidence  of  debt,  made  or  issued 
without  authority  of  law,  knowing  the  same  to  have  been  made  or  issued  without 
authority  of  law;  and  no  person  shall  make,  or  put  in  circulation,  pass  or  attempt  to 
circulate  or  pass,  as  money  or  currency,  any  note,  bill,  or  other  evidence  of  debt, 
which  is  not  made  payable  in  the  lawful  money  of  the  United  States,  or  which  is  for 
a  less  sum  than  one  dollar,  under  a  penalty  of  fifty  dollars  for  every  such  offense. 
(March  12,-1845,  43  v.   121;    S.  &  C.   152.) 

§  3821-12.  Sec.  7.  PENALTIES,  HOW  RECOVERED  AND  DISPOSED  OF. — 
All  penalties  imposed  by  this  act  shall  be  recovered  by  action  of  debt,  in  the  name  of 
the  state  of  Ohio,  before  any  court  of  competent  jurisdiction,  or  by  indictment;  and 
all  penalties  incurred  under  this  act,  when  collected,  shall  be  paid  to  the  treasurer  of 
the  county  in  which  the  judgment  is  recovered  for  the  same,  for  the  use  of  the  state 
of  Ohio.      (March   12,   1845,  43  v.   121;    S.  &  C.   152.) 

§  3821-13.  Sec.  8.  ALTERED  BILLS  SHALL  BE  REDEEMED.  —  Every  bank 
in  this  state  shall  be  liable  to  pay  to  any  bona  fide  holder  the  original  amount  of  any 
bill  of  such  bank,  which  shall  have  been  altered  to  a  larger  amount  in  the  course  of 
its  circulation,  notwithstanding  such  alteration.  (March  12,  1845,  43  v.  121;  S. 
&  C.   152.) 

§  3821-14.  Sec.  9.  SUITS  COMMENCED  UNDER  CERTAIN  LAWS;  HOW 
PROCEEDED  WITH;  ACTS  REPEALED,  EXCEPT,  ETC.,  BANKS  TO  BE  EXAM- 
INED ONCE  A  YEAR,  ETC. — All  suits  heretofore  commenced,  and  now  pending, 
under  the  provisions  of  the  act  entitled  "  an  act  tc  prohibit  the  issuing  and  circulat- 


526  Private  Corporations  in  Ohio. 

Unauthorized   Banking;   Regulations,   etc.,    §§   3821-15-3821-17. 

ing  of  unauthorized  bank  paper,"  passed  January  twenty-seven,  A.  D.  one  thousand 
eight  hundred  and  sixteen,  and  the  several  acts  amendatory  thereto,  and  the  act 
entitled  "  an  act  to  prohibit  the  establishment,  within  this  state,  of  any  branch, 
office  or  agency,  of  the  Bank  of  the  United  States  of  Pennsylvania,  or  any  other  cor- 
poration, incorporated  by  the  laws  of  any  other  state,  or  by  the  laws  of  the  United 
States,  and  for  other  purposes,"  passed  January  nine,  A.  D.  one  thousand  eight  hun- 
dred and  thirty-nine,  and  the  act  entitled  "  an  act  providing  for  the  appointment  of 
a  board  of  bank  commissioners,  and  for  the  regulation  of  banks  within  the  State  of 
Ohio,"  passed  February  twenty-five,  one  thousand  eight  hundred  and  thirty-nine,  and 
the  several  acts  amendatory  and  supplementary  thereto,  and  the  act  entitled  "  an  act 
to  punish  crimes  therein  named,  and  the  prevention  of  a  fraudulent  currency,"  passed 
March  seven,  A.  D.  one  thousand  eight  hundred  and  forty-two,  whether  judgment  has 
been  obtained  or  not,  or  decrees  rendered,  shall,  in  all  respects,  be  proceeded  with  in 
the  same  manner  as  though  such  suits  had  been  originally  commenced  under  the  pro- 
visions of  this  act;  and  the  acts  above  recited  and  referred  to  in  this  section,  except 
the  eleventh,  twelfth,  thirteenth,  and  fourteenth  sections  of  the  act  entitled  "  an  act 
to  prohibit  the  issuing  and  circulation  of  unauthorized  bank  paper,"  aforesaid,  are 
hereby  repealed:  provided,  that  each  banking  company  in  this  state,  existing  at  the 
time  of  the  passage  of  the  act  entitled  "  an  act  to  incorporate  the  state  bank  of  Ohio, 
and  other  banking  companies,"  passed  February  twenty-four,  one  thousand  eight 
hundred  and  forty-five,  shall  be  examined  as  often  as  once  in  each  year  by  a  person 
to  be  appointed  by  the  auditor,  treasurer,  and  secretary  of  state,  or  any  two  of  them, 
in  the  same  manner  as  is  provided  for  by  the  forty-fourth  section  of  the  last 
recited  act;  and  when  such  person  is  appointed,  he  shall  perform  the  same  duties,  and 
receive  the  same  compensation  as  is  provided  by  said  act;  and  each  of  said  companies 
shall  make  out  a  statement  in  the  same  manner,  and  forward  the  same  to  the  auditor, 
at  the  times  required  by  the  fifty-ninth  section  of  the  last  named  act;  and  the  laws 
hereby  repealed  shall  remain  in  force,  as  to  all  banks  now  in  process  of  liquidation 
under  them,  until  the  concerns  of  such  banks  shall  be  finally  closed  up:  provided, 
further,  that  this  act  shall  not  affect  any  special  act  for  the  relief  of  any  institution 
or  company  which  has  exercised  or  assumed  any  banking  powers,  or  for  the  relief  or 
for  (of)  the  creditors  thereof.     (March  12,   1845,  43  v.   121;    S.  &  C.   152.) 

§  3821-15.  Sec.  10.  SMALL  NOTES.—  Nothing  in  this  act  shall  be  so  construed 
as  to  restore  to  any  existing  bank  a  right  to  issue  and  circulate  the  notes  of  such  bank, 
of  a  less  denomination  than  five  dollars.      (March  12,  1845,  43  v.  121;    S.  &  C.  152.) 

§  3821-16.  Sec.  11.  WHEN  TO  TAKE  EFFECT;  DISCRIMINATION.  —  This 
act  shall  take  effect  from  and  after  the  first  day  of  June  next:  provided,  that  the  first 
section  (§  3821-6)  of  this  act  shall  not  take  effect  before  the  first  day  of  March,  1846, 
upon  any  existing  corporation  now  engaged  in  the  business  prohibited  by  that  section, 
and  which  has  duly  reported,  and  shall  continue  to  report,  its  dividends  and  profits 
to  the  auditor  of  state  for  taxation.      (March  12,   1845,  43  v.   121;    S.  &  C.   152.) 

§  3821-17.  Sec.  1.  FOREIGN  PAPER  MONEY  NOT  TO  BE  BROUGHT  TO 
OHIO  BY  BROKERS,  ETC.,  FOR  CIRCULATION;  PENALTY.  —  No  exchange 
broker,  money  broker  or  incorporated  company  shall  bring  or  cause  to  be  brought 
into  this  state  any  notes  issued  by  any  bank  or  banking  company  out  of  this  state, 
for  the  purpose  of  paying  them  out  on  loans,  discounts,  in  exchange  for  other  money, 
or  of  otherwise  giving  circulation  to  such  notes  within  this  state;  nor  shall  any  such 
broker  or  incorporated  company  receive,  for  any  such  purpose,  such  notes,  knowing 
the  same  to  have  been  so  brought  into  this  state;  and  every  exchange  broker,  money 
broker,  or  incorporated  company  that  shall  offend  against  the  provisions  of  this 
section,  shall  forfeit  and  pay,  for  every  such  offense,  a  sum  equal  to  one-fourth  part 
of  the  amount  of  the  notes  which  such  broker  or  company  shall  have  so  brought,  or 


Banks  and  Banking.  527 


Unauthorized  Banking;  Regulations,   etc.,   S§   3821-18-3821-22. 

caused  to  be  brought  into  the  state,  or  so  received  for  the  purpose  hereinbefore  speci- 
fied: provided,  however,  that  the  prohibitions  contained  in  this  section  shall  not  be 
so  construed  as  to  prevent  any  broker  or  incorporated  company  from  receiving  at  par 
in  payment  of  debts  or  on  deposit,  and  again  paying  out  notes  issued  by  banks  or 
banking  companies  out  of  this  state,  which,  at  the  time  of  such  paying  out,  are 
redeeming  their  notes,  on  demand,  in  gold  and  silver  coin,  and  which  notes  have  been 
brought  into  the  state  in  the  ordinary  course  of  trade  or  business,  otherwise  than  for 
the  purpose  of  being  paid  out  on  loans,  discounts,  or  in  exchange  for  other  money, 
with  a  view  to  giving  circulation  to  such  notes  within  this  state.  (January  22,  1846, 
44  v.   13;    S.  &  C.   154.) 

See  Roznor  v.  Hatch,  7  Oh.  St.  249   (1857). 

5  3821-18.  Sec.  2.  SAME. — No  broker  or  incorporated  company  in  this  state 
shall  either  directly  or  indirectly  pay  out  or  otherwise  circulate,  or  cause  to  be  circu- 
lated, any  note  or  notes  issued  by  any  bank  or  banking  company  cut  of  this  state,  of 
any  denomination  less  than  five  dollars,  nor  any  note  issued  by  any  brink  or  banking 
company  out  of  this  state,  which  the  broker  or  company  so  paying  out,  or  giving  cir- 
culation to,  is  not  at  the  same  time  receiving  on  deposit,  or  in  the  payment  of  debts, 
as  of  equal  value  with  gold  and  silver  coin,  under  the  penalty  of  one  hundred  dollars 
for  every  such  offense:  Provided,  that  nothing  in  this  section  contained  shall  be  so 
construed  as  to  prevent  any  broker  or  incorporated  company  from  selling  any  depre- 
ciated bank  notes  in  its  possession,  and  which  such  broker  or  company  shall  have 
received  at  par,  to  any  person  or  persons,  for  the  purpose  of  obtaining  payment  thereof 
from  the  bank  or  banking  company  which  issued  the  same,  or  from  any  person  or 
company  that  may  be  liable  for  such  payment.  (January  22,  1846,  44  v.  13;  S. 
&  C.   154.) 

§3821-19.  Sec.  3.  PENALTIES;  HOW  RECOVERED,  ETC.  —  All  penalties 
imposed  by  this  act  shall  be  recovered  and  paid  over  for  the  use  of  the  state  in  the 
manner  prescribed  by  the  act  to  prohibit  unauthorized  banking  and  the  circulation 
of  unauthorized  bank  paper,  passed  March  twelve,  one  thousand  eight  hundred  and 
forty-five.     (44  v.   13;    S.  &  C.   154.) 

§  3821-20.  Sec.  4.  WHO  DEEMED  BROKERS.  —  All  persons  dealing  in  exchange, 
or  who  keep  an  office  for  the  lending  of  money,  shall  be  deemed  and  taken  as  brokers 
within  the  meaning  of  this  act.      (January  22,   1846,  44  v.   13;  S.  &  C.   154.) 
i 

§  3821-21.  Sec.  5.  OUTSTANDING  NOTES  OF  EXPIRED  CORPORATIONS, 
ETC.  —  It  shall  not  be  lawful  for  any  person  appointed  by  the  court  to  redeem  the 
outstanding  notes  of  any  bank,  whose  assets  have  been  or  shall  be  placed  in  the 
hands  of  receivers,  pursuant  to  the  provisions  of  any  law  of  this  state,  or  who  shall 
have  in  any  way  undertaken  or  become  bound  to  redeem  such  outstanding  notes,  or 
the  outstanding  notes  of  any  bank  whose  charter  shall  have  expired,  or  whose  right 
to  issue  notes  for  circulation  shall  have  ceased,  either  by  himself  or  by  his  agent,  or 
any  person  or  persons,  company  or  companies,  to  pay  out,  loan,  give  in  exchange  for 
other  money,  or  in  any  way  whatever  put  in  circulation  any  such  notes,  or  to  take  any 
measures  or  procure  to  be  taken  any  measures  to  prevent  such  notes  from  being  pre- 
sented for  redemption;  and  any  person  who  shall  violate  any  of  the  provisions  of  this 
section  shall  forfeit  and  pay  to  the  state  of  Ohio,  for  every  such  offense,  not  less  than 
fifty  nor  more  than  two  hundred  dollars,  at  the  discretion  of  the  court,  with  costs  of 
suit,  to  be  recovered  in  an  action  of  debt  to  be  prosecuted  and  collected  by  the  prose- 
cuting attorney  of  the  proper  county,  and  by  him  paid  into  the  treasury  of  the  proper 
county,  for  the  use  of  the  state.     (January  22,  1846,  44  v.  13;    S.  &  C.  154.) 

§  3821-22.  Sec.  7.  DUTY  OF  PROSECUTING  ATTORNEY.  —  It  is  hereby  made 
the  especial  duty  of  the  prosecuting  attorney  of  each  county  in  this  state  to  inquire 


528  Private  Corporations  in  Ohio. 

Unauthorized  Banking;  Regulations,   etc.,    §§   3821-23-3821-28. 

into  all  cases  where  he  may  have  reason  to  believe  that  offenses  shall  have  been 
committed  against  the  provisions  of  this  act;  and  if,  upon  such  inquiries,  he  shall 
have  good  cause  for  believing  that  any  such  offense  shall  have  been  committed,  imme- 
diately to  prosecute  the  offenders  thereof.     (January  22,  1846,  44  v.  13;    S.  &  C.  154.) 

§  3821-23.  Sec.  1.  (§  3821-17)  MODIFIED,  SUSPENDED,  ETC.— So  much  of 
the  act  entitled  an  act  supplementary  to  the  act  to  prevent  unauthorized  banking, 
and  the  circulation  of  unauthorized  bank  paper,  passed  January  twenty-second,  one 
thousand  eight  hundred  and  forty-six,  as  prohibits  the  state  treasurer  of  this  state 
from  putting  in  circulation  or  passing  out  any  note  or  notes  of  any  bank  described  in 
the  fifth  section  of  this  act,  to  which  this  is  an  amendment,  be  and  the  same  is  hereby 
suspended  until  the  fifteenth  day  of  August  next;  and  that  from  and  after  said  fif- 
teenth day  of  August  it  shall  be  unlawful  for  the  treasurer  of  state,  the  county  treas- 
urer of  any  county,  or  any  collector  of  tolls  on  any  of  the  public  works  of  this  state 
either  to  receive,  pay  out,  or  otherwise  give  circulation  to  any  note  or  notes  of  any 
of  the  banks  described  in  the  fifth  section  of  the  act  aforesaid.  (January  22,  1846, 
44  v.   116;    S.  &  C.   156.) 

§  3821-24.  PUTTING  IN  CIRCULATION  NOTES  OF  ISSUE  NOT  RECEIV- 
ABLE AT  PAR.  —  It  shall  be  unlawful  for  any  bank,  banker,  broker,  exchange 
broker,  or  other  money  dealer  or  incorporated  company  in  any  manner,  to  put  in  cir- 
culation, either  directly  or  indirectly,  the  notes  of  issue  of  any  bank  or  banking  com- 
pany, whether  in  or  out  of  this  state;  which  notes  shall  not,  at  the  time  they  are  so 
put  in  circulation,  be  receivable  at  par  by  the  bank,  banker,  broker,  exchange  broker, 
or  other  money  dealer  or  incorporated  company  so  putting  the  same  in  circulation, 
and  redeemable  at  par,  in  gold  or  silver  coin,  by  the  bank  or  banker  or  banking  com- 
pany issuing  the  same.      (May  3,  1861,  58  v.   114.) 

§  3821-25.  Sec.  2.  PENALTY;  WHERE  PROSECUTED;  PROCEEDS.  —  Any 
bank,  banker,  broker,  exchange  broker,  or  other  money  dealer  or  incorporated  com- 
pany, that  shall  violate  the  provisions  of  the  first  section  (§  3821-24)  of  this  act,  shall 
forfeit  and  pay  for  each  offense,  a  sum  of  money  equal  to  one-fifth  of  the  nominal 
value  of  the  notes  so  put  in  circulation  contrary  to  the  provisions  of  this  act,  together 
with  the  costs  of  prosecution,  to  be  recovered  in  an  action  in  the  name  of  the  state  of 
Ohio,  before  any  justice  of  the  peace,  or  court  of  common  pleas  having  jurisdiction; 
and  all  forfeitures  recovered  and  collected  under  this  act  shall  be  paid  into  the  treas- 
ury of  the  county  in  which  the  action  is  brought,  for  the  use  of  the  county.  (May  3, 
1861,  58  v.   114.) 

§  3821-27.  CANCELLATION  OF  COUNTERFEIT  BILLS.  —  It  shall  be  lawful 
for  any  cashier,  president,  or  other  officer  of  any  bank,  authorized  by  the  laws  of  this 
state,  to  issue  notes  for  circulation,  whenever  any  counterfeit  note  or  notes,  purport- 
ing to  have  been  issued  by  such  bank,  shall  be  presented  to  such  person  at  the  bank- 
ing house  of  such  bank  for  inspection,  payment  or  redemption,  to  write  in  a  bold  hand 
across  the  face  of  such  note  or  notes,  the  word  "  counterfeit,"  and  sign  his  name  under 
the  same.     (April  14,   1857,  54  v.  93;    S.   &  C.   157.) 

§  3821-28.  Sec.  1.  BANKERS  MUST  STAMP  COUNTERFEIT  NOTES.  —  When- 
ever any  officer  or  clerk  of  any  incorporated  bank,  or  any  banker,  exchange  broker, 
or  a  regular  dealer  in  money,  or  any  clerk  employed  by  either  of  them,  shall  have 
offered  to  him,  for  sale,  exchange,  deposit,  or  in  payment  of  debt,  at  his  office  or  place 
of  business,  any  bank  note  or  notes,  knowing  the  same  to  be  counterfeit,  worthless, 
broken  or  altered,  he  shall  forthwith  write  or  stamp  upon  said  note  or  notes  upon  the 
face  thereof  with  ink,  the  name  of  the  bank,  banker,  exchange  broker,  or  regular 
dealer  in  money,  and  the  date  of  said  writing  or  stamping,  and  the  word  counterfeit, 


Banks  and  Banking.  529 


Unauthorized   Banking;   Regulations,   etc.,   §S   3821-29  3821-34. 

worthless,  broken,  or  altered,  as  the  case  may  be,  and  return  such  note  or  notes  to  the 
person  claiming  to  be  the  owner  of  the  same.     (April  5,   186G,  63  v.   136,  §  1.) 

§  3821-29.  Sec.  2.  PENALTY  FOR  STAMPING  GENUINE  NOTES.  —  If  any 
oiScer  or  clerk  of  a  bank,  or  any  banker,  exchange  broker,  dealer  in  money,  or  any 
clerk  employed  by  either  of  them  shall  write  upon  or  stamp  any  genuine  bank  note 
or  notes,  as  prescribed  for  in  section  one,  (S  3821-28)  such  bank,  banker,  exchange 
broker,  or  dealer  in  money,  shall  be  liable  to  the  person  holding  the  same,  and  upon 
satisfactory  evidence  being  produced  of  the  genuineness  of  said  note  or  notes,  said 
bank,  banker,  exchange  broker,  or  dealer  in  money,  as  the  case  may  be,  shall  redeem 
the  same  without  delay,  at  the  current  value  of  such  note  or  notes,  at  the  time  the 
same  were  stamped.     (April  5,  1866,  63  v.   136.) 

§  3821-30.  Sec.  3.  PENALTY  FOR  REFUSAL  TO  STAMP  COUNTERFEIT 
NOTE.  —  If  any  bank,  banker,  exchange  broker,  or  a  regular  dealer  in  money,  shall 
knowingly  refuse,  neglect  or  fail  to  write  upon  or  stamp,  or  cause  to  be  written  upon 
or  stamped,  such  counterfeit,  worthless,  broken  or  altered  bank  note  or  notes,  which 
have  come  into  his  or  their  possession,  as  provided  in  section  one  (§  3821-28)  of  this 
act  he  shall  forfeit  and  pay  not  exceeding  one  hundred  dollars  nor  less  than  fifty 
dollars  for  every  such  offense.     (April  5,  1866,  63  v.  136.) 

§  3821-31.  Sec.  4.  PENALTIES;  HOW  RECOVERED.  —  All  penalties  imposed 
by  this  act  shall  be  recovered  by  civil  action,  in  the  name  of  the  state  of  Ohio,  before 
any  court  of  competent  jurisdiction,  or  by  indictment;  and  all  penalties  incurred 
under  this  act,  when  collected,  shall  be  paid,  one-half  to  the  informant,  and  the  other 
half  to  the  treasurer  of  the  county  in  which  the  judgment  is  recovered  for  the  same, 
for  the  use  of  the  state  of  Ohio.     (April  5,   1866,  63  v.   136.) 

§  3821-32.  Sec.  1.  BANKING  COMPANIES  MAY  HOLD  REAL  ESTATE.  —All 
banking  companies  of  this  state,  which  have  been  heretofore  incorporated,  or  which 
may  hereafter  be  incorporated,  are  hereby  authorized  to  acquire,  hold  and  convey 
such  real  estate  as  may  be  necessary  as  a  place  for  the  convenient  transaction  of  the 
business  of  said  companies.     (April  9,  1856,  53  v.  157;    S.  &  C.  157.) 

§  3821-33.  Sec.  1.  USURY  MAY  BE  SET  UP  BEFORE  OR  AFTER  JUDGMENT 
WITHOUT  TENDER  OF  AMOUNT  LEGALLY  DUE.  —  Whenever  usurious  interest 
shall  have  been  charged  or  taken  in  this  state  by  any  bank,  whether  incorporated  by 
the  laws  of  this  state  or  elsewhere,  it  shall  be  lawful  for  any  party  or  parties  to  an 
action  brought  upon  any  bond,  bill,  note,  or  other  instrument  of  writing  in  which  such 
usurious  interest  shall  have  been  charged  or  included,  at  any  time  before  or  after 
judgment  to  set  up  and  prove  the  taking  or  demand  of  such  usurious  interest,  without 
tendering  to  such  bank  the  legal  amount  of  debt  and  interest  due  on  such  obligation. 
(56  v.   171;    Curwen's  R.  S.  1524;    Curwen's  Laws,  891;    S.  &  C.   157,  158.) 

§  3821-34.  Sec.  2.  SETTING  ASIDE  JUDGMENTS  HERETOFORE  RENDERED 
AND  PERMITTING  USURY  TO  BE  SET  UP  ON  DEFENSE.  —  In  all  cases  in  which 
judgment  shall  have  been  heretofore  rendered  in  favor  of  such  bank  or  banks  upon 
default,  or  upon  warrant  of  attorney  to  confess  judgment,  it  shall  be  the  duty  of  the 
court  in  which  such  judgment  was  rendered,  at  any  time  before  such  judgment  shall 
have  been  satisfied,  upon  affidavit  of  any  defendant  against  whom  such  judgment  was 
rendered,  setting  forth  the  facts  constituting  such  usurious  demand,  to  set  aside  such 
judgment,  and  permit  such  defendant  or  defendants  to  file  his  or  their  answer  in 
said  action,  setting  up  such  usurious  demand,  without  tendering  to  such  bank  the 
legal  amount  of  debt  and  interest  due  on  the  bond,  bill,  note,  or  other  obligation  upon 
which  said  action  was  founded.  (April  5,  1859,  56  v.  171;  Curwen's  R.  S.  1524; 
Curwen's  Laws,  891;    S.  &  C.  157,  158.) 

LAW   GOV.    PRIV.    COR. —  34. 


530  Private  Corporations  in  Ohio. 


Suits  By  and  Against  Banks,   §§   3821-35-3821-39. 


SUITS  BY  AND  AGAINST  BANKS. 
Whereas,  Doubts  have  arisen  whether  the  act  passed  March  eighteenth,  one 
thousand  eight  hundred  and  thirty-nine,  entitled  "  an  act  further  to  amend  the 
act  entitled  an  act  to  prohibit  the  issuing  and  circulating  of  unauthorized  bank 
paper,"  passed  January  twenty-seventh,  one  thousand  eight  hundred  and  sixteen, 
does  not  prohibit  banking  institutions  incorporated  by  any  government  other  than 
this  state,  to  sue  in  the  courts  of  this  state  —  to  remove  such  doubts  — 

§  3821-35.  Sec.  1.  SUITS  BY  FOREIGN  BANKS.  —The  act  first  in  the  preamble 
of  this  act  mentioned,  shall  not  be  so  construed  in  any  court  of  this  state,  or  else- 
where, as  to  prohibit  any  person,  or  company  of  persons,  incorporated  by  any  govern- 
ment other  than  the  government  of  this  state,  and  doing  business  lawfully  as  a  bank, 
at  the  place  of  the  location  of  such  bank,  without  any  intention  to  infringe  the  laws  of 
this  state,  from  having  power  and  right  to  institute,  maintain,  and  prosecute,  any 
action  at  law  or  suit  in  equity  in  any  court  in  this  state,  in  his  or  their  corporate 
name,  nor  from  enjoying  and  enforcing  all  judgments  and  decrees  heretofore  rendered, 
or  which  hereafter  may  be  rendered  in  the  courts  of  this  state  in  like  manner,  and 
under  like  regulations,  as  non-residents  are,  or  may  be  permitted  to  sue  in  courts 
of  this  state,  and  enjoy  and  enforce  the  judgments  and  decrees  thereof.  (March  12, 
1845,  43  v.  88;    S.  &  C.   158.) 

Applies  to  foreign  banks.  I  a  foreign  bank  as  well  as  banks  incorporated 

A   joint    action    against    a    drawee   and    in-  |  in   this   state. —  Lewis   v.   Bank   of   Kentucky, 
dorse'r  may  be  brought  under  the  statute  by  |  12   Oh.   132    (1843). 

§  3821-36.  Sec.  2.  REMEDY  AGAINST  FOREIGN  BANKS.  —  The  rights, 
credits,  moneys,  and  effects  of  such  incorporations  which  may  be  in  this  state,  shall 
be  subject  to  attachment  and  equity  proceedings,  as  the  rights,  credits,  moneys,  and 
effects  of  non-residents  are  or  may  be  so  subject.  (March  12,  1845,  43  v.  88;  S.  & 
C.    158.) 

§3821-37.  Sec.  1.  DECLARATION  IN  SUITS  AGAINST  BANKS.  —  In  all 
actions  against  any  bank  or  banker  for  the  non-payment  of  any  note,  bill,  check, 
draft,  certificate  of  deposit,  or  other  written  evidence  of  debt,  the  plaintiff  may  declare 
for  money  had  and  received,  and  file  with  his  declaration  a  pertinent  description  of 
the  written  evidence  of  the  debt  for  which  suit  was  brought,  and,  on  the  trial,  give 
the  same  in  evidence,  and  recover  judgment  for  the  amount  due  thereon,  with  lawful 
interest  from  the  time  the  same  became  due  and  payable.  (March  12,  1845,  43  v.  67; 
S.  &  C.   159.) 

§  3821-38.  Sec.  3.  OFFICERS  OF  BANK  COMPETENT  WITNESSES  AGAINST 
BANK.  —  In  all  cases  where  proceedings  have  been  commenced  against  any  bank  or 
banker,  either  at  law  or  in  chancery,  to  subject  the  rights,  credits,  moneys,  and  effects 
of  such  bank  or  banker  to  the  payment  of  his  debts,  the  president,  directors,  cashier, 
clerks,  tellers,  and  other  officers  and  agents  of  such  bank  or  banker  shall  be  compe- 
tent witnesses  for  the  party  bringing  the  suit,  notwithstanding  any  interest  they  may 
have  in  the  event  of  the  suit,  and  may  be  required,  at  any  time  after  the  commence- 
ment of  such  proceedings,  to  testify  by  deposition,  as  in  cases  of  non-resident  or  going 
witnesses:  provided,  that  nothing  in  this  act  contained  shall  be  construed  to  require 
any  witness  to  give  evidence  tending  to  criminate  himself.  (March  12,  1845,  43  v. 
67;    S.  &  C.   159.) 

§  3821-39.  Sec.  5.  SUITS  BEGUN  UNDER  CERTAIN  LAWS  SUBJECT 
HERETO  AND  REPEALED,  ETC.  —  All  suits  heretofore  commenced  under  the  pro- 
visions of  the  act  entitled  "  an  act  to  regulate  judicial  proceedings  where  banks  and 
bankers  are  parties,  and  to  prohibit  the  issuing  of  bank  bills  of  certain  descriptions," 


Banks  and  Banking.  531 


Suits   By  and  Against  Banks,    §§   3821-40-3821-41. 


passed  January  twenty-eight,  one  thousand  eight  hundred  and  twenty-four,  and  the 
act  entitled  "  an  act  to  amend  the  act  entitled  '  an  act  to  regulate  judicial  proceedings 
where  banks  and  bankers  are  parties,  and  to  prohibit  the  issuing  of  bank  bills  of  cer- 
tain descriptions,  passed  January  twenty  eight,  one  thousand  eight  hundred  and 
twenty-four,  and  to  declare  the  meaning  and  intention  of  the  ninth  section  thereof,'  " 
passed  March  fifth,  one  thousand  eight  hundred  and  forty-two,  whether  judgment 
has  been  obtained  or  not,  or  decree  rendered,  shall,  in  all  respects,  be  proceeded  with 
in  the  same  manner  as  though  such  suits  had  been  originally  commenced  under  the 
provisions  of  this  act;  and  the  above  recited  acts,  passed  January  twenty-eight,  one 
thousand  eight  hundred  and  twenty-four,  and  March  fifth,  one  thousand  eight  hun- 
dred and  forty-two,  be  and  the  same  are  hereby  repealed:  provided,  that  this  act  shall 
not  affect  any  special  act  for  the  relief  of  any  institution  or  company  which  has  exer- 
cised or  assumed  any  banking  powers,  or  for  the  relief  of  the  creditors  thereof. 
(March  12,  1845,  43  v.  67;    S.  &  C.  159.) 

§  3821-40.  Sec.  1.  SUITS  ON  BANK  NOTES:  DESCRIBED  IN  PLEADINGS.— 
In  any  suit  now  pending,  or  which  may  hereafter  be  instituted  against  any  bank,  or 
against  any  stockholder,  shareholder,  officer  or  agent  of  any  bank,  whether  authorized 
or  unauthorized  by  law,  and  whether  the  charter  of  such  bank,  in  case  such  bank  were 
ever  incorporated,  has  expired  or  not,  upon  the  bank  bills  or  notes  of  such  bank, 
authorized  or  unauthorized,  it  shall  not  be  required,  for  the  sufficiency  of  the  plead- 
ings in  such  action,  that  the  plaintiff's  declaration  shall  contain  a  separate  count  on 
each  bank  bill  or  note;  but  such  bank  bills  or  notes  may  be  given  in  evidence  under 
any  count  of  the  declaration  containing  the  allegation  that  the  plaintiff  is  the  holder 
of  sundry  bank  bills  or  notes,  issued  by  such  bank,  amounting,  in  the  whole,  to  a  cer- 
tain sum  named  in  the  declaration,  without  setting  forth  the  date,  denomination,  or 
names  of  the  payees,  and  other  particulars  of  the  contents  of  such  bills  or  notes,  or  of 
any  of  them;  and  such  bank  bills  or  notes  may  also  be  given  in  evidence  under  the 
common  counts,  in  the  action  of  debt  and  assumpsit.  (January  25,  1851,  49  v.  22; 
S.  &  C.  160.) 

§  3821-41.  Sec.  2.  AND  IN  COPY  AND  BILL  OF  PARTICULARS;  BUT  MUST 
BE  EXHIBITED  ON  DEMAND.  —  And,  in  case  the  defendant  or  defendants,  in  any 
such  action,  shall  require  of  the  plaintiff  a  bill  of  the  particulars  of  his  demand,  or  a 
copy  of  the  bills,  notes,  or  papers  which  the  plaintiff  designs  to  offer  in  evidence,  it 
shall  be  sufficient  for  the  plaintiff,  in  order  to  entitle  him  to  give  such  bills  or  notes  in 
evidence,  to  furnish  the  defendant  or  defendants,  or  to  file  in  the  cause  in  court  a  writ- 
ing, setting  forth  the  amount  of  such  bills  or  notes  of  each  denomination  held  by  him, 
without  giving  a  copy  of  each  of  such  bills  or  notes,  or  any  further  particulars 
thereof:  provided,  that  any  defendant  or  defendants  in  any  such  action,  may  at  any 
time  before  or  after  the  filing  of  the  declaration,  apply  to  the  court  in  which  the  action 
is  pending,  or  to  the  president  judge  thereof,  for  an  order  requiring  the  plaintiff  or 
plaintiffs  to  produce  before  the  clerk  of  the  court,  at  his  office,  at  such  time  as  the 
court  or  judge  may  direct,  for  the  inspection  by  the  defendant  or  defendants,  or  any 
of  them,  of  all  the  bills  or  notes  upon  which  the  plaintiff  or  plaintiffs  seek  to  recover; 
and  in  case  such  plaintiff  or  plaintiffs  shall  refuse  to  comply  with  such  order,  upon 
being  duly  notified  thereof,  he  or  they  shall  be  precluded  from  recovering  in  such 
action  upon  all  bills  or  notes  not  produced  in  pursuance  of  such  order:  provided,  how- 
ever, that  the  court  or  judge  may,  upon  good  cause  shown,  extend  the  time,  or  appoint 
another  suitable  time  for  such  inspection  of  said  bills  or  notes  before  the  clerk,  where 
(the  plaintiff  or  plaintiffs  have  been  prevented  from  a  compliance  with  such  order  as 
'first  made.     (January  25,  1851,  49  v.  22;  S.  &  C.  160.) 


Private  Corporations  in  Ohio. 


Assets,  etc.,  of  Expired,  etc,  Banks,   §§  3821-42-3821-46. 

ASSETS,  ETC.,   OF  EXPIRED  AND  INSOLVENT  BANKING  COMPANIES. 

§  3821-42.     Sec.   1.    PROCEEDINGS  TO  OBTAIN  AN  ACCOUNT  OF  ASSETS.  — 

In  all  cases  where  the  charter  of  any  banking  company  has,  or  may  hereafter  have 
expired,  or  become  forfeited,  any  stockholder  or  stockholders,  or  other  person  or  per- 
sons, in  interest,  may,  at  any  time,  by  petition  in  chancery,  in  a  suit  to  be  commenced 
in  the  county  where  such  bank  was  located,  be  entitled  to  have  any  person  or  persons 
holding,  or  having  received  any  funds,  credits,  or  assets  of  such  banking  company, 
render  a  full  and  fair  account  of  the  same.      (January  25,  1851,  49  v.  86;  S.  &  C.  161.) 


§3821-43.  Sec.  2.  INTEREST  ON  ASSETS,  ETC.  —  That  in  taking  such 
accounts,  the  person  or  persons  so  holding  or  having  received  said  funds,  credits,  or 
assets  of  such  banking  company,  shall  stand  chargeable  v  ith  interest  upon  all  sums 
of  money  and  credits  by  him  or  them  held,  and  with  all  rents  and  profits  received  or 
enjoyed  of  the  same,  from  the  time  of  having  first  received  said  funds  and  credits, 
or  having  enjoyed  and  received  said  rents  and  profits,  except  in  cases  where  by  proof 
made  to  the  satisfaction  of  the  court,  said  person  or  persons  have  kept  and  held  said 
funds  in  trust  upon  deposit,  without  using  or  receiving  any  benefit,  use,  or  profit  of 
the  same;  and  in  stating  said  account,  interest  shall  be  computed,  and  rents  made 
annually.     (January  25,  1851,  49  v.  86;    S.  &  C.    161.) 

§  3821-44.  Sec.  3.  APPOINTMENT  OF  RECEIVER.  —  That  in  case  any  person 
or  persons  holding  any  funds  or  assets  of  such  banking  company,  shall  claim  to  hold, 
or  to  have  received  the  same  in  a  fiduciary  capacity,  to  meet  any  contingent  or  future 
liability  of  such  company,  it  shall  be  lawful  for  the  court  to  appoint  a  receiver  or 
receivers  of  all  such  funds  or  assets,  as,  upon  hearing  of  said  cause,  shall  be  found 
necessary  to  meet  and  discharge  all  such  contingent  or  future  liabilities  of  such 
banking  company;  and  to  order  such  funds  to  be  loaned,  with  good  and  sufficient 
security,  upon  annual  interest,  until  the  time  when  such  contingent  and  future  lia- 
bilities may  be  finally  discharged  or  barred  by  laws  of  limitation:  provided,  that  said 
funds  so  loaned  upon  annual  interest  shall  be  made  payable,  either  in  whole  or 
part,  as  may  be  necessary  to  pay  any  such  accruing  contingent  liabilities,  within 
thirty  days  after  the  notice  and  demand  of  the  same.  (January  25,  1851,  49  v.  86; 
S.  &  C.  161.) 


Trustees    may    sue    after    expiration    of 
charter. 

A  warrant  of  attorney  given  to  a  bank  for 
the  entry  of  a  judgment  may  be  sued  on  by 
trustees  after  the  expiration  of  the  bank's 
charter.— Martin  v.  Bank,  13  Oh.  250   (  LS44  ) . 


Corporation   in   hands    of   receiver   can- 
not sue. 

A  corporation  which  has  been  placed  in  the 
hands  of  receivers  cannot  prosecute  a  suit. 
Such  suit  can  only  be  brought  by  the  receivers 
on  behalf  of  the  corporation. —  Miami  Ex- 
porting Co.  v.  Gano,  13  Oh.  270   (1S44). 


§  3821-45.  Sec.  4.  DISTRIBUTION  OF  ASSETS.  —  That  all  accruing  interest 
and  rents  upon  such  funds  and  assets,  after  discharging  such  contingent  liabilities 
arising  during  the  year,  shall  be  annually  divided  and  paid  over  to  the  several  parties 
in  interest,  according  to  their  respective  distributive  shares  in  said  fund,  to  be  deter- 
mined and  settled  by  said  court,  in  and  by  their  final  decree  in  said  cause;  and  the 
principal  of  said  fund,  and  all  assets  so  belonging  to  said  company,  shall,  according 
to  the  decree  and  order  of  the  court,  upon  final  discharge  or  termination  of  said  con- 
tingent liabilities  of  said  company,  be  in  like  manner  distributed  and  paid  over  to 
the  several  parties  in  interest,  according  to  their  respective  distributive  shares,  as 
determined  by  the  decree  of  said  court.     (January  25,  1851,  49  v.  86;    S.  &  C.  161.) 

§  3821-46.  Sec.  1.  WHEN  SUPREME  COURT  MAY  APPOINT  EXAMINER; 
DUTIES;  POWERS.  — Any  banking  corporation  in  the  state  of  Ohio,  organized  under 
the  laws  thereof,  which  shall  have  suspended  payment  upon  its  notes  of  circulation 
or  other  liabilities,  or  shall  have  made  an  assignment  in  trust  of  its  effects,  or  any 


Banks  and  Banking.  533 


Assets,  etc.,  of  Expired,  etc.,  Banks,  SS  3821-47-3821-50. 

part  thereof,  for  the  purpose  of  preferring  any  of  its  creditors,  whereby  the  provisions 
of  the  charter  of  any  such  corporation,  or  the  law  under  which  the  same  is  organized, 
the  supreme  court  of  Ohio  has  power  to  appoint  a  master  commissioner,  examiner  or 
other  person,  for  the  purpose  of  investigating  the  condition  and  management  of  said 
corporation.  The  master  commissioner,  examiner,  or  other  person,  who  may  be 
appointed  by  the  supreme  court  of  Ohio  to  make  such  examinations,  shall  examine 
fully  in  regard  to  all  ruch  matters  touching  the  condition  and  management  of  such 
corporation  as  may  be  directed  by  the  court,  and  for  that  purpose  power  is  given 
him  to  issue  process  for  the  attendance  of  witnesses,  the  production  of  papers,  books, 
and  accounts  necessary  for  such  examination;  also,  to  summon  the  officers,  agents, 
assignees,  or  employees  of  said  corporation,  or  other  persons,  to  appear  before  him  and 
testify  in  relation  to  the  condition  and  management  of  said  corporation,  and  also  to 
take  all  necessary  testimony  to  show  the  condition  and  management  of  the  affairs 
of  said  corporation.     (April  2,  1859,  56  v.  117;  S.  &  C.  162.) 

§  3821-47.  Sec.  2.  SAME. — Said  master  commissioner,  examiner,  or  other  per- 
son, who  may  be  appointed  by  said  court,  shall  have  power  to  compel  the  service  of 
his  process,  the  attendance  of  witnesses  and  other  persons,  the  production  of  books, 
papers,  and  accounts,  to  compel  answers  to  questions  which  may  be  propounded  to  all 
persons  by  him  sworn,  and  to  enforce  all  orders  by  him  made  touching  such  examina- 
tion, by  proceeding  for  contempt,  as  fully,  and  to  the  same  extent  as  any  court  of  the 
state  of  Ohio  can.     (April  2,   1859,  56  v.   117;  S.  &  C.   162.) 

§  3821-48.  Sec.  3.  HIS  OATH.  —  The  master  commissioner,  examiner,  or  other 
person,  before  entering  upon  the  duties  of  such  appointment,  shall  take  an  oath,  that 
he  will  faithfully,  honestly,  and  impartially  discharge  the  same,  and  shall  report  his 
proceedings  to  the  supreme  court  as  it  may  require.  (April  2,  1859,  56  v.  117; 
S.  &  C.   162.) 

§  3821-49.  Sec.  4.  HIS  POWER.— If ,  upon  the  examination  of  the  officers,  agents, 
employes  or  assignees  of  said  corporation,  or  from  the  evidence  of  other  witnesses 
sworn,  it  shall  appear  that  there  are  books,  papers,  or  accounts  material  and  neces- 
sary to  the  examination,  provided  for  in  this  act,  in  the  possession,  or  under  the  con- 
trol of,  or  within  the  knowledge  of  such  officers,  agents,  employes  or  assignees,  within 
the  state  of  Ohio,  or  elsewhere,  which  now  belong  to,  or  once  did  belong  to  said  cor- 
poration, the  originals  of  which  can  not  be  produced  at  such  examination,  such  master 
commissioner,  examiners  or  other  person  shall  have  power  to  the  same  extent,  and  in 
the  same  manner  as  is  prescribed  by  section  two  (§  3821-47)  of  this  act,  to  compel  the 
officers,  agents,  employes  or  assignees  of  said  corporation  to  produce  upon  such  exami- 
nation, attested  copies  of  said  books,  papers,  or  accounts.  (April  2,  1859,  56  v.  117; 
S.  &  C.  162.) 

§  3821-50.  Sec.  1.  CIRCULATION  OF  BILLS  OF  EXPIRED  BANKS  PRO- 
HIBITED; PENALTY  THEREFOR;  RE-ISSUE  OF  SUCH  PAPER.  —  It  shall  be 
unlawful  for  any  officer  or  agent  of  any  banking  company,  or  of  any  other  incorpo- 
rated company,  any  private  banker,  broker,  dealer  in  money,  the  treasurer  of  this 
state,  or  the  treasurer  of  any  county  of  this  state,  or  any  clerk  or  agent  of  any  private 
banker,  broker,  or  dealer  in  money;  or  any  clerk  or  assistant  of  the  treasurer  of  state, 
or  of  the  treasurer  of  any  county  of  this  state,  either  directly  or  indirectly,  to  put  in 
circulation,  pay  out,  loan,  or  exchange,  otherwise  than  to  send  or  deliver  for  the  pur- 
pose of  redemption,  to  the  company,  person  or  persons,  trustee  or  trustees,  bound  to 
redeem  the  same,  any  bank  note  or  notes  of  any  bank  of  this  state,  whose  charter,  or 
whose  right  to  issue  notes  of  circulation,  shall  have  expired,  or  which  shall  have  given 
notict  officially  of  its  intention  to  close  its  banking  business;  and  any  person  or  per- 
sons who  shall  violate  any  of  the  foregoing  provisions  of  this  act,  shall  be  deemed 


534  Private  Corporations  in  Ohio. 

Assets,  etc.,  of  Expired,  etc. —  Deposit  and  Circulation  of  Banks,  §§  3821-51-3821-55. 

guilty  of  a  misdemeanor,  and  upon  conviction  thereof,  shall  be  fined  in  any  sum  not 
exceeding  five  hundred  dollars  for  each  and  every  offense,  or  be  imprisoned  in  the  jail 
of  the  county,  for  any  period  of  time  not  exceeding  thirty  days,  or  both,  at  the  dis- 
cretion of  the  court:  provided,  that  no  such  company,  after  the  passage  of  this  act, 
shall  re-issue  any  of  its  circulating  notes  redeemed  by  it,  or  received  in  the  ordinary 
course  of  business,  but  shall  keep  a  regular  account  thereof,  and  monthly,  in  the 
presence  of  the  auditor  and  treasurer  of  state,  burn  the  same.  (May  1,  1854,  52  v. 
133;  S.  &  C.  164.) 

§  3821-51.  Sec.  2.  PENALTY  FOE,  RE-ISSUING.  —  It  shall  be  unlawful  for 
any  person  or  persons,  whose  duty  it  is,  or  who  is  or  are  bound  by  any  law  of  this 
state  to  redeem  the  notes  of  any  banking  company,  whose  charter  or  right  to  issue 
notes  of  circulation  shall  have  expired,  or  which  has  given  notice,  officially,  of  its 
intention  to  close  its  banking  business;  or  for  any  trustee  or  trustees  of  such  banking 
company,  or  any  agent  of  such  person  or  persons,  trustee  or  trusteas  as  aforesaid,  to 
put  in  circulation,  pay  out,  loan  or  exchange,  either  directly  or  indirectly,  any  note 
or  notes  of  any  such  banking  company,  described  in  this  section  of  this  act;  and  any 
person  or  persons  offending  against  the  provisions  of  this  section  mentioned,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  upon  conviction  thereof,  shall  be  fined  in  any 
sum  not  exceeding  one  thousand  dollars,  or  imprisoned  in  the  county  jail  for  any 
period  of  time  not  exceeding  thirty  days,  or  both,  at  the  discretion  of  the  court. 
(May  1,  1854,  52  v.   133;  S.  &  C.   164.) 

§  3821-52.  Sec.  3.  HOW  PEOSECUTED.  —  Prosecutions  for  violations  of  this 
act,  shall  be  by  information  of  the  prosecuting  attorney,  or  by  indictment  of  the  grand 
jury  of  the  county  in  which  the  offense  was  committed,  in  the  court  of  common  pleas, 
or  any  other  court  having  competent  jurisdiction  of  like  offenses.  (May  1,  1854,  52 
v.  133;  S.  &  C.   164.) 

§  3821-53.  Sec.  4.  REPEALING  CLAUSE.  —  That  section  six  of  the  act  entitled 
"  an  act  supplement(ary)  to  the  act  entitled  an  act  to  prevent  unauthorized  banking, 
and  the  circulation  of  unauthorized  bank  paper,"  passed  January  22,  1846,  be  and  the 
same  is  hereby  repealed.     (May  1,  1854,  52  v.  133;  S.  &  C.  164.) 

§  3821-54.  Sec.  5.  PENALTY  FOR  NOT  REDEEMING.  —  It  shall  be  the  duty 
of  the  trustee  or  trustees,  or  agent  of  any  banking  company,  whose  charter  or  right 
to  issue  notes  of  circulation  shall  have  expired,  or  which  has  given  notice,  officially, 
of  its  intention  to  close  its  banking  business,  to  redeem  its  notes  in  the  order  of  their 
presentation;  and  on  the  refusal  of  the  trustee  or  trustees,  or  agent  to  redeem  any 
notes  presented  for  redemption,  the  holder  thereof  shall  have  the  same  protested;  and 
all  protested  notes  shall  draw  interest  at  the  rate  of  fifteen  per  cent,  per  annum,  from 
the  date  of  protest  until  redeemed.      (May  1,  1854,  52  v.   133;  S.  &  C.  164.) 

STOCKS,  ETC.,  DEPOSITED  BY  BANKS. 
§  3821-55.  Sec.  1.  CERTIFICATES  OF  FUNDED  DEBT  DEPOSITED  WITH 
STATE  TREASURER,  TRANSFER,  ETC.  —  The  certificates  of  the  funded  debt  of  this 
state  and  of  the  United  States,  required  to  be  deposited  with  and  transferred  to  the 
treasurer  of  state  as  security  for  the  redemption  of  circulating  notes  of  independent 
banking  companies,  agreeably  to  the  provisions  of  the  act  to  incorporate  the  state 
bank  of  Ohio,  and  other  banking  companies,  passed  February  24,  1845;  and  the  cer- 
tificates of  the  funded  debt  of  this  state,  of  the  United  States,  and  of  other  states, 
required  to  be  transferred  to  the  auditor  of  state  as  security  for  the  redemption  of  the 
circulating  notes  of  banking  companies,  agreeably  to  the  provisions  of  the  act  to 
authorize  free  banking,  passed  March  21,  1851,  and  of  the  act  supplementary  to  the 


Banks  and  Banking.  535 

Deposit  and  Circulation  of  Banks,  §§  3821-56,  3821-57. 


last  mentioned  act,  passed  April  11,  1856,  shall  hereafter  he  deposited  with  the  treas- 
urer of  state,  and  be  carefully  preserved  by  him  in  the  state  treasury;  and  all  such 
certificates  as  shall  have  heretofore  been  transferred  to  the  auditor  of  state  shall  be 
by  him  deposited  with  the  treasurer  of  state,  and  be  carefully  preserved  by  him  in 
the  state  treasury.  All  such  certificates,  so  deposited,  as  shall  be  transferable  at  any 
agency  or  office  of  this  state,  of  the  United  States,  or  of  any  other  state,  shall  be  trans- 
ferred and  made  payable  to  "  the  treasurer  of  the  state  of  Ohio,  and  the  comptroller 
of  the  treasury  of  the  state  of  Ohio,  for  the  use  of  "  (naming  the  particular  banking 
company  owning  or  depositing  the  same);  and  such  certificates  so  deposited,  and  that 
have  heretofore  been  deposited,  shall  be  subject  to  sale  and  transfer  upon  the  written 
authority  of  the  treasurer  of  state,  the  comptroller  of  the  treasury,  and  of  the  presi- 
dent or  cashier  of  the  particular  banking  company  owning  or  depositing  the  same,  and 
not  otherwise,  except  as  hereinafter  provided;  and  all  such  certificates  so  deposited, 
as  shall  be  payable  to  any  person  or  persons,  corporation  or  banking  company,  or 
order,  or  assigns,  or  bearer,  or  as  shall  be  transferable  by  delivery,  shall,  by  special 
endorsement  thereon,  be  assigned  to  the  treasurer  and  comptroller  for  the  use  of  the 
banking  company  owning  or  depositing  the  same,  in  the  manner  aforesaid;  and  such 
certificates  as  shall  be  so  assigned  and  deposited,  and  such  as  have  heretofore  been 
deposited,  shall  be  transferable  by  indorsement  of  the  treasurer  and  comptroller,  by 
special  indorsement,  to  the  banking  company  owning  or  depositing  the  same,  or  to 
such  person  or  persons,  company  or  corporation,  as  the  president  or  cashier  of  the 
proper  banking  company  shall  authorize  in  writing,  and  not  otherwise,  except  as 
hereinafter  provided;  but  no  such  transfer  or  assignment  shall  be  made,  unless  the 
banking  company  owning  or  depositing  such  certificates,  shall  be  entitled  thereto, 
agreeably  to  the  provisions  of  the  act  under  which  the  banking  company  shall  have 
been  organized.     (April  5,   1859,  56  v.   162;  S.  &  C.   165.) 

§  3821-56.  Sec.  2.  ACCOUNTS  TO  BE  KEPT  BY  THE  TREASURER  AND 
COMPTROLLER,  AND  BY  REGISTER  OF  BANK  DEPARTMENT;  ACCOUNTS 
OPEN  TO  INSPECTION.  —  It  shall  be  the  duty  of  the  treasurer  of  state,  and  of  the 
comptroller  of  the  treasury,  forthwith  to  make,  and  thereafter  to  keep  in  their 
respective  departments,  accurate  accounts  of  all  certificates  of  debt  so  deposited  as 
aforesaid,  and  of  all  certificates  hereafter  deposited  as  security  for  the  redemption  of 
circulating  notes  of  banking  companies;  and  the  treasurer  shall  forthwith  inform 
the  register  of  the  bank  department  of  the  certificates  that  have  heretofore  been,  and 
that  may  hereafter  be  deposited;  and  it  shall  be  the  duty  of  the  register  to  keep 
accurate  accounts  thereof;  and  such  accounts,  as  also  all  other  accounts  pertaining 
to  banking  companies,  shall,  at  all  reasonable  times,  be  open  to  the  inspection  and 
examination  of  any  officer  or  agent  of  any  of  said  banking  companies;  of  the  gov- 
ernor, auditor  of  state,  treasurer,  comptroller,  and  attorney-general,  or  either  of  them, 
or  any  commissioner  appointed  by  the  governor  for  that  purpose,  and  of  any  com- 
mittee of  the  general  assembly,  or  either  branch  thereof,  thereunto  authorized  by 
resolution.      (April  5,  1859,  56  v.   162;  S.  &  C.   165.) 

§  3821-57.  Sec.  3.  ENGRAVING  PLATES  AND  PRINTING  NOTES;  DUTIES 
OF  COMPTROLLER  AND  TREASURER.  —  Whenever  any  banking  company  shall 
desire  to  have  any  plate  or  plates  for  circulating  notes  engraved,  or  any  blank  cir- 
culating notes  printed,  and  shall  notify  the  comptroller  thereof  in  writing,  the  comp- 
troller shall  issue  an  order  to  the  treasurer  of  state  to  cause  the  same  to  be  engraved 
or  printed,  specifying  particularly  in  the  order  the  denomination  or  denominations 
cf  the  plate  or  plates  to  be  engraved;  or  the  several  denominations  of  the  blank  notes 
tc  be  printed,  with  the  amount  of  each  denomination;  and  the  treasurer  of  state  shall 
strictly  observe  such  order  in  causing  such  engraving  and  printing  to  be  done;  and 
upon  the  delivery  to  the  treasurer  of  any  blank  printed  circulating  notes,  the  treas- 
urer shall  notify  the  comptroller  and  register  thereof,  and  they,  in  the  presence  of 


536  Private  Corporations  in  Ohio. 

Deposit  and   Circulation  of  Banks,   §§   3821-58-3821-61. 

the  treasurer,  shall  carefully  examine  the  same,  and  make  an  account  thereof  in  their 
respective  departments.      (April  5,   1859,  56  v.   162;  S.  &  C.   165.) 

§  3821-58.  Sec.  4.  REGISTERED  NOTES;  DELIVERY  THEREOF  TO  BANKS, 
ETC.  —  When  a  banking  company  shall  be  entitled  to  receive  any  registered  notes, 
the  comptroller  of  the  treasury  shall,  on  the  written  application  of  the  proper  officers 
of  the  bank,  issue  an  order  on  the  treasurer  of  state  therefor,  and  deliver  the  same  to 
the  register,  specifying  in  such  order  the  amount  of  each  denomination  of  unregistered 
notes,  to  be  delivered  to  the  register;  and  on  the  presentation  of  such  order,  and 
ascertaining  from  the  accounts  in  his  office  that  the  banking  company  is  entitled'  to 
the  same,  the  treasurer  of  state  shall  deliver  the  notes  specified  in  such  order  to  the 
register,  who  shall  forthwith  register  and  deliver  the  same  to  the  agent  of  the  bank 
ing  company,  and  make  an  account  thereof;  but  such  notes  shall  not  be  registered 
or  delivered  unless  it  shall  appear  from  the  accounts  in  the  register's  office  that  the 
bank  is  entitled  thereto.      (April  5,  1859,  56  v.  162;  S.  &  C.   165.) 

§  3821-59.  Sec.  5.  BURNING  RETURNED  CIRCULATING  NOTES.  —  When- 
ever a  banking  company  shall  return  any  of  its  circulating  notes  to  be  burnt  the 
same  shall  be  burned  to  ashes  by  the  treasurer  of  state,  in  the  presence  of  the  comp- 
troller of  the  treasury  and  the  agent  of  the  bank,  and  four  certificates  thereof  be  made 
and  signed  by  the  treasurer,  comptroller,  and  agent  of  the  bank,  specifying  the 
amount  of  each  denomination  of  notes  so  burned  to  ashes;  one  copy  of  which  certifi- 
cate shall  be  delivered  to  the  agent  of  the  bank,  and  one  each  to  the  treasurer,  comp- 
troller, and  register.      (April  5,  1859,  56  v.   162;  S.  &  C.  165.) 

§  3821-60.  Sec.  6.  THE  REGISTER;  HIS  ACCOUNTS  OF  STOCK  AND  CIR- 
CULATING NOTES  DELIVERED  TO  BANKS  AND  RETURNED  TO  BE  BURNT.  — 
The  auditor  of  state  shall  appoint  some  suitable  person  as  a  clerk  in  his  office,  who 
shall  be  styled  the  register,  and  be  under  the  supervision  and  control  of  the  auditor. 
The  register  shall,  without  delay,  make  and  keep  in  his  office  accurate  accounts  of  all 
certificates  of  debt  now  deposited,  and  that  may  hereafter  be  deposited  with  the  treas- 
urer as  security  for  the  redemption  of  circulating  notes  of  banking  companies;  he 
shall  also  make  and  keep  an  account  of  the  amount  of  each  denomination  of  the  notes 
of  each  banking  company,  delivered  to  such  bank,  and  of  the  amount  returned  and 
burned,  so  as  to  show  the  balance  of  notes  chargeable  to  such  bank;  and  he  shall 
also  keep  accurate  accounts  of  all  notes  hereafter  registered  and  delivered  to  each 
bank,  and  notes  returned  to  be  burnt,  so  as  at  all  times  to  exhibit  the  true  amount 
of  each  denomination  of  registered  notes  delivered  to  each  banking  company,  and  the 
amount  thereof  returned.     (April  5,  1859,  56  v.  162;  S.  &  C.  165.) 

§  3821-61.  Sec.  7.  THE  SALE  OF  STOCK  TO  REDEEM  NOTES  OF  FAILING 
BANK;  REPORT  OF  SALE  AND  PROCEEDS;  ACCOUNTS  THEREOF;  PAY- 
MENTS FOR  REDEMPTION  OF  NOTES,  HOW  MADE;  BURNING  REDEEMED 
NOTES.  —  Whenever  it  shall  be  necessary  to  sell  any  of  the  certificates  of  funded  debt 
so  deposited  as  aforesaid,  for  the  redemption  of  the  notes  of  a  failing  bank,  the 
auditor,  treasurer,  and  comptroller  shall  make  an  order  on  the  treasurer  to  sell  such 
certificate  and  certificates,  and  at  such  time  and  times,  place  and  places,  as  may  be 
necessary  to  redeem  the  outstanding  circulating  notes  of  such  bank,  as  the  same  may 
be  presented  for  redemption,  and  produce  the  largest  sum  that  may  be  obtained  for 
such  certificates;  and  when  it  shall  have  been  determined  to  make  such  sale,  the  comp- 
troller shall  issue  an  order  to  the  treasurer  specifying  what  certificates  shall  be  sold, 
and  the  time  and  times,  place  and  places  of  selling  the  same;  and  in  making  such 
sale  the  treasurer  shall  be  governed  by  the  provisions  of  the  act  under  which  such 
bank  shall  have  been  organized,  except  as  provided  by  this  act.  When  any  such  sale 
shall  be  made,  the  treasurer  shall  forthwith  report  the  same  and  the  amount  of  money 
thence  arising,  to  the  comptroller  and  the  auditor,  who  shall  cause  an  account  thereof 


Banks  and  Banking.  537 


Deposit  and  Circulation  —  Free  Banking,   SS   3821-62  3821-65. 

to  be  made  in  their  respective  departments,  and  the  treasurer  shall  be  charged  with 
the  money  as  a  redemption  fund,  and  all  payments  made  by  the  treasurer  for  the 
redemption  of  the  notes  of  a  bank,  shall  be  upon  the  warrant  of  the  auditor,  as  in 
other  cases;  all  notes,  presented  for  redemption  at  the  treasury,  shall  be  burned  to 
ashes  by  the  treasurer  in  the  presence  of  the  comptroller  and  register,  and  certificates 
of  such  burning,  signed  by  the  treasurer,  ccrrp'rcller,  rrd  register,  shall  be  made, 
and  account  thereof  kept,  as  in  other  cases.     (April  5,  1859,  Z6  v.   162;  S.  &  C.   165.) 

§  3821-62.  Sec.  8.  PROCEEDINGS  ON  QUO  WARRANTO  AGAINST  BANKS.  — 
If  any  banking  company  shall  fail  to  transfer,  and  keep  deposited  with  the  treasurer 
of  state,  the  amount  of  securities  for  the  redemption  of  circulating  notes  required  to  be 
deposited  by  the  act  under  which  such  banking  company  shall  have  been  organized; 
•  or  shall  fail  to  make  the  quarterly  returns  of  the  condition  of  the  bank,  or  to  keep  on 
hand  the  amount  of  coin  and  its  equivalent  required  by  the  act  aforesaid;  or  if  any 
other  violation  of  any  of  the  provisions  of  the  act  under  which  such  banking  company 
may  be  organized  shall  come  to  his  knowledge,  the  auditor  cf  state  shall  forthwith 
notify  the  attorney-general  thereof;  and  the  attorney-general  shall  thereupon,  and 
also  for  any  such  violations  that  may  otherwise  come  to  his  knowledge,  proceed  by 
quo  warranto,  in  the  proper  court,  against  such  banking  company  as  for  a  forfeiture 
of  the  corporate  franchises  thereof.      (April  5,  1859,  56  v.  162;  S.  &  C.  165.) 

§  3821-63.  Sec.  9.  FRAUDULENT  USE  OR  DISPOSITION  OF  SECURITIES 
PUNISHED  AS  EMBEZZLEMENT;  PROSECUTIONS,  ETC.  —  If  the  auditor  of  state, 
treasurer  of  state,  or  comptroller  of  the  treasury,  or  any  clerk  in  either  of  their  offices, 
shall  knowingly  and  purposely,  and  with  intent  thereby  to  cheat  or  defraud  any 
person  or  persons,  or  body  corporate,  use  or  otherwise  dispose  of  any  of  the  securities 
deposited  by  any  banking  company  as  aforesaid,  or  any  of  the  circulating  notes  of 
any  banking  company,  whether  the  same  be  registered  or  unregistered,  and  which 
may  have  come  into  his  possession  or  under  his  control,  for  any  of  the  purposes 
named  in  this  act,  or  in  the  several  acts  mentioned  in  the  first  section  (§  3821-55)  of 
this  act,  he  shall  be  deemed  and  held  guilty  of  embezzlement,  and  prosecuted  by 
indictment  in  any  court  having  jurisdiction  of  the  offense,  and  upon  conviction 
thereof  shall  suffer  the  same  punishment  or  penalty  as  is  or  may  be  provided  by  law 
for  the  punishment  of  persons  guilty  of  the  embezzlement  of  the  proper  securities  and 
moneys  of  the  state;  and  in  all  prosecutions  for  embezzlement  under  the  provisions 
of  this  act,  the  securities  and  the  notes  aforesaid,  whether  registered  or  unregistered, 
shall  be  deemed  and  held  to  be  of  the  value  denominated  on  the  face  thereof.  (April 
5,  1859,  56  v.   162;  S.  &  C.   165.) 

Sec.  10.  Sections  seven,  eight,  and  nine  of  the  act  entitled  "  an  act  to  further 
provide  for  the  better  regulation,  and  receipt,  disbursement,  and  safe-keeping  of  the 
public  revenue,  passed  April  12,  1858,"  are  hereby  repealed;  provided,  that  the  repeal 
thereof  shall  not  affect  the  existing  rights  or  liabilities,  civil  or  criminal,  of  any 
person  or  persons,  arising  under  the  sections  so  repealed.  (April  5,  1859,  56  v.  162; 
S.  &  C.   165.) 

FREE  BANKING. 

§  3821-64.  Sec.  1.  WHO  MAY  ENGAGE  IN  BANKING.  —  Any  number  of 
natural  persons,  not  less  than  three,  may  engage  in  the  business  of  banking,  with  all 
the  rights,  privileges,  and  powers  conferred  by  and  subject  to  the  restrictions  of  this 
act.     (March  21,  1851,  49  v.  41.) 

Not  inconsistent  with  the  constitution  of  1851,  and  is  not  repealed  thereby. 

Cass  v.  Dillon,  2  Oh.  St.  607  (1853)  ;   Citizens'  Bank  v.  Wright.  G  Oh.  St.  310  (1S56). 

§  3821-65.  Sec.  2.  CERTIFICATE  TO  BE  MADE;  COPY  TO  BE  DEPOSITED 
WITH  SECRETARY  OF  STATE.  —  Persons  associating  to  form  a  banking  company 
shall,  under  their  hands  and  seals,  make  a  certificate,  which  shall  specify: 


538  Private  Corporations  in  Ohio. 


Free   Banking,    §§    3821-66-3821-69. 


First  —  The  name  assumed  by  such  company,  and  by  which  it  shall  be  known 
in  its  dealings;  also,  the  name  of  the  place  where  its  banking  operations  shall  be 
carried  on,  at  which  place  such  banking  company  shall  keep  an  office  for  the  transac- 
tion of  business,  and  for  the  redemption  of  its  circulating  notes. 

Second  —  The  amount  of  the  capital  stock  of  such  company,  and  the  number  of 
shares  into  which  the  same  is  divided. 

Third  —  The  name  and  place  of  residence,  and  the  number  of  shares  held  by  each 
member  of  the  company. 

Fourth  —  The  time  when  such  company  shall  have  been  formed.  Such  certificate 
shall  be  acknowledged  before  a  justice  of  the  peace  or  notary  public,  and  shall  be 
recorded  by  the  recorder  of  the  county  where  such  company  is  to  be  established,  in  a 
book  to  be  kept  by  him  for  that  purpose,  which  shall,  at  all  times  during  office  hours, 
be  kept  open  for  inspection  of  any  person  wishing  to  examine  the  same;  and  a  copy 
of  said  record,  duly  certified,  shall  be  by  the  recorder  transmitted  to  the  secretary  of 
state,  who  shall  record  and  carefully  preserve  the  same  in  his  office;  copies  thereof, 
duly  certified  by  either  of  those  officers,  may  be  used  as  evidence  in  all  courts  and 
places,  for  and  against  any  such  company,  and  shall  be  conclusive  evidence  of  the 
legal  existence  of  such  banking  company.     (March  21,  1851,  49  v.  41.) 

§  3821-66.  Sec.  3.  CAPITAL  STOCK.  —  The  capital  stock  of  each  company 
hereby  authorized,  exclusive  of  the  securities  of  such  company,  deposited  with  the 
auditor  of  state  for  the  redemption  of  the  notes  of  circulation  of  such  company,  shall 
be  at  least  twenty-five  thousand  dollars,  and  shall  not  exceed  five  hundred  thousand 
dollars;  and  any  such  company  may,  from  time  to  time,  increase  its  capital  stock  to 
any  amount  not  exceeding  five  hundred  thousand  dollars.     (March  21,  1851,  49  v.  41.) 

§  3821-67.  Sec.  4.  SIXTY  PER  CENT  OF  STOCK  TO  BE  PAID  IN.  —  Every 
such  banking  company,  before  commencing  business,  shall  have  paid  in  and  remain- 
ing in  its  possession,  bona  fide,  the  property  of  such  company,  for  the  sole  purposes 
of  such  company,  sixty  per  centum  of  its  entire  capital  stock,  and  the  residue  shall 
be  paid  in  in  such  installments  as  may  be  required  by  the  directors  of  any  such  com- 
pany.    (March  21,   1851,  49  v.  41.) 

§  3821-68.  Sec.  5.  GOVERNOR,  AUDITOR,  SECRETARY  OF  STATE  TO  FUR- 
NISH COMPANY  A  CERTIFICATE.  —  Whenever  any  company  herein  authorized 
shall  furnish  to  the  auditor,  governor,  and  secretary  of  state  satisfactory  evidence 
that  such  company  has  complied  with  the  preceding  sections  of  this  act,  said  auditor, 
governor,  and  secretary  shall  furnish  to  such  company  a  certificate  of  such  fact,  under 
their  hands  and  under  the  great  seal  of  the  state,  which  shall  be  recorded  in  the  office 
of  the  secretary  of  state,  in  the  same  book  in  which  is  required  to  be  recorded  the 
certificate  provided  for  in  the  second  section  (§  3821-65)  of  this  act.  (March  21,  1851, 
49  v.  41.) 

§  3821-69.  Sec.  10.  POWERS  OF  THE  COMPANY.  —  Every  company  formed 
under  this  act,  after  having  procured  the  certificate  required  in  the  fifth  section 
(§  3821-68)  of  this  act,  shall  be,  and  hereby  is  created  a  body  politic  and  corporate, 
with  succession,  until  the  year  eighteen  hundred  and  seventy-two,  and  thereafter, 
until  the  repeal  of  this  act;  and  by  its  name  shall  have  power  to  contract,  and  to  prose- 
cute and  defend  suits  and  actions  of  every  description,  as  fully  as  natural  persons;  to 
loan  money,  buy,  sell,  and  discount  bills  of  exchange,  notes  and  all  other  written 
evidences  of  debt,  except  such  as  may  be  herein  prohibited;  to  receive  deposits,  buy 
and  sell  gold  and  silver  coin  and  bullion,  collect  and  pay  over  money,  and  transact 
all  other  business  properly  appertaining  to  banking,  subject  to  the  provisions  and 
restrictions  of  this  act;  may  acquire,  hold  and  convey  such  real  estate  as  may  be  neces- 
sary to  the  convenient  transaction  of  its  business,  and  no  more;  but  may,  however, 


Banks  and  Bankinc.  539 


Free   Banking,    §§    3821-70  3821-73. 


acquire  title  to  any  real  estate  pledged  to  secure  any  debt  previously  contracted  or 
purchased  on  an  execution  or  order  of  sale,  to  satisfy  any  judgment  or  decree  in  its 
favor,  or  which  shall  have  been  conveyed  to  it  in  payment  of  any  previous  debt;  but 
shall  not  hold  any  real  estate  so  acquired,  longer  than  is  necessary  to  avoid  a  loss  of 
any  part  of  the  debt,  interest,  and  costs  for  the  collection  or  security  of  which  it  was 
acquired;  but  at  any  time  before  selling  the  same,  upon  being  tendered  by  the  last 
preceding  owner,  or  his  legal  representative,  such  sum  as  shall  be  necessary  to  save 
such  company  from  loss  of  any  part  of  the  debt,  interest,  taxes,  costs,  and  other  neces- 
sary charges  for  the  collection  or  security  of  which  said  real  estate  was  acquired,  such 
company  shall  release  to  such  owner,  his  legal  representative  or  assigns,  all  its  right, 
title,  and  interest  therein.     (March  21,  1851,  49  v.  41.) 

§  3821-70.  Sec.  11.  STOCK  TO  BE  PERSONAL  PROPERTY,  ETC.  —  The  capital 
stock  of  every  company  shall  be  divided  into  shares  of  fifty  dollars  each,  which  shall 
be  deemed  personal  property,  and  shall  only  be  assignable  on  the  books  of  the  com- 
pany, in  such  a  manner  as  its  by-laws  shall  prescribe;  each  bank  shall  have  a  lien 
upon  all  stock  owned  by  its  debtors,  and  no  stock  shall  be  transferred  without  the 
consent  of  a  majority  of  the  directors,  while  the  holder  thereof  is  indebted  to  the 
company.     (March  21,  1851,  49  v.  41.) 

§  3821-71.  Sec.  12.  NO  LIEN  TO  BE  TAKEN  ON  CAPITAL  STOCK.  —No  com- 
pany shall  take,  as  security  for  any  loan  or  discount,  a  lien  upon  any  part  of  its  cap- 
ital stock;  but  the  same  security,  both  in  kind  and  amount,  shall  be  required  of  share- 
holders as  of  persons  not  shareholders;  and  no  banking  company  shall  be  the  holder 
or  purchaser  of  any  portion  of  its  capital  stock,  or  of  the  capital  stock  of  any  other 
incorporated  company,  unless  such  purchase  shall  be  necessary  to  prevent  loss  upon 
a  debt  previously  contracted  in  good  faith,  on  security  which;  at  the  time,  was  deemed 
adequate  to  insure  the  payment  of  such  debt,  independent  of  any  lien  upon  such  stock; 
and  stock  so  purchased  shall  in  no  case  be  held  by  the  company  so  purchasing,  for  a 
longer  period  of  time  than  six  months,  if  the  same  can  be  sold  for  what  the  stock 
cost,  at  par.     (March  21,  1851,  49  v.  41.) 

Not    entitled    to    transfer    of    stock    of  titled  to  a  transfer  of  such  stock  on  the  books 

other  bank.  of  the  latter  bank,  nor  is  the  latter  liable  in 

A  bank  organized  under  this  act,  receiving  damages  for  refusal  to  make  such   transfer.— 

as  security  for  a  loan,  certificates  of  stock  of  Franklin   Bank    v.    Commercial    Bank.   36   Oh. 

another  bank  similarly   organized,   is  not  en-  St.  350   (1881). 

§  3821-72.  Sec.  13.  WHO  MAY  VOTE  AT  ELECTIONS.  —  In  all  elections  of 
directors,  and  in  deciding  all  questions  at  meetings  of  the  stockholders,  each  share 
shall  entitle  the  owner  thereof  to  one  vote;  stockholders  may  vote  by  proxies,  duly 
authorized  in  writing,  but  no  officer,  clerk,  teller,  or  book-keeper  of  the  company,  shall 
act  as  proxy.     (March  21,   1851,  49  v.  41.) 

§  3821-73.  Sec.  14.  OFFICER,  AND  WHO  ELIGIBLE.  —  The  affairs  of  every 
company  formed  and  organized  to  carry  on  the  business  of  banking  under  the  provi- 
sions of  this  act,  shall  be  managed  by  not  less  than  three  (3)  nor  more  than  nine  (9) 
directors,  as  may  be  determined  by  a  majority  in  interest  of  the  stockholders;  every 
director  shall,  during  the  whole  term  of  his  service,  be  a  resident  of  the  state;  at 
least  three-fourths  of  the  directors  shall  have  resided  in  this  state  two  (2)  years  next 
previous  to  their  election  as  directors;  the  directors  of  each  banking  company,  col- 
lectively, shall  own  at  least  one-tenth  of  the  capital  stock;  each  director  shall  take 
an  oath  that  he  will,  so  far  as  the  duty  devolves  on  him,  diligently  and  honestly 
administer  the  affairs  of  the  company,  and  not  knowingly  violate,  or  willingly  permit 
to  De  violated,  any  of  the  provisions  of  this  act;  that  he  is  a  bona  fide  owner,  in  his 
own  right,  of  the  stock,  specifying  the  amount  standing  in  his  name  on  the  books  of 


540  Private  Corporations  in  Ohio. 

Free    Banking,    §§    3821-74-3821-77. 

the  company,  and  that  the  same  is  not  hypothecated  or  in  any  way  pledged  as  security 
for  any  loan  obtained  or  debt  owing,  which  oath,  subscribed  by  himself  and  certified 
by  the  officer  before  whom  it  was  taken,  shall  be  filed  and  carefully  preserved  in  the 
office  of  the  recorder  of  the  county  in  which  the  banking  company  is  located.  (April 
15,  1890,  87  v.  208;  March  21,  1851,  49  v.  41.) 

§  3821-74.  Sec.  15.  TERM  OF  OFFICE  OF  DIRECTORS.  —  The  directors  of  any 
banking  company  first  elected,  shall  hold  their  places  until  the  first  Monday  in  Jan- 
uary next  thereafter,  and  until  their  successors  shall  be  elected  and  qualified;  all 
subsequent  elections  shall  be  held  annually,  on  the  first  Monday  of  January,  at  the 
office  of  the  bank,  and  the  directors  so  elected,  shall  hold  their  place  for  one  year, 
and  until  their  successors  are  elected  and  qualified;  but  any  director  removing  from 
the  state,  shall  thereby  vacate  his  place;  any  vacancy  in  the  board  shall  be  filled  by 
appointment,  by  the  remaining  directors;  the  director  so  appointed  shall  hold  his 
place  until  the  next  annual  election,  and  if,  from  any  cause,  an  election  of  directors 
shall  not  be  made  at  the  time  appointed,  the  company  shall  not,  for  that  cause,  be  dis- 
solved, but  an  election  may  be  held  on  any  subsequent  day,  thirty  days'  notice  thereof 
having  been  given  in  a  newspaper  printed  and  in  general  circulation  in  the  county 
where  the  company  is  located.      (March  21,  1851,  49  v.  41.) 

§  3821-75.  Sec.  17.  BANKING:  COMPANIES  SHALL  NOT  CIRCULATE  EVI- 
DENCES OF  DEBT  AS  MONEY.  —  No  banking  company,  either  heretofore  or  here- 
after organized  under  this  law,  shall  at  any  time  issue,  or  have  in  circulation,  any 
note,  draft,  bill  of  exchange,  acceptance,  certificate  of  deposit,  or  any  other  evidence 
of  debt,  which,  from  its  character,  form,  or  appearance,  shall  be  calculated  or  intended 
to  circulate  as  money;  and  every  violation  of  this  section,  by  any  officer  or  member 
of  a  banking  company,  shall  be  deemed  and  judged  a  misdemeanor,  punished  by  fine 
or  imprisonment,  or  both,  in  the  discretion  of  the  court  having  cognizance  thereof,  as 
now  provided  by  law.  (As  amended  and  took  effect  April  24,  1879,  76  v.  72;  March 
21,   1851,  49  v.  41.) 

§  3821-76.  Sec.  19.  WHEN  PROHIBITED  FROM  MAKING  LOANS;  WHEN 
BONDS  EQUIVALENT  TO  LAWFUL  MONEY.  —  Each  banking  company  shall  at  all 
times  have  on  hand  of  lawful  money  of  the  United  States,  an  amount  equal  to  at 
least  twenty  per  centum  of  its  deposits;  and  whenever  the  lawful  money  of  any 
company  shall  fall  below  twenty  per  cent,  of  its  deposits,  such  company  shall  not 
make  any  new  loan  or  discount,  otherwise  than  by  discounting  or  purchasing  bills 
of  exchange  payable  at  sight,  nor  make  any  dividends  of  its  profits,  until  the  required 
proportion  of  its  deposits,  and  its  lawful  money  of  the  United  States,  shall  be  restored; 
and  for  such  purpose  money  actually  invested  in  bonds  of  the  United  States  shall 
be  deemed  equivalent  to  lawful  money  of  the  United  States.  (As  amended  and  took 
effect  April  24,  1879,  76  v.  73;  March  21,   1851,  49  v.  41.) 

§  3821-77.  Sec.  20.  NOT  LIABLE  FOR  MORE  THAN  AMOUNT  OF  CAPITAL 
STOCK;  EXCEPTIONS. —No  banking  company  herein  authoiized  shall  at  any  time 
be  indebted,  or  in  any  way  liable,  to  an  amount  exceeding  the  amount  of  the  capital 
stock  at  such  time  actually  paid  in  and  remaining  as  capital  stock,  undiminished  by 
losses  or  otherwise,  except  on  the  following  accounts: 

First  —  On  account  of  moneys  deposited  with  or  collected  by  such  company. 

Second —  On  account  of  bills  of  exchange  or  drafts  drawn  against  money  actually 
paid  on  deposit  to  the  credit  of  or  due  to  such  company. 

Third  —  Liabilities  of  the  stockholders  on  account  of  moneys  paid  in  as  capital 
stock,  and  dividends  thereon,  and  such  stockholders  shall  be  liable,  over  and  above 
the  stock  by  him  or  her  owned,  and  any  amount  unpaid  thereon,  to  a  further  sum  at 
least  equal  in  amount  to  such  stock.  (As  amended  and  took  effect  April  24,  1879, 
76  v.  73;  49  v.  41.) 


Banks  and  Banking.  541 

Free   Banking,    §§    3821-78  3821-82. 


§  3821-78.  Sec.  22.  CAPITAL  STOCK  NOT  TO  BE  WITHDRAWN.  —  No  bank- 
ing company  shall,  during  the  time  it  shall  continue  its  operations  as  a  bank,  with- 
draw or  permit  to  be  withdrawn,  either  in  form  of  dividends,  loans  to  stockholders, 
for  a  longer  period  of  time  than  six  months,  or  in  any  other  manner,  any  portion  of 
its  capital  stock,  and  if  losses  shall  at  any  time  have  been  sustained  by  any  banking 
company,  equal  to,  or  exceeding  its  undivided  profits  then  on  hand,  no  dividends  shall 
be  made,  and  no  dividend  shall  ever  be  made  by  any  banking  company,  while  it  shall 
continue  its  banking  operations,  to  an  amount  greater  than  its  net  profits  then  on 
hand,  deducting  therefrom  its  losses,  bad  and  suspended  debts,  and  all  debts  due  to 
a  banking  company,  on  which  interest  is  past  due  and  unpaid  for  a  period  of  six 
months,  unless  the  same  shall  be  we'll  secured,  and  shall  be  in  process  of  collection, 
shall  be  considered  bad  or  suspended  debts  within  the  meaning  of  this  act.  (March 
21,   1851,  49  v.  41.) 

§  3821-79.  Sec.  23.  HOW  DECLARE  DIVIDEND;  SHALL  REPORT  SEMI- 
ANNUALLY TO  AUDITOR  OF  STATE.  —  The  directors  of  each  banking  company 
shall,  semi-annually,  declare  a  dividend  of  so  much  of  the  net  profits  of  the  company 
as  they  shall  judge  expedient;  but  such  company  shall,  before  the  declaration  of  a 
dividend,  carry  one-tenth  part  of  its  net  profit  of  the  preceding  half  year  to  its  sur- 
plus fund,  until  the  same  shall  amount  to  twenty  per  centum  of  its  capital  stock; 
every  banking  company  shall  make  to  the  auditor  of  state  a  report,  according  to  the 
form  which  may  be  prescribed  by  him,  verified  by  the  oath  of  the  president  or  cashier 
of  such  company,  which  report  shall  exhibit  in  detail,  and  under  appropriate  heads 
such  as  he  shall  require,  the  resources  and  liabilities  of  the  company  before  the  com- 
mencement of  business  in  the  morning  of  the  first  Monday  of  the  months  of  January 
and  July  of  each  year,  and  shall  transmit  the  same  to  the  auditor  of  state  within  ten 
days  thereafter.  (As  amended  and  took  effect  April  24,  1879,  76  v.  73;  March  21, 
1851,  49  v.  41.) 

§  3821-80.  Sec.  25.  LIABILITIES  SPECIFIED;  PROVISO.  —  The  total  lia- 
bilities of  any  person,  company,  corporation,  or  firm,  for  money  borrowed,  including 
in  the  liabilities  of  the  several  members  thereof  to  any  banking  company  herein 
authorized,  shall  at  no  time  exceed  one-tenth  part  of  the  amount  of  the  capital  stock 
of  such  company  actually  paid  in*  provided,  that  the  discount  of  bona  fide  bills  of 
exchange  drawn  against  actually  existing  values,  and  the  discount  of  commercial  or 
business  paper  actually  owned  by  the  person  or  persons,  corporation,  or  firm  negotiat- 
ing the  same,  shall  not  be  considered  money  borrowed.  (As  amended  and  took  effect 
April  24,  1879,  76  v.  74;  March  21,  1851,  49  v.  41.) 

§  3821-81.  Sec.  26.  UNCURRENT  NOTES  NOT  TO  BE  PAID  OUT.  —  No  bank- 
ing company  shall,  at  any  time,  pay  out  on  loans  or  discounts,  or  in  purchasing  of 
drafts  or  bills  of  exchange,  cr  in  payment  of  depositors;  nor  shall  it  in  any  other 
mode,  put  in  circulation  the  notes  of  any  bank  or  banking  company,  either  in  or  out 
of  this  state,  which  notes  shall  not  at  that  time  be  receivable  at  par,  in  payment  of 
debts,  and  by  the  company  so  paying  out  or  circulating  such  notes;  nor  shall  it  know- 
ingly pay  out  or  put  in  circulation  any  notes,  issued  by  any  bank  or  banking  com- 
pany, which,  at  the  time  of  such  paying  out  or  putting  in  circulation,  is  not  redeeming 
its  notes  in  gold  and  silver,  nor  any  notes  issued  by  any  bank  out  of  this  state,  of  a 
denomination  less  than  five  dollars.     (March  21,  1851,  49  v.  41.) 

§  3821-82.  Sec.  27.  NOTES,  ETC.,  TO  WHOM  PAYABLE.  —  All  notes,  bills, 
and  other  evidences  of  debt,  excepting  bills  of  exchange,  discounted  by  any  banking 
company,  shall  be  made,  by  the  terms  thereof,  or  by  special  indorsement,  payable 
solely  to  such  company;  and  no  such  evidence  of  debt  shall  be  assignable,  except  for 
collection,  or  for  the  following  purposes:    First  —  To  pay  and  redeem  the  circulating 


542  Private  Corporations  in  Ohio. 

Free   Banking,    §§   3821-83-3821-86. 

notes  of  such  company;  Second  —  To  pay  other  liabilities  of  the  said  company;  and 
after  sucn  liabilities  shall  have  been  discharged,  Third  —  To  divide  among  the  share- 
holders on  their  stock.     (March  21,  1851,  49  v.  41.) 

§  3821-83.  Sec.  28.  WHAT  TRANSACTIONS  ARE  VOID.  —  All  transfers  of 
notes,  bonds,  bills  of  exchange,  and  other  evidences  of  debt,  owing  to  any  banking 
company,  or  of  deposits  to  its  credit;  all  assignments  or  mortgages,  or  other  securities 
on  real  estate,  or  of  judgments  or  decrees  in  its  favor;  all  deposits  of  money,  bullion, 
or  other  valuable  thing  for  its  use,  or  for  the  use  of  any  of  its  stockholders  or  cred- 
itors; all  payments  of  money  to  either,  made  after  the  commission  of  an  act  of 
insolvency,  or  in  contemplation  thereof,  with  a  view  to  prevent  the  application  of  its 
assets  in  the  manner  prescribed  by  thir  act,  or  with  a  view  to  the  preference  of  one 
creditor  to  another,  except  in  payment  of  its  circulating  notes,  shall  be  held  utterly 
null  and  void.      (March  21,  1851,  49  v.  41.) 

§  3821-84.  Sec.  29.  PENALTY  FOR  VIOLATION  OF  THE  PROVISIONS  OF 
THIS  ACT.  —  If  the  directors  of  any  banking  company  which  shall  have  availed 
itself  of  any  of  the  privileges  granted  by  this  act,  shall  knowingly  violate,  or  know- 
ingly permit  any  of  the  officers,  agents,  or  servants  of  such  company,  to  violate  any 
of  the  provisions  of  this  act,  all  the  rights,  privileges,  and  franchises  of  said  company, 
derived  from  this  act,  shall  thereby  be  forfeited;  such  violation  shall,  however,  be 
determined  and  adjudged  by  a  court  of  competent  jurisdiction,  agreeably  to  the  laws 
of  this  state,  ind  the  practice  of  such  court,  before  the  corporation  shall  be  declared 
dissolved;  and  in  case  of  such  violation,  every  director  who  participated  in  or  assented 
to  the  same,  shall  be  held  liable,  in  his  personal  and  individual  capacity,  for  all  dam- 
ages which  the  company,  its  shareholders,  or  any  other  persons,  body  politic  or  cor- 
porate, shall  have  sustained  in  consequence  of  such  violation.  (March  21,  1851,  49 
v.  41.) 

§  3821-85.  Sec.  30.  RELATING  TO  EMBEZZLEMENT,  ETC.,  BY  BANK  OFFI- 
CERS, EMPLOYEES,  AND  AGENTS;  PENALTY.  —  Every  president,  director,  cash- 
ier, teller,  clerk,  or  agent  of  any  banking  company,  who  shall  embezzle,  abstract,  or 
willfully  misapply  any  of  the  moneys,  funds,  or  credits  of  such  company,  or  shall, 
without  authority  from  the  directors,  issue  or  put  forth  any  certificate  of  deposit, 
draw  any  order  or  bill  of  exchange,  make  any  acceptance,  assign  any  notes,  bonds, 
drafts,  or  bills  of  exchange,  mortgage,  judgment  or  decree,  or  shall  make  any  false 
entry  in  any  book,  report,  or  statement  of  the  company,  with  intent  in  either  case  to 
injure  or  defraud  the  company,  or  any  other  company,  body  politic  or  corporate,  or 
any  individual  person,  or  to  deceive  any  officer  of  the  company,  or  any  agent 
appointed  to  inspect  the  affairs  of  any  banking  company  in  this  state,  shall  be  guilty 
of  an  offense,  and,  upon  conviction  thereof,  shall  be  confined  in  the  penitentiary,  at 
hard  labor,  not  less  than  one  year,  nor  more  than  ten  years.  (As  amended  and  took 
effect  April  24,   1879,  76  v.  74;    March  21,   1851,  49  v.  41.) 

§  3821-86.  Sec.  38.  NO  DIVIDENDS  TO  BE  MADE  WHEN  CAPITAL  STOCK 
IS  DIMINISHED.  —  If  the  original  capital  stock  of  any  such  banking  companies 
shall  in  any  manner  be  diminished,  or  any  portion  thereof  be  withdrawn  for  any  pur- 
pose whatever,  while  any  debts  or  demands  against  such  company  remain  unsatisfied, 
no  dividends  shall  thereafter  be  made  on  the  shares  of  the  capital  stock  of  such  com- 
pany, until  the  original  amount  of  the  capital  stock  shall  be  restored,  either  by  con- 
tribution of  the  shareholders,  or  out  of  the  profits  of  the  business  of  such  company; 
and  in  case  any  dividend  shall  be  made  while  the  capital  stock  shall  remain  so 
diminished  or  withdrawn,  it  shall  be  the  duty  of  any  court,  having  competent  juris- 
diction, to  make  the  necessary  orders  and  decrees  for  closing  the  affairs  of  such  com- 
pany, and  dividing  its  effects  among  its  creditors  and  shareholders,  as  in  this  act 
provided.     (March  21,  1851,  49  v.  41.) 


Banks  and  Banking.  543 


Free   Banking  —  Unknown   Depositors,    §§    3821-87  3821-90. 

§  3821-87.  Sec.  40.  STOCKHOLDERS  SHALL  NOT  BE  LIABLE  TO  BANK 
BEYOND  TWO-FIFTHS  OF  CAPITAL  STOCK. — The  stockholders  collectively,  of 
any  banking  company,  shall  at  no  time  be  liable  to  such  company,  either  as  principal 
debtors  or  sureties,  or  both,  to  an  amount  greater  than  two-fifths  of  the  amount  of 
capital  s.ock  actually  paid  in  and  remaining  undiminished  by  losses  or  otherwise, 
nor  shall  the  directors  be  so  liable  by  the  by-laws  of  such  company,  adopted  by  its 
stockholders  to  regulate  such  liabilities;  and  it  shall  be  the  duty  of  the  auditor, 
treasurer,  and  secretary  of  state,  or  a  majority  of  them,  as  often  as  once  in  each  year, 
to  appoint  some  suitable  person  in  the  vicinity  of  each  banking  company,  who  shall 
not  be  a  stockholder  in  any  bank  of  this  state,  who  shall  have  power  to  make  a 
thorough  examination  into  all  the  affairs  of  the  bank  which  he  may  be  appointed  to 
examine;  and,  in  so  doing,  to  examine  any  of  the  officers  and  agents  of  such  bank,  or. 
oath;  and  such  agent  shall  make  a  detailed  report  of  the  condition  of  such  bank  to 
the  auditor  of  state;  and  the  banking  companies  herein  authorized  shall  be  subject  to 
any  other  visitorial  powers  authorized  by  law;  and  every  agent  appointed,  as  in  this 
section  provided,  shall  receive  for  his  services  at  the  rate  of  two  dollars  for  each  day 
by  him  employed  in  such  examination,  and  two  dollars  for  every  twenty -five  miles  he 
shall  necessarily  travel,  in  the  performance  of  his  duty,  which  shall  be  paid  by  the 
banking  company  by  him  examined.     (March  21,    1851,  49  v.  41.) 

§  3821-88.  Sec.  1.  BANKING  COMPANIES  AUTHORIZED  TO  DEMAND 
RELINQUISHMENT  OF  SECURITIES;  REDEMPTION  OF  CIRCULATION  NOT 
EXCUSED  BEFORE  1880. — All  independent  and  free  banking  companies,  and  the 
State  Bank  of  Ohio  and  its  branches,  and  their  assignees  and  successors,  respectively, 
organized  under  the  provisions  of  an  act  entitled  "  an  act  to  incorporate  the  State 
Bank  of  Ohio  and  other  banking  companies,"  and  an  act  entitled  "  an  act  to  authorize 
free  banking,"  and  having  complied  with  the  provisions  for  relinquishing  business 
required  by  the  above  recited  acts,  and  having  redeemed  at  least  ninety-five  per  cent. 
of  their  authorized  circulation,  may,  on  or  after  the  first  day  of  January,  eighteen 
hundred  and  eighty  (1880),  demand  of  the  auditor  of  state,  and  said  auditor  is  hereby 
authorized  and  required  to  relinquish  to  such  companies  on  such  demand  any  bonds 
or  securities  he  may  hold  as  security  for  the  redemption  of  any  outstanding  circulat- 
ing notes  of  such  companies,  and  thereafter  the  affairs  of  such  companies  shall  be 
considered  closed:  provided,  that  nothing  herein  shall  be  so  construed  as  to  excuse 
the  redemption  of  all  of  said  circulation  that  may  be  presented  for  redemption  prior 
to  the  first  day  of  January,  1880.     (March  15,   1875,  72  v.  54.) 

UNKNOWN  DEPOSITORS. 
§  3821-89.  Sec.  1.  ANNUAL  REPORT  TO  PROBATE  JUDGE  OF  UNKNOWN 
BANKING  DEPOSITORS,  ETC.  —  Every  incorporated  bank  or  banking  association 
located  in  this  state,  whether  now  or  hereafter  incorporated  or  organized  under  the 
laws  of  this  state,  or  of  the  United  States,  and  every  company,  association,  or  person, 
who  shall  in  this  state,  keep  an  office  or  other  place  of  business,  and  engage  in  the 
business  of  lending  money,  receiving  money  on  deposit,  buying  and  selling  bullion, 
or  bills  of  exchange,  notes,  bonds,  stocks,  or  other  evidence  of  indebtedness,  with  a 
view  to  profit,  shall,  annually,  between  the  first  and  second  Mondays  of  January, 
make  out  and  return  to  the  probate  judge  of  the  county  in  which  said  bank,  office,  or 
other  place  of  business  is  located,  under  oath  of  the  owner,  or  principal  oflv-er  or 
manager  thereof,  a  true  and  complete  statement,  setting  forth,  in  alphabetical  ord^r, 
the  names  of  all  unknown  depositors  with  said  bank,  company,  association  or  person, 
together  with  the  amount  due  to  every  such  unknown  depositor,  including  accrued 
interest  and  dividends.     (March  6,  1888,  85  v.  65.) 

§  3821-90.     Sec.   2.     WHO  ARE  TO  BE  DEEMED  "  UNKNOWN  DEPOSITORS." 
—  Every  corporation,  company,  association,  or  person,  in  whose  name  a  deposit  of  any 


544  Private  Corporations  in  Ohio. 


Unknown  Depositors,   §§  3821-91-3821-94. 


money,  bullion,  bill  of  exchange,  note,  stock,  bond  or  other  evidence  of  indebtedness 
has  been  made  with  any  bank,  company,  association,  or  person,  designated  in  the  first 
section  (§  3821-89)  hereof,  shall  be  deemed  an  unknown  depositor  within  the  meaning 
of  this  act,  when  the  date  of  the  last  bona  fide  item  of  debt  or  credit  to  the  account  of 
such  depositor  on  the  books  of  said  bank  shall  be  more  than  seven  years  prior  to  the 
time  fixed  by  the  first  section  (§  3821-89)  hereof  for  the  filing  of  said  statement  with 
the  probate  court  of  the  proper  county;  provided,  that  in  fixing  the  date  of  the  last 
item  of  credit  to  the  account  of  any  depositor,  reference  shall  not  be  had  to  any  item 
of  credit  for  interest  or  dividends  accrued  on  such  deposit,  unless  the  same  shall  be 
entered  upon  a  pass  book  presented  by  and  returned  to  the  depositor,  or  unless  the 
depositor  be  a  minor.     (March  6,   1888,  85  v.  65.) 

§  3821-91.  Sec.  3.  RECORD  OF  UNCLAIMED  DEPOSITS  TO  BE  KEPT  BY 
PROBATE  JUDGE. —  The  probate  judge  cf  each  county  shall,  on  or  before  the  third 
Monday  of  January,  annually,  cause  to  be  recorded  in  a  book  kept  for  that  purpose, 

entitled  "  record  of  unclaimed  deposits  in  banks,  county,  Ohio,"  and  which 

shall  at  all  times  be  open  to  public  inspection,  all  statements  returned  to  him  for  the 
preceding  year  under  the  provisions  of  this  act,  and  said  probate  judge  shall  desig- 
nate in  said  book  at  the  head  of  each  statement  recorded  therein,  the  name  of  the 
bank,  company,  association  or  person  by  whom  said  statement  is  returned.  The 
original  statement  returned  to  said  probate  judge  shall  be  kept  on  file  and  preserved 
in  his  office.     (March  6,   1888,  85  v.  65.) 

§   3821-92.     Sec.  4.     HIS  FEES  FOR  MAKING  SUCH  RECORD;    HOW  PAID.  — 

There  shall  be  allowed  and  paid  to  the  probate  judge  of  each  county,  the  sum  of  eight 
cents  per  hundred  words,  for  all  statements  recorded  by  said  probate  judge  under  the 
provisions  of  this  act;  provided,  that  the  cost  of  recording  the  names  and  amounts 
due  to  any  depositors,  by  whom  deposits  shall  be  made  as  aforesaid  after  the  passage 
of  this  act,  and  who  shall  thereafter  become  unknown  within  the  meaning  of  this  act, 
shall  be  paid  to  said  probate  judge  by  the  bank,  company,  association,  or  person, 
designated  in  section  one  (§  3821-89)  hereof,  at  the  time  such  annual  statement  is 
returned,  and  shall  be  by  such  bank,  company,  association,  or  person,  deducted  from 
the  amount  due  such  unknown  depositor.      (March  6,  1888,  85  v.  65.) 

§  3821-93.  Sec.  5.  UNKNOWN  DEPOSITS  TO  BE  PAID  INTO  COUNTY 
TREASURY,  WHEN;  SUCH  PAYMENT  RELEASES  THE  BANX'S  LIABILITY.— 
That  whenever  any  corporation,  company,  association,  or  person,  in  whose  name  any 
deposit  is  hereafter  made  with  any  bank,  company,  association,  or  person  designated 
in  section  one  (§  3821-89)  hereof  shall  become  unknown  within  the  definition  and 
meaning  of  this  act,  the  amount  due  to  such  depositor  shall  be  by  such  bank,  com- 
pany, association  or  person,  paid  to  the  treasurer  of  the  county  in  which  such  bank, 
company  association  is  located,  and  shall  be  by  said  treasurer  credited  to  the  general 
fund  of  said  county;  provided,  that  such  deposit  shall  not  be  paid  to  said  treasurer 
until  after  the  expiration  of  eight  years  from  the  date  of  the  first  statement,  in  which 
the  name  and  amount  due  such  unknown  depositor  shall  be  returned  to  the  probate 
judge  as  hereinbefore  provided;  and  the  bank,  corporation,  association  or  person  so 
making  such  payment  shall  thereby  be  released  from  any  claim,  demand  or  liability 
to  pay  the  same  or  any  part  thereof  to  the  depositor,  his  administrators,  executors  or 
assign(s).     (March  6,   1888,  85  v.   65.) 

§  3821-94.  Sec.  6.  HOW  AND  BY  WHOM  SUCH  DEPOSITS  MAY  BE 
RECLAIMED.  —  If  at  any  time  thereafter  proof  is  made  to  the  satisfaction  of  the  pro- 
bate court,  or  the  county  commissioners,  of  the  right  of  any  person  or  persons,  by 
inheritance  or  otherwise,  to  said  funds  or  any  part  of  the  same,  or  paid  to  the  treas- 
urer under  the  provisions  of  the  preceding  section,  said  court  or  commissioners  shall 


Banks  and  Banking.  545 


Unknown  Depositors,  SS  3821-95-3821-97. 


certify  the  same  to  the  county  auditor,  who  shall  thereupon  draw  a  warrant  on  the 
treasurer  of  the  county  in  favor  of  such  claimant  or  claimants,  or  the  legal  representa- 
tive or  duly  authorized  agent  of  such  claimant  or  claimants  for  the  sum  so  paid  into 
the  treasury;  provided,  if  any  such  person  or  persons  become  aggrieved  by  the  deci- 
sion, finding  or  action  of  the  probate  court  or  the  county  commissioners,  such  person  or 
persons  may  appeal  to  the  court  of  common  pleas,  by  virtue  of  the  provisions  of  the 
Revised  Statutes  of  1883,  sections  eight  hundred  and  ninety-six,  six  thousand  four 
hundred  and  seven,  six  thousand  four  hundred  and  eight,  six  thousand  four  hundred 
and  nine,  and  six  thousand  four  hundred  and  ten,  respectively,  and  all  acts  amenda- 
tory and  supplementary  thereto,  and  said  sections  shall,  so  far  as  applicable,  govern 
proceedings  had  under  the  provisions  of  this  act.     (March  6,  1888,  85  v.  65.) 

§  3821-95.  Sec.  7.  PENALTY  FOR  BANK'S  REFUSAL  OR  NEGLECT  TO  COM- 
PLY WITH  THIS  ACT.  —  That  every  bank,  company,  association,  or  person  desig- 
nated in  section  one  (§  3821-89)  of  this  act,  who  shall  neglect  or  refuse  to  comply  with 
the  provisions  of  this  act,  shall  forfeit  and  pay  five  hundred  dollars  for  every  such 
offense.     (March  6,   1888,  85  v.  65.) 

§  3821-96.     Sec.     8.     RECOVERY   AND   DISPOSITION   OF   PENALTIES.  —  The 

penalty  imposed  by  this  act  shall  be  recovered  by  action  in  the  name  of  the  state  of 
Ohio,  before  any  court  of  competent  jurisdiction;  and  all  penalties  incurred  under  this 
act,  when  collected,  shall  be  paid  to  the  treasurer  of  the  county  in  which  the  judg- 
ment is  recovered  for  the  same,  and  one-half  thereof  shall  be  by  said  treasurer  cred- 
ited to  the  general  fund  of  said  county,  and  one-half  thereof  shall  be  by  him  held 
for  the  use  of  the  state  of  Ohio.     (March  6,   1888,  85  v.   65.) 

§  3821-97.  Sec.  9.  WHO  MAY  SUE;  DUTY  OF  PROSECUTING  ATTORNEY. 
—  The  action  provided  by  the  eighth  section  (§  3821-96)  hereof,  for  the  recovery  of 
penalties  incurred  under  the  provisions  of  this  act,  may  be  instituted  and  prosecuted 
to  judgment  by  any  citizen  of  the  state  of  Ohio;  and  it  is  hereby  made  the  duty  of 
the  prosecuting  attorney  of  such  county  to  institute  and  prosecute  such  action  against 
every  bank,  company,  association  or  person  designated  in  the  first  section  (§  3821-89) 
hereof,  and  located  in  said  county,  who  shall  fail  to  comply  with  the  provisions  of 
this  act.     (March  6,   1888,  85  v.   65.) 


PART  XXII. 

POWERS  OF  CERTAIN  CORPORATIONS. 

§  3822.  Avenue  companies  in  certain  counties. 

§  3823.  Other  turnpike  companies. 

§  3824.  When  company  may  take  tools. 

§  3825.  When  consent  of  authorities  necessary. 

§  3S26.  Authorities  may  surrender  roads  to  company. 

§  3826a.  Power  to  condemn  avenues  belonging  to  avenue  companies  within  corporate  lirrits. 

§  3826b.  Issue  and  sale  of  bonds. 

§  3S27.  Officers  of  board  of  trade,  chamber  of  commerce,  etc. 

§  3828.  May  appoint  committees  of  arbitration. 

§  3829.  May  require  bonds  from  officers. 

§  3830.  May  appoint  inspectors,  etc. 

§  3830a.  Inspectors,  gaugers,  etc.,  may  appoint  deputies. 

§  3831.  Other  like  associations  may  have  benefit  of  these  provisions. 

§  3832.  May  purchase  or  lease  grounds  and  erect  buildings;  issuing  of  bonds. 

Building  akd  Loan  Associations. 

§3836-1.     Building  and  loan  associations;  domestic;  foreign. 
§3836-2.     Capital;  when  may  begin  business.     Directors  terms. 

§  3836-3.  Deposits.  Stock.  Dues,  fines,  interest,  and  premiums.  Withdrawals.  Cancella- 
tions. Stock  of  minors.  Real  estate  and  personal  property.  Borrowing  money. 
Loans.  Cancellation  of  "loans.  Reserve  fund.  Dividends.  Increase  or  decrease 
of  capital  or  face  value  of  shares.  Dissolution.  Constitution  and  by-laws. 
General  powers. 
§3836-4.  Deposit  in  bank  and  checks  thereon;  treasurer's  bank  book;  expenditures.  Bond* 
of  officers;  directors  ineligible  and  personally  liable. 

§  3836-5.     Fund  for  contingent  losses. 

§3836-6.     Earnings;  application  of.     Dividends.     Losses  assessed  proportionately. 

§  3836-7.     Undrawn  shares  listed  as  ci  edits. 

§  3836-8.     Bureau  of  building  and  loan  associations. 

§  3836-9.     Inspector ;   compensation ;  bond ;  oath.     Deputies ;  clerks. 

§  3836-10.  Offices  and  expense. 

§  3836-11.  Inspector  must  enforce  laws. 

•§  3836-12.  Laws  governing;  authority  procured  by  deposit;  by  filing  copy  of  charter,  and  by 
providing  for  summons  in  actions. 

§  3836-13.  Certificate  of  authority  to  do  business. 

§  3836-14.  Collection  of  interest  and  exchange  of  securities. 

§  3836-15.  Securities  liable  for  claims. 

§3836-16.  To  be  filed  annually;  copy  of  constitution  and  by-laws. 

§3836-17.  Form:  oath,  and  attastation;  filing;   posting  abstract. 

§3836-18.  When  to  examine;    expense   thereof.     Revocation  of  charter  for  illegal  practices. 
Dissolution  if  condition  unsound. 

§3836-19.  Examiners;  power  of. 

§  3S36-20.  Inspector  may  publish  lcsult. 

§  3836-21.  May  cancel  authority  of  foreign  associations. 

§  3836-22.  Fees  to  be  paid  to  inspector. 

§  3836-23.  Securities  to  be  deposited  in  state  treasury. 

§  3830-24.  Penalties  against  associations. 

[546] 


Powers  of  Certain  Corporations.  547 


§  383(5-  2.").  Penalties  and  civil  liability  of  officers,  agents,  and  others;   forbidden  acts. 

§ 383G-26.  Annual  reporl  dt  inspector. 

§  3S36-27.  Dissolution  or  consolidation  of  building  and  loan  associations. 

Other  Companies. 

§3837.  Co-operative  trade  associations. 

§  3838.  Common   earlier  companies. 

§  Ms:;:1.  Any  company  may  subscribe  to  its  stock. 

§  3840.  Dock  cempanies. 

§3841.  F-levator  companies. 

§3842.  When  railroad  company  may  take  stock  in  such  company. 

§  3843.  Farm  laborers"  associations. 

§  3844.  What  investment  it  may  make. 

§  3845.  Must  report  to  attorney -general. 

§  3840.  Consolidation  of  two  associations. 

§  3847.  Attorney-general  to  report  annually. 

§  3848.  May  maintain  libraries,  etc. 

§  384^1.  Ferry  companies. 

§  3850.  Firemen's  relief  associations. 

§  3851.  Certain  powers  of  such  associations. 

§  3852.  Their  power  to  acquire  ami  dispose  of  property. 

§  3853.  Fishery  companies. 

§  3854.  Companies  for  the  improvement  of  navigable  streams. 

§  3855.  Manufacturing  companies  must  keep  certain  accounts. 

§  3850.  May  extend  their  operations. 

§  3857.  Company  to  manufacture  iron  may  make  steel. 

§  3858.  Market-house  companies. 

§  3859.  Powers  of  such  companies. 

§  3800.  May  keep  streets  unobstructed. 

§  3801.  May  construct  sewers. 

§  3802.  Powers  of  mining  and  manufacturing  corporations. 

§  3803.  May  subscribe  for  stock  in  transportation  companies. 

§  3804.  Certain  companies  may  consolidate. 

§  3805.  Certain  conveyances  must  be  made. 

§  3800.  May  build  a  railroad. 

§  3807.  Mining  companies  may  acquire  additional  powers. 

§  3808.  Museum,  park,  pond,  and  rink  companies. 

§  3809.  May  provide  for  reversion  of  stock,  etc. 

§  3870.  Penalties  for  trespasses  upon  property  of  such  companies. 

§  3871.  Sewerage  companies. 

§  3872.  When  municipality  must  buy  out  company. 

§  3873.  Municipality  may  contract  with  company. 

§  3874.  Company  may  prescribe  rates. 

§  3875.  Powers  of  municipalities  not  limited. 

§  3870.  Stock-yard  companies. 

§  3877.  Transporation  companies. 

§  3878.  Companies  for  transportation  of  natural  gas,  oil.  or  Mater:  right  of  eminent  domain. 

How  right  acquired.     Eight  to  public  way;  how  acquired.     Filling  of  excavations. 

Common  canier. 

§  3879.  May  hold  certain  property. 

§  3880.  Further  powers  of  such  company. 

§  3881.  Homes  for  aged  and  indigent  women. 
§  3881-1.     Contract  for  care  and   maintenance  of  indigent   deaf  and  dumb.     State  board   of 

charities  may  order  removal  of  such  indigent  or  infirm  persons  to  home. 

§  3882.  Wrecking  companies. 


548  Private  Corporations  in  Ohio. 


Avenue  and  Turnpike  Companies,    §§   3822-3824. 


§  3883.        Fruit  companies. 

§  3884.         Companies  for  protecting  and  preserving  dead  bodies. 

§  3884a.       Authorizing  certain  corporations  to  purchase  or  lease  real  estate. 

§3884-1.     Cincinnati  orphan  asylum;  increase  in  number  of  managers;  same  to  be  classified; 

annual  election ;  power  to  require  increased  or  diminished  number  of  managers. 
§3884-2.     Membership;  eligibility  to  office;  life  and  honorary  memberships. 
§  3884-3.     Rights  to  own  property ;  to  receive  and  administer  in  other  states. 
§  3884-4.     Placing  of  children  in  such  asylum. 
§  3S84-5.     Agreement  between  the  trustees  and  county  commissioners  for  the  administration 

of  certain  trusts. 
§  3884-6.     Adoption  and  binding  out  of   orphan  children. 
§4211-19.  Driving  of  cattle  from  certain  states  forbidden  during  certain  months;   conveyance 

by  railroad  forbidden,  except. 
§  4211-20.  Unloading  of  certain  cattle  in  certain  months  forbidden,  except. 
§  4211-21.  Penalty. 

§4211-22.  Duty  of  transportation  companies;  penalty  for  violation  ot  such  duty. 
§  4211-23.  Prosecution  for  offenses  hereunder. 

§  4495.         Commission  may  require  any  bridge  or  culvert  to  be  enlarged. 
§  4748.         Obstruction  of  road  by  railroad  agents. 
§  4749.         Company  liable  for  fines  against  employees. 
§  4939.         Joint  county  and  railroad  bridges. 

§  3822.  AVENUE  COMPANIES  IN  CERTAIN  COUNTIES.  —  Companies  maybe 
incorporated  in  any  county  having  not  less  than  one  hundred  thousand  inhabitants, 
for  the  purpose  of  constructing  avenues  in  the  counties  where  they  are  organized;] 
such  avenues  shall  be  opened  not  more  than  one  hundred  feet  in  width,  at  least  sixty 
feet  of  which  shall  be  cleared  of  all  obstructions,  and  not  less  than  thirty  feet  shall 
be  made  an  artificial  road  composed  of  stone,  gravel,  or  other  suitable  material,  well 
compacted  together  in  such  manner  as  to  secure  a  firm  and  substantial  road,  and  shall 
not  be  less  than  five  miles  in  length;  and  they  may  enter  upon  and  appropriate  any 
lands  for  the  use  of  such  avenue  after  having  obtained  the  written  consent  of  a 
majority  of  the  persons  owning  the  lands  sought  to  be  appropriated,  which  consent 
shall  be  entered  upon  their  records.     (April  3,  1856,  53  v.  47,  §  12.) 

§  3823.  OTHER  TURNPIKE  COMPANIES.  —  A  corporation  created  for  the  pur- 
pose of  constructing  and  maintaining  a  free  public  avenue  shall  construct  and  main- 
tain its  avenue  not  less  than  fifty  nor  more  than  one  hundred  feet  wide,  of  such 
materials  as  it  may  deem  proper,  and  shall  not  charge  toll  of  any  kind  for  the  use  of 
its  avenue  by  the  public,  but  may  make  and  enforce  all  necessary  and  reasonable 
regulations  for  the  use  and  preservation  of  the  same;  and  if  in  laying  out  such 
avenue,  it  be  necessary  to  enter  upon  and  appropriate  any  lands  or  premises,  the  pro- 
ceedings therefor  shall  be  instituted  and  carried  on  in  all  respects  as  is  provided  by 
law  for  the  appropriation  of  private  property  by  municipal  corporations.  (April  16, 
1879,  76  v.  62,  §§  1,  2.) 

Montgomery   county. 
See  §  3536-1  et  seq. 

*  S824.  WHEN  COMPANY  MAY  TAKE  TOLLS.  —When  any  such  company  puts 
under  contract  five  consecutive  miles  of  any  such  avenue,  and  completes  not  less  than 
two  consecutive  miles  thereof  to  the  acceptance  of  the  county  commissioners,  or  when 
the  whole  of  any  such  avenue  is  completed  to  such  acceptance  by  any  oiich  company, 
the  company  may  erect  a  toll-gate  thereon  for  the  collection  of  such  tolls  as  turnpike 
and  plankroad  companies  are  allowed  by  law  to  collect;  and  when  a  company  com- 
pletes to  such  acceptance  five  consecutive  miles  of  an  avenue,  it  may  erect  thereon 


Powers  of  Certain  Corporations.  549 

Avenue   and   Turnpike  Companies,    §§    3825-3826 b. 

two  toll-gates,  at  such  places  as  in  the  opinion  of  the  directors  will  best  subserve  the 
interest  of  the  company,  for  the  collection  of  tolls  as  above  provided.  (April  3,  1856, 
53  v.  46,  §  3.) 

§  3825.  WHEN  CONSENT  OF  AUTHORITIES  NECESSARY.  —  When  in  laying 
out  any  such  avenue  it  becomes  necessary  to  run  through  or  along  the  line  of  any 
village,  the  board  of  directors  of  the  avenue  company  shall  obtain  the  consent  of  the 
council  of  such  village  to  the  laying  out  of  such  avenue  through  or  along  the  terri- 
tory over  which  they  have  supervision  or  control.     (April  3,  1856,  53  v.  46,  §  4.) 

§  3826.  AUTHORITIES  MAY  SURRENDER  ROADS  TO  COMPANY.  —  If ,  on 
application  being  made  to  the  council  of  a  village,  they  are  of  opinion  that  the  public 
good  demands  the  laying  out  of  such  avenue,  they  may  give  their  written  consent  to 
the  laying  out  and  construction  of  the  same,  which  shall  have  the  force  and  effect  of 
a  full  and  complete  release  of  all  authority  over  the  avenue  within  their  corporate 
jurisdiction,  and  the  directors  may  lay  out  and  construct  the  avenue  through  the  terri- 
tory of  such  village,  and  control  the  same  in  all  respects  as  though  the  village  did 
not  exist.     (April  3,  1856,  53  v.  46,  §  5.) 

§  3826a.  POWER  TO  CONDEMN  AVENUES  BELONGING  TO  AVENUE  COM- 
PANIES WITHIN  CORPORATE  LIMITS.  —  Where  avenue  companies  have  been  or 
may  hereafter  be  organized,  and  have  constructed  and  operated,  or  may  hereafter 
construct  and  operate  an  avenue  or  avenues  in  a  county  containing  a  city  of  the  first 
grade  of  the  first  class,  the  board  of  public  improvements  of  such  city  of  the  first 
grade  of  the  first  class,  may,  by  resolution,  declare  it  essential  or  necessary  to  the 
interest  of  said  city  that  so  much  of  any  such  avenue  as  may  be  within  the  corporate 
limits  of  the  city  should  belong  to  the  city  for  the  purpose  of  a  public  street;  and 
thereupon  if  the  company  owning  such  avenue  and  the  board  of  public  improvements 
of  the  city  are  unable  to  agree  upon  the  amount  of  compensation  to  be  paid  for  so 
much  of  said  avenue  as  lies  within  the  city,  the  board  of  public  improvements  of  such 
city  and  the  company  owning  such  avenue  may  submit  the  question  of  the  amount 
to  be  paid  for  so  much  of  such  avenue  as  lies  within  the  limits  of  such  city  to  arbi- 
tration in  the  following  manner,  to  wit:  The  board  of  public  improvements  of  such 
city  to  select  one  disinterested  person,  the  company  owning  such  avenue  to  select 
another  disinterested  person,  and  these  two  (2)  select  the  third  disinterested  person 
to  act  as  arbitrators  and  all  such  arbitrators  shall  be  resident  freeholders  of  such 
city;  and  the  amount  agreed  upon  by  all  these  three  abritrators  shall  be  binding  on 
both  such  city  and  such  company;  and  in  case  the  arbitrator  appointed  by  the  board 
of  public  improvements  of  such  city  and  the  arbitrator  appointed  by  such  company 
cannot  agree  upon  a  third  arbitrator,  or  all  three  of  such  arbitrators  fail  to  agree  on 
the  amount  to  be  paid  for  so  much  of  such  avenue  as  lies  within  the  city  limits,  or  in 
case  the  board  of  public  improvements  of  such  city,  or  the  company  owning  such 
avenue  refuse  to  submit  to  arbitration  the  question  of  the  amount  to  be  paid  for  such 
part  of  such  avenue  as  lies  within  the  limits  of  such  city,  then  the  board  of  public 
improvements  of  such  city  may  proceed  to  condemn  and  appropriate  so  much  of  such 
avenue  as  lies  within  the  city  limits,  for  public  purposes,  in  the  same  manner  in 
which  other  property  is  condemned  and  appropriated  by  municipal  corporations, 
except  that  the  resolution  of  such  board  of  public  improvements  deeming  it  necessary 
to  condemn  shall  take  the  place  and  stand  in  lieu  of  the  resolution  of  council  required 
by  sections  2234,  2235  and  2236,  Revised  Statutes  of  Ohio.  (April  4,  1888,  85  v. 
152;    April  20,  1890,  87  v.  241.) 

i 

§  3826b.     ISSUE  AND  SALE  OF  BONDS.  —  When  the  amount  of  compensation 

to  be  paid  for  such  avenue  appropriated  under  the  preceding  section  shall  have  been 

ascertained  either  by  agreement  of  the  parties,  by  decision  of  the  arbitrators  or  by 


550  Private  Corporations  in  Ohio. 


Chamber-   of  Commerce,  etc.,    §§   3827,  3829. 


the  verdict  of  a  jury  in  the  proceedings  instituted  for  the  purpose,  a  fund  shall  be 
provided  for  the  payment  of  such  compensation  together  with  the  costs  and  expenses 
of  such  proceedings  as  may  have  been  had,  by  issuing  the  bonds  of  such  city  for  the 
amount  thus  ascertained;  and  it  shall  be  the  duty  of  the  board  of  public  improve- 
ments cf  such  city  to  issue  said  bonds.  Said  bonds  shall  be  made  payable  at  such 
time  and  shall  bear  interest  at  such  rate  not  to  exceed  four  (4)  per  centum  per  annum 
as  said  board  of  public  improvements  shall  determine;  said  bonds  shall  be  signed 
by  the  president  of  the  board  of  public  improvements  and  the  mayor  of  such  city, 
and  be  attested  by  the  comptroller  of  such  city,  and  shall  be  secured  by  a  pledge  of 
the  faith  of  such  city  and  a  tax,  which  it  shall  be  the  duty  of  the  council  of  such  city 
annually  to  levy  upon  the  taxable  property  of  such  city,  and  certify  the  same  to  the 
county  auditor,  upon  a  certificate  to  that  effect  from  the  trustees  of  the  sinking  fund 
of  such  city,  as  to  the  amount  necessary  to  pay  the  interest  thereon  and  to  provide  a 
sinking  fund  for  the  final  redemption  of  said  bonds.  Said  tax  shall  be  in  addition  to 
the  amount  now  authorized  to  be  levied  for  municipal  purposes.  Said  bonds  shall  be 
sold  to  the  highest  bidder  by  said  board  of  public  improvements  at  not  less  than 
their  par  value,  after  advertising  the  same  for  not  less  than  four  consecutive  weeks, 
on  the  same  day  of  the  week,  in  some  newspaper  of  general  circulation  in  such  city. 
(April  4,   1888,  85  v.   152;    April  20,  1890,  87  v.  241.) 

§  3827.  OFFICERS  OF  BOARD  OF  TRADE,  CHAMBER  OF  COMMERCE,  ETC.  — 
The  officers  of  an  incorporated  board  of  trade,  chamber  of  commerce  or  merchants' 
exchange  or  other  kindred  association,  shall  consist  of  a  president,  two  vice-presi- 
dents, treasurer,  secretary,  and  not  less  than  ten  directors,  all  of  whom  shall  be  mem- 
bers cf  the  association,  and  be  engaged  in  business  at,  or  residents  of  the  city  or 
town  where  it  is  established;  they  shall  be  elected  by  ballot  at  the  annual  meeting 
of  the  association,  and  shall  hold  their  office  for  one  year,  unless  said  association 
shall,  by  its  by-laws,  provide  a  longer  term  for  all  or  any  of  said  officers,  and  until 
their  successors  are  elected  and  qualified;  the  officers  thus  elected,  together  with  said 
directors,  shall  constitute  the  board  of  directors  of  such  association;  provided,  how- 
ever, that  any  such  association  may  provide  for  the  election  of  not  less  than  ten 
directors,  as  aforesaid,  and  by  its  by-laws  authorize  said  directors  to  elect  a  presi- 
dent, two  vice-presidents,  a  treasurer  and  a  secretary,  and  such  additional  directors 
as  may  be  necessary  to  complete  the  maximum  membership  of  the  board,  all  of  whom 
shall  be  members  of  said  association;  the  officers  thus  elected,  together  with  said 
directors,  shall  constitute  the  board  of  directors  of  such  association;  and  all  other 
officers,  agents  or  committees  deemed  necessary  for  the  interest  of  the  association, 
shall  be  elected  or  appointed  in  such  manner  and  with  such  powers  as  may  be  provided 
by  the  by-laws  of  the  association.  And  in  like  manner  said  association  may  have 
the  power  to  provide  for  the  trial,  suspension,  fine  or  expulsion  of  any  of  its  members 
by  the  board  of  directors  constituted  as  hereinbefore  provided.  And  said  association 
may  make  provision  for  the  relief  and  support  of  the  families  and  dependents  of 
deceased  members.  (January  24,  1876,  73  v.  3  §  4;  R.  S.  1880;  March  5,  1883,  80 
v.  40;  April  4,  1894,  91  v.   108.) 


Appointment  of  inspectors. 

Under  this  section  the  Association  of  the 
Tobacco  Trade  of  Cincinnati  is  authorized  to 
appoint  an  inspector  of  leaf  tobacco,  whose 
duties  are  to  be  prescribed  by  the  by-laws  and 
rules  of  the  association,  and  the  performance 


of  his  duties,  at  the  instance  of  members  of 
the  association,  is  not  a  usurpation  of  the 
duties  required  of  the  inspectors  appointed 
under  §  4340.—  State  ex  rel.  v.  Casey,  38  Oh. 
St.  555   (1883). 


§  3828.  MAY  APPOINT  COMMITTEES  OF  ARBITRATION.  —  Such  corporations 
may  constitute  and  appoint  committees  of  reference  and  arbitration,  and  committees 
of  appeals,  who  shall  be  governed  by  such  rules  and  regulations  as  may  be  prescribed 
in  rules  or  by-laws  for  the  settlement  of  such  matters  of  reference  as  may  be  volun- 


Powers  of  Certain  Corporations.  551 

Chambers  of  Commerce,  etc. —  Building  and  Loan  Associations,   §§  3829  3836-1. 

tarily  submitted  for  arbitration  by  members  of  the  association,  or  by  other  persons 
not  members  thereof.     (April  3,  1866,  63  v.  89,  §   5.) 

§  3829.  MAY  REQUIRE  BONDS  FROM  OFFICERS.  —  Such  corporations  may 
receive  and  require  of  and  from  their  officers,  whether  elected  or  appointed,  good  and 
sufficient  bonds  for  the  faithful  discharge  of  their  duties  and  trusts,  which  bonds 
shall  be  conditioned  and  made  payable  as  prescribed  by  the  by-laws  of  the  corpora- 
tions, and  may  be  sued  (on),  and  the  money  collected  and  held  for  the  use  of  the  party 
injured,  or  such  other  use  as  may  be  determined  upon  by  the  corporation;  and  the 
president,  a  vice-president,  or  the  secretary  of  any  such  corporation,  may  administer 
such  oaths  of  office  as  may  be  prescribed  in  its  by-laws.     (April  3,  1866,  63  v.  89,  §  6.) 

§3830.  MAY  APPOINT  INSPECTORS,  ETC.  —  Every  inspector,  gauger, 
weigher,  or  measurer  appointed  by  any  such  association  shall  be  recognized  as  a 
legally  appointed  officer,  for  the  duties  pertaining  to  his  position,  in  the  city  and 
county  wherein  the  association  is  located,  and  shall  be  subject  to  all  the  provisions 
and  penalties  of  the  laws  relating  to  such  officers;  and  the  certificate  of  such  appointee 
as  to  his  official  acts  shall  be  evidence,  and  binding  upon  the  persons  interested. 
(April  3,   1866,  63  v.  89,  §  9.) 

§  3830a.  INSPECTORS,  GAUGERS,  ETC.,  MAY  APPOINT  DEPUTIES.  —  Every 
inspector,  gauger,  weigher  or  measurer  appointed  by  any  board  of  trade  or  chamber 
of  commerce  heretofore  or  hereafter  organized  in  this  state  may  appoint  one  or  more 
deputies  to  be  approved  by  the  board  of  directors  or  board  of  officers  of  such  board 
of  trade  or  chamber  of  commerce,  and  the  said  inspector,  gauger,  weigher  or  meas- 
urer may  take  from  his  deputy  a  bond,  with  sureties,  conditioned  for  the  faithful 
performance  of  the  duties  of  the  appointment,  but  in  all  cases  said  inspector,  gauger, 
weigher  or  measurer  shall  be  responsible  for  his  deputy's  neglect  of  duty  or  miscon- 
duct in  office.     (April  6,  1883,  80  v.  98.) 

§  3831.  OTHER  LIKE  ASSOCIATIONS  MAY  HAVE  BENEFIT  OF  THESE 
PROVISIONS.  —  Any  board  of  trade  or  chamber  of  commerce  heretofore  organized 
in  this  state  may  avail  itself  of  the  privileges  and  powers,  in  whole  or  in  part,  con- 
ferred by  the  three  preceding  sections,  by  making  a  certificate  of  its  adoption  thereof, 
under  its  seal,  and  attested  by  the  signature  of  its  president  and  secretary,  which 
shall  be  filed  in  the  office  of  the  secretary  of  state,  and  when  so  filed  shall  confer  all 
the  privileges  and  powers  so  defined.      (April  3,  1866,  63  v.   89,  §   11.) 

§  3832.  MAY  PURCHASE  OR  LEASE  GROUNDS  AND  ERECT  BUILDINGS; 
ISSUING  OF  BONDS.  —  Any  such  incorporated  association  may  purchase  or  lease 
suitable  grounds  and  erect  thereon  such  buildings  as  the  board  of  directors  deem 
proper,  for  the  interest  of  the  association,  and  such  association  may  lease  any  portion 
of  such  building,  that  Is  not  occupied  by  or  needed  for  its  immediate  use.  And  such 
incorporated  association  shall  have  power,  for  the  purposes  mentioned  in  this  section 
to  borrow  money  and  execute  and  sell  or  otherwise  dispose  of  its  bonds  or  other  obli- 
gations secured  by  a  mortgage  of  its  property  or  otherwise.  (April  3,  1877,  74  v. 
145,  §  1;  R.  S.  1880;  February  21,  1887,  84  v.  33.) 

§  3836-1.  BUILDING  AND  LOAN  ASSOCIATIONS;  DOMESTIC;  FOREIGN. 
—  A  corporation  for  the  purpose  of  raising  money  to  be  loaned  among  its  members 
shall  be  known  in  this  act  as  a  building  and  loan  association.  Associations  organ- 
ized under  the  laws  of  this  state  shall  be  known  in  this  act  as  "  domestic  "  associa- 
tions, and  those  organized  under  the  laws  of  other  states  or  territories,  as  "  foreign  " 
associations.     Associations  may  be  organized  and  conducted  under  the  general  laws 


552 


Private  Corporations  in  Ohio. 


Building  and  Loan  Associations,  §§  3836-2-3836-3. 


of  Ohio  relating  to  corporations,  except  as  other-wise  provided  in  this  act.     (May  1, 
1891,  88  v.  469.) 

General  laws.  I  poration.   and  its  members  are   to  be  decided 

Building  associations  are  corporations  |  according  to  th/3  statutes  of  Ohio  relating  to 
formed  for  profit,  having  a  capital  stock  and  j  such  corporations. —  Hinman  v.  Kyan,  3  0. 
the  respective  powers  and  duties  of  the   cor-  |  C.  C.  529  (18S8)  ;  s.  c,  2  C.  D.  305. 

§  3836-2.  CAPITAL;  WHEN  MAY  BEGIN  BUSINESS.  —  The  capital  stock 
named  in  the  articles  of  incorporation  shall  be  deemed  to  refer  to  the  authorized 
capital,  and  the  organization  may  be  completed  and  business  commenced  when  five 
per  cent,  thereof  is  subscribed. 

DIRECTORS'  TERMS.  —  Directors  may  be  elected  for  any  term,  not  less  than, 
one  year  nor  longer  than  three  years,  but  if  such  term  be  longer  than  one  year,  it  shall 
be  so  arranged  that  the  term  of  office  of  an  equal  number  of  directors,  as  nearly  as 
may  be,  will  expire  each  year.      (May  1,  1891,  88  v.  469.) 

§  3836-3.     Such  corporation  shall  have  power: 

DEPOSITS.  —  To  receive  money  on  deposit  from  time  to  time  to  the  extent  neces- 
sary to  meet  the  demands  made  on  it  by  its  members  and  depositors,  but  shall  not 
pay  interest  thereon,  exceeding  the  legal  rate. 


Rights  of  depositors. 

The  rules  governing  the  rights  of  deposit- 
ors in  building  and  loan  associations  differ 
from  those  governing  the  rights  of  depositors 


in  banks  or  other  companies  where  the  depos- 
itor is  a  stranger  to  the  companv. —  Sachs  v. 
Duckworth,  etc.,  Ass'n,  4  N.  P.*21-t  (1897); 
s.  c,  G  Dec.   4S4. 


STOCK.  —  To  issue  stock  to  members  on  such  terms  and  conditions  as  the  consti- 
tution and  by-laws  may  provide;  but  no  person  shall  vote  more  than  twenty  shares 
in  any  such  corporation  in  his  own  right. 


Holding   stock  in   excess   of  limit. 

An  association  cannot,  by  its  action,  author- 
ize or  permit  a  member  to  hold  more  than 
twenty  shares  of  its  stock  in  his  own  right. — 
State  ex  rel.  v.  Greenville,  etc.,  Ass'n,  29  Oh. 
St.   92    (1S76). 

Same  subject. 

An  executory  contract  between  a  building 
association  and  one  of  its  members,  in  respect 
to  shares  claimed  by  him  in  his  own  right  and 
in  excess  of  twenty  shares,  is  ultra  vires,  and 
cannot  he  enforced  by  action. —  Simpson  v. 
Building,  etc.,  Ass'n,  3*8  Oh.  St.  349   (18S2). 

Holding  more  shares  than  rules  allow  — 
effect. 

The  fact  that  a  member  is  permitted  to 
hold  in  his  own  right  a  number  of  shares 
greater  than  the  maximum  prescribed  by  the 
by-laws  of  the  company,  but  not  in  excess  of 
the  number  limited  by  statute,  is  not  a  matter 


of  defense  by  such  member  against  the  claims 
of  the  company  against  such  shares.  The 
association  may  waive  its  rule. —  Hagevman 
v.   Ohio,   etc.,  Ass'n,  25  Oh.  St.   186. 

Taking  shares  in  another's  name  to  ob- 
tain more  than  limit  —  estoppel. 

Where  one  signs  a  mortgage  given  to  secure 
a  loan  taken  in  his  name  by  another  for  the 
purpose  of  evading  this  section,  he  is  estopped 
to  plead  this  as  a  defense. —  See  Ohio,  etc., 
Ass'n  v.  Leyden.  1  W.  L.  B.  126  (1876); 
Victoria,  etc..  Ass"'n  v.  Arbeiter  Bund,  6  W.  L. 
B.  823   (1882). 

Transfer  fees  —  not  chargeable  to  equi- 
table owner. 

See  Northwestern,  etc.,  Ass'n.  v.  Henderson, 
3  W.  L.  B.  3S6   (1878). 

Injunction  to   prevent  transfer. 

See  Fox  v.  Baldwin,  0.  D.    (Davton)   132. 


DUES,  FINES,  INTEREST  AND  PREMIUM.  —  To  asses  and  collect  from  mem- 
bers and  depositors  such  dues,  fines,  interest  and  premium  on  loans  made,  or  other 
assessments,  as  may  be  provided  for  in  the  constitution  and  by-laws.  Such  dues, 
fines,  premiums  or  other  assessments  shall  not  be  deemed  usury,  although  in  excess 
of  the  legal  rate  of  interest. 

Constitutionality.  ,  void. —  Mykrantz  v.   Globe,   etc.,  Ass'n,   19  O. 

This  section,  in  exempting  associations  from  C.  C.  51  (1899);  s.  c,  10  C.  D.  250.  See 
the  operation  of  the  usury  lavs,  is  in  violation  opinion  of  A.  T.  Brewer,  contra,  42  W.  L.  B. 
of  §§   1   and  2  of  the  Bill  of  Rights,  and  is  I  330. 


Powers  of  Certain  Corporations. 


553 


Building  and  Loan  Associations,   $  3836-3. 


Interest  payable  to  receiver. 

Although  the  association  is  in  the  hand9  of 
a  receiver,  and  dues  have  stopped  by  common 
consent,  a  loan  continues  to  draw  interest, 
without  any  order  of  court,  it  being  no  de- 
fense to  show  that  this  interest  is  unneces- 
sary to  equalize  the  members,  and  the  re- 
ceiver is  entitled  to  a  decree  for  accrued  and 
unpaid  interest  without  prejudice  to  future 
actic  n. —  Hinman  v.  Ryan,  3  O.  C.  C.  529 
(18o8);   s.  c,  2  (J.  D.  305. 

Premiums  —  how  fixed  under  old   law. 

Premiums  could  only  be  fixed  by  competitive 
bidding,  and  the  association  had  no  power  to 
fix  the  premium  as  a  condition  of  making  the 
loan. —  State  ex  rel.  v.  Oberlin,  etc.,  Ass'n.  35 
Oh.  St.  258  (1879)  ;  State  ex  rel.  v.  Greenville, 
etc.,  Ass'n,  29  Oh.  St.  92  (1876);  Bates  v. 
Peoples,  etc.,  Ass'n,  42  Oh.  St.  655  (1885). 

When  premium  cannot  be  collected. 

Where  the  premium  is  fixed  by  a  rate  per 
cent.,  the  association  cannot  recover  the  pre- 
mium for  a  longer  period  than  that  fix  d  in 
the  contract  of  loan.  If  the  time  of  payment 
of  the  loan  is  extended  either  by  a  renewal  of 
the  note  or  mere  forbearance  to  collect,  no 
premium  can  be  collected  after  the  maturity 
of  the  note  and  mortgage. —  Peoples,  etc., 
Ass'n  v.  Stevens,  3  W.  L.  B.  112   (1878). 

Extortionate  premiums. 

See  Home,  etc.,  Ass'n  v.  Boning,  7  W.  L.  B. 
174   (1882). 

Interest  on  premiums. 

Associations  are  not  authorized  to  charge 
interest  on  the  premiums  allowed  for  prece- 
dence in  taking  loans.  The  money  actually 
advanced  is  the  basis  for  the  computation  of 
interest,— Forest  Citv,  etc.,  Ass'n  v.  Gal- 
lagher, 25  Oh.  St.  208"  (1874).  See  Ohio,  etc., 
Ass'n  v.  Leyden,  1  W.  L.  B.  126  (1876). 

Dues  in  insolvent  associations. 

When  an  association  is  insolvent,  and  is  in 
the  hands  of  a  court  for  liquidation,  dues  will 
only  be  payable  as  ordered  by  the  court  for 
the  purpose  of  paying  debts  and  equalizing 
stockholders  among  themselves— Hinman  v. 
Evan,  3  0.  C.  C.  529  (1888)  ;  s.  c,  2  C.  D. 
305. 

Dues  are  payments,  on  stock. 

Where  the  dues  are  to  be  paid  until  the 
amount  of  capital  is  paid  in  full,  such  pay- 
ments are  analogous  to  called  payments  of 
installments  on  stock  subscriptions  in  other 
corporations. —  Hinman  v.  Ryan,  3  0.  C.  C. 
529    (1888);   s.  c,  2  C.  D.  305. 

Power  to   assess   fines. 

An  association  may,  by  its  by-laws,  assess 
and  collect  a  reasonable  fine  for  default  in  the 
payment  of  a  stated  due.  but  cannot  assess  or 
collect  more  than  one  fine  for  the  nonpayment 
of  the  same  stated  due.    There  is  no  power  in 


the  association  to  levy,  assess  or  collect  a  fine 
for  any  default  in  the  payment  of  interest  on 
loans  andvanced. —  lhigcmian     \.     Ohio, 
Ass'n,    25   Oh.    St.    1st;    (1874)  ;    For<  -t    I  Lty 
etc.,  Ass'n  v.  Gallagher,  ±:>  Oh.  St.  208  (1874). 

Security  for  payment  of  fines. 

Where  a  loan  is  advanced  to  a  member  on 
his  stock,  it  i-  within  the  capacity  of  the 
association  to  take  security  from  such  mem- 
ber by  mortgage  or  otherwise  for  the  payment 
of  lines.  a>  well  as  dues,  which  may  be  'aw- 
fully assessed  on  account  of  such  stock. — 
Hagerman  v.  Ohio,  etc.,  Ass'n,  25  Oh.  St.  186 
(1874). 

Fines   collectible   to   time   of   decree    for 
sale,   but   not   afterward. 

See  Hutchinson  v.  Straub,  16  0,  C.  C.  152 
(1879);  >.  c,  '.i  ('.  D.  171:  Windiseh  v.  Ivor- 
man,  5  W.  L.  B.  364  (1880). 

Usury. 

The  various  charges  in  excess  of  the  legal 
rate  of  interest  are  not  usurious. —  Lucas  v. 
Greenville,  etc.,  Ass'n,  22  Oh.  St.  339    (1872). 

Usury  —  premium  not. 

Since  the  amendments  to  the  original  act. 
the  association  has  the  right  to  fix  the  pre- 
mium, though  such  sum.  when  added  to  the 
interest,  exceeds  the  legal  rate  of  interest 
allowed  by  the  statutes  in  other  cases,  and 
such  excess  is  not  usurious. —  Peoples,  etc., 
Ass'n  v.  Roberts,  5  X.  P.  86  (1898)  ;  -.  c,  •"> 
Dec.  489.  See  Bates  v.  Peoples,  etc..  Ass'n,  42 
Oh.  St.  655  (1885);  Mykrantz  v.  Globe,  etc., 
Ass'n,  19  0.  C.  C.  51  (1899);  s.  c,  10  C.  D. 
250:  opinion  of  A.  T.  Brewer,  42  W.  L.  B. 
330. 

Attorney  fee. 

Where  a  mortgagor  has  not  defaulted  on 
any  of  the  conditions  of  his  mortgage,  he  can- 
not be  fined  or  assessed  any  sum  a-  an  attor- 
nev  fee. —  Resting  v.  Donahce.  13  O.  C.  C.  653 
(1895);   s.  c,  6  C.  1).  2G2. 

Time  and  place  of  payment. 

Xo  shareholder  is  entitled  to  credit  for  pay- 
ments made  except  those  made  in  cash  at  the 
usual  place  of  business  of  the  association  at 
the  hour  fixed  by  the  by-laws  for  the  receipt 
of  dues,  and  made  according  to  rules.  Pay- 
ments otherwise  made  are  good,  if  the  money 
actuallv  comes  into  the  hands  of  the  associa- 
tion.—  Sachs  v.  Duckworth,  etc..  Ass'n.  4  N. 
P.  214   (1897);   s.  c,  6  Dec.  254. 

In  what  -payments  to   be   made. 

Where  the  constitution  of  an  association 
provided  that  payments  should  be  made  in 
money,  payments  of  dues  must  be  made  in 
cash."  and  the  giving  of  checks  is  not  pay- 
ment, and  if  a  check  is  taken  the  officers  are 
acting  as  the  agents  of  the  member  in  the 
matter  of  the  collection  of  the  check,  unless  it 
can  be  shown  that  the  stockholders,  by  acqui- 


554 


Private  Corporations  in  Ohio. 


Building  and  Loan  Associations,   §  3836-3. 


of  such  common   consent.—  Hinman  v.   Ryan, 
3  O.  C.  C.  529   (1SS8);  s.  c,  2  C.  D.  305. 

Controversy  as  to  payment  —  burden  of 
proof. 

The  burden  of  proof  is  upon  the  claimants 
to  show  payment  made  according  to  law,  and 
this  burden  is  not  sustained  by  the  mere  in- 
troduction of  the  pass-book,  showing  credits  to 
the  amount  claimed. —  Sachs  v.  Duckworth, 
etc.,  Ass'n,  4  N.  P.  214  (1S97);  s.  c,  6  Dec. 
254. 

WITHDRAWALS.  —  To  permit  members  to  withdraw  all  or  part  of  their  stock 
deposits  at  such  times  and  upon  such  terms  as  the  constitution  and  by-laws  may  pro- 
vide. Any  member,  however,  who  withdraws  his  entire  stock  or  whose  stock  has 
matured,  shall  be  entitled  to  receive  all  dues  paid  in  and  dividends  declared,  less  all 
fines  or  other  assessments,  and  less  a  pro  rata  share  of  all  losses,  if  any  have  occurred. 


escence  in  custom  or  otherwise,  authorized  a 
departure  from  the  rules  requiring  cash  pay- 
ments.—Mueller  v.  Cohen,  27  W.  L.  B.  353 
(R-.92)  :  Sachs  v.  Duckworth,  etc.,  Ass'n,  4  N. 
P.  214   (1897)  ;  s.  c,  0  Dec.  254. 

Default  —  stoppage     of     payment  —  con- 
sent. 

Where,  the  company  being  mistaken  as  to 
its  basis  of  business,  by  common  consent  all 
stopped  paying  dues,  although  the  stock  was 
not   paid  in  full,  there  is  no  default  because 


Payment  of  debts  to  association,  with- 
drawal claims. 

'  Where  the  constitution  of  an  association 
provided  that  withdrawal  claims  could  only 
be  paid  in  the  order  of  filing,  a  mortgagor, 
having  purchased  the  withdrawal  claim  of  a 
nonborrowing  member  which  was  not  yet  pay- 
able, cannot  compel  the  association  to  cancel 
his  mortgage  by  tendering  in  payment  the 
withdrawal  claim.— Ward  v.  North  Fair- 
mount,  etc.,  Co.,  5  N.  P.  133  (1897);  s.  c,  8 
Dec.  489. 

Deductions  for  possible  losses. 

As  the  settlement  of  the  liability  of  stock- 
holders is  a  matter  between  creditors  and 
stockholders,  the  association  cannot  make 
deductions  in  allowing  withdrawals  to  pro- 
vide for  possible  losses. —  Jungkuntz  v.  West 
Liberty,  etc.,  Ass'n,  6  W.  L.  B.  428   (1881). 

Notice   of   withdrawal   does   not   change 
stockholder   or   member  into   creditor. 

See  Rehn  v.  North  Fairmount,  etc.,  Co.,  5 
IT.  P.  314;  s.  c,  7  Dec.  398;  s.  c,  6  N.  P.  185 
(1899)  ;    s.   c,   8  Dec.   594. 

CANCELLATIONS.  —  To  cancel  shares  of  stock  upon  which  all  payments  have 
been  withdrawn,  or  upon  which  loans  have  been  canceled,  and  re-issue  them  as  new 
stock. 

STOCK  OF  MINORS.  —  To  issue  stock  to  minors  and  permit  the  same  to  be  with- 
drawn as  other  stock,  and  the  receipt  of  such  minor  shall  be  a  valid  acquittance,  if  his 
rights  have  been  fully  secured  to  him. 

REAL  ESTATE  AND  PERSONAL  PROPERTY.  —  To  acquire,  hold,  encumber 
and  convey  such  real  estate  and  personal  property  as  may  be  necessary  for  the  trans- 
action of  its  business  or  necessary  to  enforce  or  protect  its  securities. 
Cannot  buy  real  estate  for  allotment.  are  void  in  the  hands  of  holders  with  notice. 
A  building  association  has  no  power  to  pur-  —  Vos  v.  Cedar  Grove,  etc.,  Ass'n,  9  W.  L.  B. 
chase  land  on  credit  to  be  allotted  among  its  194  (1883). 
members,  and  its  notes  given  in  part  payment  ' 

BORROWING  MONEY. — To  borrow  money,  not  exceeding  twenty  per  cent,  of 
the  assets,  and  issue  its  evidences  of  indebtedness  therefor. 

Purposes  for  which  money  may  be  borrowed. 

See  State  ex  rel.  v.  Oberlin,  etc.,  Ass'n,  35  Oh.  St.  258  (1879). 


Power  to  compromise. 

An  association  has  power  to  compromise 
with  a  member  and  release  him  from  further 
obligation  to  the  corporation,  whether  the  in- 
debtedness arose  from  a  loan  or  on  a  sub- 
scription for  stock.  And  where  the  parties  to 
the  compromise  have  acted  in  good  faith,  the 
transaction  will  not  be  rescinded  because  the 
released  member  was  paid  a  greater  sum  of 
money  than  he  would  have  received  upon  a 
pro  rata  distribution  of  the  assets  of  the  con- 
cern.— •  Wangerien  v.  Aspell,  47  Oh.  St.  250 
(1S90).  See  State  ex  rel.  v.  Oberlin,  etc., 
Ass'n,  35  Oh.  St.  258  (1879)  ;  Eversmann  v. 
Sr-hmitt,  53  Oh.  St.  174.  189  (1895);  Main 
Street,  etc.,  Co.  v.  Richter,  16  0.  C.  C.  191 
(1898)  ;    s.  c,  9  C.  D.  74. 

Inequitable  compromise. 

A  compromise  which  is  unfair  and  inequi- 
table is  not  binding  and  conclusive  in  an 
action  to  adjust  liabilities  and  pay  debts. — 
Main  Street,  etc..  Co.  v.  Richter.  16  0.  C.  C. 
191  (1898);  s.  c,  9  C.  D.  74.  See  McKeon  v. 
Irish,  etc.,  Ass'n,  5  W.  L.  B.  52    (1S80). 


Powers  of  Certain  Corporations. 


555 


Building  and  Loan  Associations,   §  3836-3. 


LOANS.  —  To  make  loans  to  members 
and  securities  as  may  be  provided  in  tbe 

Not   a  grant  of  banking  powers. 

This  act  is  not  an  act  granting  "  banking 
powers''  within  the  meaning  of  §  7,  art.  13, 
of  the  constitution.— Bates  v.  Peoples,  etc., 
Ass'n,  42  Oh.   St.   055    (1885). 

General  banking   business. 

An  association  lias  no  power  to  make  loans 
and  discounts  except  as  provided,  and  hen  e 
no  power  to  do  general  bunking. —  See  State 
ex  rel.  v.  Greenville,  etc.,  Ass'n,  29  Oh.  St.  92 
(1876). 

Corporation      niay     become      borrowing 
member. 

Notwithstanding  the  general  law,  that  one 
company  cannot  become  a  shareholder  in  an- 
other, a  corporation  for  the  purpose  of  borrow- 
ing money  may  become  a  member  of  a  loan 
association. —  Norwalk  Savings  Bank  Co.  v. 
Norwalk  Metal,  etc.,  Co.,  14  0.  C.  C.  1  (1897) ; 
s.  c,  7  C.  D.  275. 

Loans  to  nonmenibers. 

An  association  cannot  loan  money  to  per- 
sons who  are  not  members. —  State  ex  rel.  v. 
Oberlin,  etc.,  Ass'n,  35  Oh.  St.  258,  262 
(1879)  ;  State  ex  rel.  v.  Greenville,  etc.,  Ass'n, 
29  Oh.  St.  92   (1876). 

Who  is  depositor. 

A  person  who  applies  to  a  building  and  loan 
association  for  a  loan  of  money,  and  deposits 
therewith  a  sum  of  money,  however  small,  for 
the  purpose  of  making  himself  eligible  as  a 
borrower,  and  thereby  receives  a  loan,  is 
estopped,  when  sued  for  the  money  by  the 
association,  from  denying  that  he  was  in  fact 
a  depositor.— Bates  v.  Peoples,  etc.,  Ass'n,  42 
Oh.   St.   655    (18S5). 

Same  subject. 

A  loan  to  a  depositor  is  not  invalid,  though 
he  made  a  deposit  the  day  the  loan  was  made. 
and  drew  it  out  the  day  after.—  Lockwood  v. 
Robbins,  1  C.  L.  Rep.   loi   (1878). 

Refusal   to   loan  to   members  —  ouster. 

See  State  ex  rel.  v.  Oberlin,  etc.,  Ass'n,  35 
Oh.  St.  258  (1879). 

Purpose  of  loan  —  inquiry. 

Associations  are  not  required  to  ascertain 
the  use  to  which  a  member,  who  obtains  a 
loan  on  his  stock,  intends  to  apply  the  money. 
The  borrower  may  use  the  money  for  the  pay- 
ment of  debts  generally,  or  in  his  general  busi- 


and  depositors  on  such  terms,  conditions, 
constitution  and  by-laws. 

aess,   or   for   any   other   purpose.      Eagerman 
v.  Ohio,  etc.,  Ass'n,  25  Oh.  St.  186  (1874). 

Foreclosure  —  distribution  —  computa- 
tion. 

Where  the  mortgage  is  given  to  secure  dues, 
tines  and  inten  -t.  the  computation  in  an  order 
of  distribution  i-  made  by  adding  (1)  am 
found  due  by   order   oi  2)    intere 

that  amount  to  confirmation,  (3)  'hie-  and 
interest  from  order  of  -ale  to  confirmation, 
(4)  average  interest  on  that  amounl 
presenl  value  of  future  due-  ami  Lnteresl  from 
date  of  confirmation. —  Windisch  v.  Kornian. 
5  \\\  L.  I!.  304  (1880);  Monitor,  etc.,  Ass'n 
v.  Eggen,  5  W.  L.  1'..  752  l  L880).  Si  e  l  incin- 
nati,  etc.,  Ass'n  v.  Flach,  1  C.  S.  C.  168 
(1871)  ;  Central,  etc..  Ass'n  v.  O'Connor,  5  W. 
L.  B.  853   (1880). 

Same    subject  —  permanent    association. 

Where  the  association  is  a  permanent  one, 
the  time  is  to  be  estimated  according  to  what 
would   be    required   for   paying   the   particular 

shares.     Future  profits  must  also  he  estb 
and   credited,   and   where   the  by-laws    80    pro- 
vide a  balance  struck  at  the  end  of  each  year, 
and   computations  made  on  that    basis. 
mania,  etc.,  Ass'n  a.  Mueller.   8    \Y.    L.    B.  '.'7 
(1882). 

Breach   of   condition   of   mortgage  —  de- 
cree. 

After  breach  of  the  condition  of  a  mortgage 
given   to  secure  the   payment    of   stated    due-. 
interest   on  loans  advanced,  and  fine-,   the  de- 
cree in  an  action  to  foreclose   should   be   .    n 
fined  to  the  amount  of  such  dues.  Lnteresl 
fines    then    due    and    unpaid. —  Hagerman    v. 
Ohio,  etc.,  Ass'n,  ^  oh.   St.    L86    (1874 
Ohio,  etc.,    Ass'n    v.    Leyden,   1    W.    L.    I'..    L26 
(1876);    Risk    v.   Delphos,   etc..   Ass'n,   31    Oh. 
St.   .117    (1877). 

Suit  brought  prematurely. 

"Where  the  constitution  and  by-laws  of  an 
association  provide  that  suit  may  be  brought 
on  a  loan  where  the  borrowing  member  is 
three  months  in  arrears  in  the  payim  tit  of  In- 
dues, an  action  brought  before  such  three 
months  have  elapsed  i-  prematurely  brought. 
—  Home,  etc.,  Co.  v.  Tenncy.  7  X.  P.  130 
(1898);   s.  c,  8  Dec.   391. 

Taxes    on   property   given    as    security  — 
rights   of   association. 

See  Bates  v.  Peoples,  etc..  Ass'n.  42  Oh.  St. 
655   (1S85). 


CANCELLATION  OF  LOANS.  —  To  cancel  such  loans  and  release  the  securities 
on  such  terms  as  the  board  of  directors  may  provide.  But  any  member  may  have  his 
loan  canceled  upon  the  following  terms,  to  wit:  After  the  premium  for  one  year  has 
been  paid,  and  also  the  interest  and  premium  up  to  the  date  of  cancellation,  the  bor- 
rower shall  pay  the  sum  actually  borrowed,  less  the  dues  paid  and  dividends  credited. 


556 


Private  Corporations  in  Ohio. 


Building  £.nd  Loan  Associations,   §  3836-3. 


He   shall   pay   also   any  fines   or   other   assessments  required  by   the   constitution  or 
by-laws. 


Power  to  traffic  in  stock. 

An  association  cannot  purchase  its  own 
shares  of  stock  for  the  purpose  of  disposing 
of  them  to  persons  not  intending  to  become 
members  of  the  association,  with  a  view  of 
making  such  share  the  basis  of  loans  to  such 
persons. — ■  State  ex  rel.  v.  Oberlin,  etc.,  Ass'n, 
3.3  Oh.  St.  258    (1879). 

When    cancellation    should    be    made. 

A  borrowing  member  is  one  who  receives  in 
advance  the  par  value  of  his  shares,  and 
agrees,  in  consideration  of  such  advance,  to 
pay  dues  on  the  shares  and  interest  on  the 
loan  until  the  dues  paid  and  the  dividend  de- 
clared are  equal  to  the  par  value  of  his  shares. 
He  then  ceases  to  be  a  member,  and  is  entitled 
to  a  cancellation  of  the  mortgage  given  to 
secure  the  obligations  arising  from  the  loan. 
—  Eversmann    v.     Schmitt,    53    Oh.    St.     174 


(1S95);    Home,   etc.,   Co.   v.   Tenney,   7   N.   P. 
130    (1898);   s.  c,   8  Dec.  391. 

Cancellation    by    heirs    or    legal    repre- 
sentatives. 

Where  an  association  provides  by  its  by- 
laws that  in  case  a  shareholder  who  has  re- 
ceived a  loan  shall  die,  "  his  or  her  heirs  or 
legal  representatives  may  return  the  same  to 
the  association  "  and  receive  the  value  of  the 
stock  as  fixed  by  the  by-laws,  or  they  may 
continue  the  loan,  held,  that  if  they  elect  to 
return  the  loan,  the  amount  to  be  returned  is 
the  money  actually  received  plus  the  premium 
bid  for  precedence. —  Licking,  etc.,  Ass'n  v. 
Bebout,  29  Oh.  St.  252  (1876) 

Payment   of  premium. 

See  Windhorst  v.  Germania,  etc.,  Ass'n,  7 
W.  L.  B.  29   (1882). 


RESERVE  FUND.  —  To  accumulate  from  the  earnings  and  invest  as  the  board 
of  directors  may  determine,  a  reserve  fund,  for  the  payment  of  contingent  losses. 

DIVIDENDS.  —  To  make  such  annual  or  semi-annual  distribution  of  the  earn- 
ings (after  paying  expenses  and  setting  aside  a  sum  for  the  reserve  fund  as  herein- 
after provided),  as  the  constitution  and  by-laws  may  prescribe. 

INCREASE  OR  DECREASE  OF  CAPITAL  OR  FACE  VALUE  OF  SHARES.  — 
To  increase  or  decrease  its  authorized  capital  or  the  face  value  of  its  shares  at  any 
time,  by  a  majority  vote  of  its  board  of  directors;  and  a  certificate  of  such  action 
shall  be  made  by  the  president  and  secretary,  and  duly  filed  with  the  secretary  of 
state. 

DISSOLUTION.  —  To  dissolve  the  corporation  when  its  continuance  shall  be 
deemed,  by  a  majority  vote  of  its  members,  to  be  no  longer  desirable,  subject,  how- 
ever, to  the  vested  rights  of  members. 

145    (1896)  ; 


See  §  3836-27.  Dissolution  of  corporations, 
§  5687.  See  North  Fairmount.  etc.,  Co.  v. 
Rehn,  6  N.  P.  185    (1899)  :   s.  c,  8  Dec.  594; 


In  re  Home,  etc.,  Ass'n,  3  N.  P. 
s.  c,  4  Dec.  272. 


CONSTITUTION  AND  BY-LAWS.  —  To  provide,  by  constitution  adopted  by  its 
members,  and  by-laws  adopted  by  its  board  of  directors,  for  the  proper  exercise  of 
the  powers  herein  granted,  and  the  conduct  and  management  of  its  affairs. 


Amendments. 

By-laws'  may  be  amended  notwithstanding 
the  fact  that  they  contain  no  provision  for 
amendments,  and  though  they  may  be  signed 
by  all  the  members. —  Wansjerien  v.  Aspell,  47 
Oh.  St.   250,   260    (1890). 

Amendments  must  except   existing  con- 
tracts. 

The  mortgage  contracts  between  borrowing 
members  and  building  associations  create 
vested  rights  as  to  reDate  of  interest,  etc., 
which  the  association  cannot  change  without 
their  consent.  A  threatened  change  may  be 
enjoined. —  Betz  v.  Fulton,  etc.,  Ass'n.  1  N.  P. 
42  (1S94);  s.  c.  1  Dec.  58  See  Burke  v. 
Home,    etc.,   Ass'n,    7   \\ .   L.    B.    114    (1882); 


Home,  etc.,  Ass'n  v.  Boning,  7  W.  L.  B.  174 

(1882). 

Changes    in    constitution    cannot    affect 
existing   contracts. 

See  Wvatt  v.  Workingmen's,  etc.,  Co.,  12 
Dec.  526*  (1902). 

Proof  of  by-laws. 

It  is  not  necessary  to  prove  the  adoption  of 
by-laws  by  a  formal  vote  of  the  members  or 
directors.  The  adoption  of  by-laws  is  suffi- 
ciently proved  by  showing  that  they  appear 
upon  the  records  of  the  corporation,  and  have 
been  unifoi'mly  acted  upon  and  enforced  as 
the  bv-laws  of  the  association. —  Haserman  v. 
Ohio,  etc.,  Ass'n,  -5   Jh.   St.   186    (18,4). 


Powers  of  Certain  Corporations. 


557 


Building  and  Loan  Associations,   S§  3836-4,  3836-5. 


Estoppel    to    deny    legality    of    constitu- 
tion. 

Where  a  member  has  long  acquiesced  in 
operations  of  the  company  according  to  its 
constitution,  and  many  rights  of  third  per- 
sons have  intervened  so  that  the  acts  cannot 
be  undone  or  statu  <pu>  restored,  such  member 
is  estopped  from  claiming  such  operations 
were  contrary  to  statute.  See  Iiuehlman  v. 
Atlantic,  etc.,  Co.,  6  0.  C.  C.  285  (1892);  s.  c, 
3  C.  D.  4")(i:  Deiringer  v.  Carlisle,  etc.,  Ass'n, 
2  Dee.  543   (1893). 


By-laws  —  duty  to  insure. 

Where  the  by-laws  of  a  company  provide 
that  in  case  a  borrower  fails  to  insure  the 
mortgaged  property,  the  company  shall 
t  in-  same  to  be  insured  ;  I  be  compa  ay  a  fl  ei  m 
suring  property  musl  attend  to  renewals  and 
in  case  it  fails  to  do  so  and  the  property  is 
destroyed,  it  is  liable  for  the  loss. —  Geswine 
v.  Star  Building,  etc.,  Co.,  23  <>.  C.  C.  477 
i  L902). 


GENERAL  POWERS.  —  All  such  other  powers  as  are  necessary  and  proper  to 
enable  such  corporation  to  carry  out  the  purpose  of  its  organization.  (May  1,  1891, 
88  v.  469.) 


Not  banking  powers. 

The  advancing  of  money  by  a  building  asso 
ciation  to  its  members  is  not  the  exercise   of 


Agents. 

A  representative  of  the  company  authorized 
to  transact  most  of  its  business  does  nol    be- 


banking   powers. —  Forest  City,  etc.,   Ass'n  v.  i  come    the   agent   of   a    borrower   by    receiving 
Gallagher,  25  Oh.  St.  208  (isf4).  a    commission   for   making   a   loan.— See    Mc- 

I  Mullen  v.  Griggs,  23  <>.  C.  C.  417    (1902). 

§  3836-4.  DEPOSIT  IN  BANK  AND  CHECKS  THEREON;  TREASURER'S 
BANK  BOOK;  EXPENDITURES.  —The  board  of  directors  shall  designate  a  bank  or 
banks  in  which  the  treasurer  shall  deposit  all  funds  in  the  name  of  such  corporation. 
Such  funds  can  then  be  withdrawn  only  by  check  signed  by  the  president  and  financial 
secretary,  or  such  other  officers  as  the  board  of  directors  may  designate.  The  treas- 
urer's bank  book  shall  be  open  to  the  inspection  of  any  director  at  any  time.  No 
president  or  secretary  or  other  officer  shall  sign  any  check  unless  the  expenditure  has 
been  authorized  by  the  board  of  directors. 

BONDS  OF  OFFICERS;  DIRECTORS  INELIGIBLE  AND  PERSONALLY 
LIABLE.  —  All  officers  of  such  association  who  have  charge  or  possession  of  money, 
securities,  or  property,  shall  give  bond  before  entering  upon  their  duties  to  the  satis- 
faction of  the  board  of  directors,  for  the  faithful  performance  of  the  same,  and  the 
safe-keeping  and  proper  application  of  all  moneys  or  property  coming  into  their  hands. 
All  officers  of  such  corporations  on  being  re-elected  to  office  shall  renew  their  bonds. 
The  bond  may  be  increased  or  additional  sureties  required  at  any  time  by  the  board 
of  directors.  Directors  shall  not  be  eligible  as  bondsmen,  and  shall  be  individually 
liable  for  any  loss  to  members,  caused  by  their  neglect  to  comply  with  the  provisions 
of  this  section.     (May  1,  1891,  88  v.  469.) 


Official  bonds. 

See  Building  Ass'n  v.  Cummings,  45  Oh.  St. 
664  (1888). 

Bond  of  attorney. 

An  attorney  for  an  association  is  not  an 
officer,  and  his  bond  is  not  an  official  bond. 
See  further  as  to  liability  of  sureties,  New 
German,  etc.,  Co.  v.  Kuehnert,  7  N.  P.  264 
(1896)  ;    s.   c,  6  Dec.   502. 


Set-off. 

In  an  action  by  a  withdrawing  shareholder 

of  a  building  association  for  the  amount  of 
his  paid-up  installments,  with  dividends,  the 
assocation  may  plead,  by  way  of  set-off  and 
affirmative  relief,  any  claim  which  the  associa- 
tion may  have  against  such  withdrawing 
shareholder  by  reason  of  moneys  wrongfully 
and  unlawfully  paid  out  to  him  while  acting 
as  treasurer  of  such  association. —  Gelhaus  v. 
Allemania,  etc.,  Ass'n,  4  X.  P.  255  (1S97); 
s.  c.,  6  Dec.  443. 


§  3836-5.  FUND  FOR  CONTINGENT  LOSSES.  —  The  amount  to  be  set  aside  to 
the  fund  for  contingent  losses  shall  be  determined  by  the  board  of  directors,  but  in 
all  permanent  or  perpetual  associations,  at  leact  five  per  cent,  of  the  net  earnings  shall 
be  set  aside  each  year  to  such  fund  until  it  reaches  at  least  five  per  cent,  of  the  out- 
standing loans.  All  losses  shall  be  paid  out  of  such  fund  until  the  same  is  exhausted, 
and  whenever  the  amount  in  said  fund  falls  below  five  per  cent,  of  the  loans  as  afore- 


558 


Private  Corporations  in  Ohio. 


Building  and  Loan  Associations,   §§  3836-6,  3836-7. 


said,  it  shall  be  replenished  by  annual  appropriations  of  at  least  five  per  cent,  of  the 
net  earnings  as  hereinbefore  provided  until  it  again  reaches  said  amount.  (May  1, 
1891,  88  v.  469.) 


Who  interested  in  reserve. 

All     members,    whether    borrowers    or    not, 
have   a   pro  rata    interest   in    the  reserve   fund. 


—  Seibel 

(1885). 


v.    Building   Ass'n,    43    Oh.    St.    371 


§  3836-6.  EARNINGS;  APPLICATION  OF.  —  All  expenses  of  such  associations 
shall  be  paid  out  of  the  earnings  only,  and  so  much  of  the  earnings  as  may  be  neces- 
sary shall  be  set  aside  each  year  for  such  purpose.  But  charges  incident  to  a  loan, 
if  paid  by  the  borrower,  shall  not  be  deemed  a  part  of  the  current  expenses. 

DIVIDENDS. — A  portion  of  the  earnings,  to  be  determined  by  the  board  of 
directors,  shall  also  be  reserved  annually  or  semi-annually,  for  the  payment  of  con- 
tingent losses,  as  provided  in  section  five  (§  3836-5)  of  this  act,  and  the  residue  of 
such  earnings  shall  be  transferred  as  a  dividend  annually,  or  semi-annually,  in  such 
proportion  to  the  credit  of  all  members,  as  the  corporation  by  its  constitution  and 
by-laws  may  provide,  to  be  paid  to  them  at  such  time  and  in  such  manner  in  con- 
formity with  this  act  as  the  corporation  by  its  constitution  and  by-laws  may  provide. 


Estoppel  as  to   dividends. 

Where  one  on  borrowing  is  fully  advised  as 
to  how  dividends  are  declared,  and  received 
them  several  years  on  that  basis,  and  allowed 
other  members  to  be  dealt  with  in  the  same 
way.  and  it  is  impossible  to  recast  accounts, 
he  will  be  estopped  to  deny  the  legality  of  the 
division. —  Ruehlman  v.  Atlantic,  etc..  Co.,  6 
O.  C.  C.  285  (1892);  s.  c,  3  C.  D.  456.  See 
Deiringer  v.  Carlisle,  etc.,  Ass'n.  2  Dec.  543 
(1893);   s.  c,  36  W.  L.  B.  32S;   Atlantic,  etc., 


Co.  v.  Vogeler,   7   N.   P.  605    (1895);    s.   c,  5 
Dec.  581. 

Dividends  under  prior  act. 

See  Seibel  v.  Building  Ass'n,  43  Oh.  St.  371 
(1885):  Ruehlman  v.  Atlantic,  etc.,  Co.,  6  O. 
C.  C.  285  (1892);  s.  c,  3  C.  D.  456;  Turner, 
etc..  Verein  v.  Woodbum,  27  W.  L.  B.  409 
(1S92):  Deiringer  v.  Carlisle,  etc.,  Ass'n,  2 
Dec.   543    (1893). 


LOSSES.  —  All  losses  shall  be  assessed  in  the  same  proportion  and  manner  on  all 
members  after  the  amount  in  the  reserve  fund  has  been  applied  to  the  payment  of 
the  same.     (May  1,  1891,  88  v.  469.) 


Losses   shared  by  all  members. 

The  members  of  a  building  association, 
whether  borrowers  or  nonborrowers,  must  as- 
sist alike  in  bearing  losses.  Where  a  borrow- 
ing member's  mortgage  secured  the  payment 
of  assessments,  it  secures  an  assessment  made 
by  a  receiver  against  all  members  to  equalize 
losses. — Eversmann  v.  Schmitt,  53  Oh.  St. 
174  (1895).  See  McKeon  v.  Irish,  etc..  Ass'n, 
5  W.   L.  B.  52    (18S0). 

Basis   of  assessment. 

The  proper  basis  of  assessment  upon  the 
stock  of  an  insolvent  association  to  pay  its 
debts  and  equalize  losses,  both  in  case  of  bor- 
rowing and  nonborrowing  members,  is  dues 
and  earnings  which  should  stand  to  the  credit 
of  his  stock. —  Main  Street,  etc.,  Co.  v.  Rieh- 
ter,  16  O.  C.  C.  191  (1S9S)  ;  s.  c,  9  C.  D.  74. 
See  In  re  Building  Ass'n,  7  N.  P.  518  (1897)  ; 
s.  c.j  5  Dec.  556. 


Notice   of   withdrawal    does   not    cut   off 
liability. 

The  notice  to  withdraw  by  a  building  asso- 
ciation stockholder,  depositor  or  member  does 
not  save  him  from  liability  in  the  loss  which 
the  association  may  suffer  before  he  succeeds 
in  withdrawing. —  Harrison,  etc.,  Ass'n  v. 
Howell,  39  W.  L.  B.  386  (1898)  ;  s.  c,  5  N.  P. 
273;  s.  c,  7  Dec.  353. 

I£ortgage    not    satisfied    till   losses    pro- 
rated. 

Though  a  certificate  of  stock  may  provide 
for  full  payment  in  a  certain  time,  a  mortgage 
given  to  secure  an  advance  will  not  oe  satis- 
fied until  losses  are  prorated. —  Haynes  v. 
Peoples,  etc.,  Ass'n,  2  N.  P.  1S1  (1S95*);  s.  c, 
3  Dec.  228. 


§  3836-7.  UNDRAWN  SHARES  LISTED  AS  CREDITS.  —  The  shares  and  loans, 
advanced  to  its  members,  shall  be  exempt  from  taxation,  except  shares  of  stock  upon 
which  no  loans  have  been  made  or  money  advanced  by  the  company,  shall  be  consid- 
ered and  held  as  credits,  and  the  said  members  individually  shall  list  for  taxation  the 
number  of  shares  held  by  them,  and  the  true  value  thereof  in  money,  on  the  day  pre- 


Powers  of  Certain  Corporations.  559 

Building  and  Loan  Associations,  S§  3836-8-3836-12. 

ceding  the  second  Monday  in  April  in  each  year,  and  the  same  shall  be  assessed  at 
such  valuation  for  taxation  and  taxes  as  other  property.     (May  1,   1891,  88  v.  469.) 

§  3836-8.  BUREAU  OF  BUILDING  AND  LOAN  ASSOCIATIONS.  —  There  is 
hereby  established  in  the  department  of  insurance  a  bureau  to  be  known  as  the  bureau 
of  building  and  loan  associations,  which  shall  be  charged  with  the  execution  of  the 
laws  of  this  state  relating  to  building  and  loan  associations.  (May  1,  1891,  88  v. 
469.) 

Duties  as  to  bond  and  investment  companies. —  See  §  3821r  et  seq. 

§  3836-9.  INSPECTOR;  COMPENSATION;  BOND;  OATH. —The  chief  officer 
of  said  bureau  shall  be  known  as  the  inspector  of  building  and  loan  associations;  the 
superintendent  of  insurance,  shall,  ex-officio,  be  also  the  inspector  of  building  and 
loan  associations,  and  as  compensation  for  his  services  as  such  inspector  he  shall  be 
entitled  to  receive  the  sum  of  one  thousand  dollars  per  annum.  Before  entering  upon 
his  duties,  he  shall  give  bond  to  the  state  of  Ohio  in  the  sum  of  ten  thousand  dollars, 
to  be  approved  by  the  governor,  conditioned  for  the  faithful  discharge  of  his  duties, 
and  the  bond,  with  his  oath  of  office  and  the  approval  of  the  governor  indorsed 
thereon,  shall  be  filed  with  the  secretary  of  state. 

DEPUTIES;  CLERKS.  —  The  inspector  may  appoint  a  deputy,  who  shall  be 
authorized  to  perform  the  duties  attached  by  law  to  the  office  of  inspector,  during  his 
absence  or  disability,  and  shall  receive  a  salary  of  eighteen  hundred  dollars  per  year. 
He  shall  also  appoint  such  other  clerks  or  examiners  as  may  be  provided  for  by  law. 
(May   1,   1891,  88  v.  469.) 

§  3836-10.  OFFICES  AND  EXPENSE.  —  The  adjutant-general  shall  provide 
suitable  accommodations  for  the  conduct  of  the  business  of  the  bureau  in  the  office  of 
the  superintendent  of  insurance  and  furnish  the  necessary  furniture,  etc.,  and  the 
expense  for  the  same  shall  be  paid  out  of  the  state  treasury,  on  the  certificate  of  the 
inspector  and  the  warrant  of  the  adjutant-general.      (May  1,  1891,  88  v.  469.) 

§  3836-11.  INSPECTOR  MUST  ENFORCE  LAWS.  —It  shall  be  the  duty  of  the 
inspector  to  see  that  all  the  laws  of  this  state,  relating  to  building  and  loan  associa- 
tions, are  faithfully  executed.      (May  1,  1891,  88  v.  469.) 

§  3836-12.  LAWS  GOVERNING;  AUTHORITY  PROCURED  BY  DEPOSIT;  BY 
FILING  COPY  OF  CHARTER,  AND  BY  PROVIDING  FOR  SUMMONS  IN  ACTIONS. 
—  Foreign  building  and  loan  associations  doing  business  in  this  state,  shall  conduct 
the  same  in  accordance  with  the  laws  of  the  state  governing  domestic  associations, 
and  no  such  association  shall  do  any  business  in  this  state  until  it  procures  from  the 
inspector  a  certificate  of  authority  to  do  so.  To  procure  such  authority,  such  associa- 
tion shall  comply  with  the  following  provisions: 

First.  It  shall  deposit  with  the  inspector  one  hundred  thousand  dollars,  either  in 
cash  or  bonds  of  the  United  States  or  of  the  state  of  Ohio,  or  of  any  county  or  munici- 
pal corporation  in  the  state  of  Ohio,  satisfactory  to  the  inspector. 

Second.  It  shall  file  with  the  inspector  a  certified  copy  of  its  charter,  constitution 
and  by-laws,  and  other  rules  and  regulations  showing  its  manner  of  conducting  busi- 
ness together  with  a  statement  such  as  is  required  annually  from  all  associations. 

Third.  It  shall  also  file  with  the  inspector  a  written  instrument,  duly  executed, 
agreeing  that  a  summons  may  issue  against  it  from  any  county  in  this  state  directed 
to  the  sheriff  of  the  county  in  which  the  office  of  inspector  is  situate,  commanding 
him  to  serve  the  same  by  certified  copy  personally  upon  the  inspector  or  by  leaving 
a  copy  thereof  at  his  office.     The  inspector  shall,  however,  mail  a  copy  of  any  papers 


560  Private  Corporations  in  Ohio. 

Building  and  Loan  Associations,  §§  3836-13-3836-18. 

served  on  him,  postage  prepaid,  to  the  home  office  of  such  association.      (May  1,  1891, 
88  v.   469.) 

Exemption  from  laws  governing  foreign  corporations. —  See  §§    148c  and  148d. 

§  3836-13.  CERTIFICATE  OE  AUTHORITY  TO  DO  BUSINESS.  —  Whenever 
such  association  has  complied  with  the  provisions  of  this  act,  and  the  inspector  is 
satisfied  that  such  association  is  doing  business  according  to  the  laws  of  this  state, 
and  is  in  sound  financial  condition,  he  shall  issue  his  certificate  of  authority  to  such 
association  to  do  business  in  this  state.  Annually  thereafter,  upon  the  filing  of  the 
annual  statement  herein  provided  for,  if  the  inspector  shall  be  satisfied  as  aforesaid, 
he  shall  issue  a  renewal  of  such  certificate  of  authority.     (May  1,  1891,  88  v.  469.) 

§  3836-14.  COLLECTION  OF  INTEREST  AND  EXCHANGE  OF  SECURITIES.— 
Such  foreign  association  may  collect  and  use  the  interest  on  any  securities  so 
deposited,  so  long  as  it  fulfills  its  obligations  and  complies  with  the  provisions  of  this 
act.  It  may  also  exchange  them  for  other  securities  of  equal  value  and  satisfactory 
to  the  inspector.     (May  1,  1891,  88  v.  469.) 

§  3836-15.  SECURITIES  LIABLE  FOR  CLAIMS. — The  deposit  made  with  the 
inspector  shall  be  held  as  a  security  for  all  claims  of  residents  of  this  state  against 
said  association,  and  shall  be  liable  for  all  judgments  or  decrees  thereon,  and  sub- 
jected to  the  payment  of  the  same  in  the  same  manner  as  the  property  of  other  non- 
residents. Should  any  association  cease  to  do  business  in  this  state,  the  inspector  may 
release  securities  in  his  discretion,  retaining  sufficient  to  satisfy  all  outstanding  lia- 
bilities.    (May  1,  1891,  88  v.  469.) 

§  3836-16.  TO  BE  FILED  ANNUALLY;  COPY  OF  CONSTITUTION  AND 
BY-LAWS. —  Every  building  and  loan  association  doing  business  in  this  state  shall, 
annually,  at  the  end  of  each  fiscal  year,  or  within  forty  days  thereafter,  make  a  full 
and  detailed  report  in  writing  of  the  affairs  and  business  of  the  association  for  the 
preceding  year,  and  showing  its  financial  condition  at  the  end  of  said  fiscal  year. 
With  the  first  report  made  by  any  association  it  shall  also  file  a  certified  copy  of  its 
constitution  and  by-laws,  or  other  rules  and  regulations,  showing  its  manner  of  doing 
business.     (May  1,  1891,  88  v.  469.) 

§  3836-17.   FORM;  OATH  AND  ATTESTATION;  FILING;  POSTING  ABSTRACT. 

—  The  statement  shall  be  in  such  form  and  contain  such  information  as  may  be  pre- 
scribed by  the  inspector  of  building  associations.  It  shall  be  sworn  to  by  the  secre- 
tary, and  its  correctness  attested  by  at  least  three  directors,  or  an  auditing  committee 
appointed  by  the  board.  The  original  shall  be  filed  with  the  inspector  of  building 
associations  within  forty  days  after  the  close  of  the  fiscal  year,  and  such  an  abstract 
thereof  as  the  inspector  may  require  shall  be  posted  for  sixty  days  in  the  office  or 
meeting  place  of  such  association,  and  also  published  in  some  paper  regularly  issued 
in  the  county  in  which  said  association  is  located.     (May  1,   1891,  88  v.  469.) 

See  §  3S36-3. 

§  3836-18.  WHEN  TO  EXAMINE;  EXPENSE  THEREOF.  —  The  inspector,  when 
he  has  reason  to  suspect  the  correctness  of  any  statement  of  an  association  doing 
business  in  this  state,  or  that  its  affairs  are  in  an  unsound  condition,  or  that  it  is  not 
conducting  its  business  in  accordance  with  law,  may  make  or  cause  to  be  made  by 
some  person  by  him  appointed  for  that  purpose,  an  examination  into  the  affairs  of 
such  association.  The  expense  of  all  examinations  provided  for  herein  shall  be  paid 
by  the  state  of  Ohio;  provided,  that  when,  by  the  laws  of  any  other  state,  district, 
territory  or  nation,  examinations  of  such  associations  of  this  state  are  required  or 


Powers  of  Certain  Corporations.  561 

Building  and  Loan  Associations,  SS  3836-19-3836-22. 


permitted  to  be  made  by  any  official  or  other  authority  of  such  other  state,  district, 
territory  or  nation,  at  the  expense  of  such  associations,  then  the  expenses  of  all  such 
examinations  made  by  the  inspector  of  this  state,  of  such  association  of  such  state, 
district,  territory  or  nation,  shall  be  respectively  charged  to  and  collected  from  such 
associations  so  examined. 

REVOCATION  OF  CHARTER  FOR  ILLEGAL  PRACTICES.  —  Should  the  in- 
spector, upon  examination,  find  any  domestic  association  conducting  its  business  in 
-whole  or  in  part  contrary  to  law,  or  failing  to  comply  with  the  law,  he  shall  so  notify 
the  board  of  directors  of  such  association  in  writing,  and  if,  after  thirty  days,  such 
illegal  practices  or  failure  continue,  he  shall  communicate  the  facts  to  the  attorney- 
general,  who  shall  cause  proceedings  to  be  instituted  in  the  proper  court  to  revoke  the 
charter  of  such  association. 

DISSOLUTION  IF  CONDITION  UNSOUND.  —  Should  the  inspector  find,  upon 
examination,  that  the  affairs  of  any  such  association  are  in  an  unsound  condition, 
and  that  the  interests  of  the  public  demand  the  dissolution  of  such  association,  and 
the  winding  up  of  its  business,  he  shall  so  report  to  the  attorney-general,  who  shall 
institute  the  proper  proceedings  for  that  purpose.  (May  12,  1902,  95  v.  614;  May 
1,  1891,  88  v.  469.) 

When  association   not  insolvent. 

See  North  Fairmount,  etc.,  Co.  v.  Rehn.  6  X.  P.  185  (1S99)  ;  s.  c,  8  Dec.  594. 

§  3836-19.  EXAMINERS:  POWERS  OF.  —  Such  examiners  shall  have  access  to 
and  may  compel  the  production  of  all  the  books,  papers,  securities  and  moneys,  etc., 
of  the  association,  under  examination.  They  shall  have  power  to  administer  oaths 
to,  and  examine  the  officers  and  agents  of  such  association  as  to  its  affairs.  (May  1, 
1891?  88  v.  469.) 

§  3836-20.  INSPECTOR  MAY  PUBLISH  RESULT.  —  When  the  inspector  deems 
it  to  the  interest  of  the  public,  he  may  publish  the  results  of  such  examination  in 
some  newspaper  of  general  circulation  in  the  county  in  which  such  association  is 
located,  if  it  be  a  domestic  association,  and  in  some  newspaper  in  the  city  of  Columbus, 
Ohio,  if  it  be  a  foreign  association.     (May  1,  1891,  88  v.  469.) 

§  3836-21.  MAY  CANCEL  AUTHORITY  OF  FOREIGN  ASSOCIATIONS.  — 
Should  the  inspector  find,  upon  examination,  that  any  foreign  association  does  not 
conduct  its  business  in  accordance  with  the  law,  or  that  the  affairs  of  any  such  asso- 
ciation are  in  an  unsound  condition,  or  if  such  association  refuses  to  permit  examina- 
tion to  be  made,  he  may  cancel  the  authority  of  such  association  to  do  business  in  this 
state,  and  cause  a  notice  thereof  to  be  mailed  to  the  home  office  of  the  association,  and 
to  be  published  in  at  least  one  newspaper  published  in  the  city  of  Columbus.  After 
the  publication  of  such  notice  it  shall  be  unlawful  for  any  agent  of  said  association 
to  receive  any  further  stock  deposits  from  members  residing  in  this  state,  except  pay- 
ments on  stock  on  which  a  loan  has  been  taken.     (May  1,  1891,  88  v.  469.) 

§  3836-22.  FEES  TO  BE  PAID  TO  INSPECTOR.  —  Foreign  building  and  loan 
associations  shall  pay  to  the  inspector  the  following  fees,  to-wit:  For  filing  each 
application  for  admission  to  do  business  in  this  state,  one  hundred  dollars.  For  each 
certificate  of  authority  and  annual  renewal  of  same,  fifty  dollars;  both  foreign  and 
domestic  associations  shall  pay  to  the  inspector  for  filing  each  annual  statement,  as 
follows:  If  the  assets  of  the  association,  as  shown  by  the  statement  filed,  amount  to 
$50,000.00  or  less,  $3.00;  if  more  than  850,000.00  and  less  than  S  100,000.00, 
$5.00;  if  more  than  $100,000.00  and  less  than  $250,000.00,  $10.00;  if  more  than 
$250,000.00  and  less  than  $500,000.00,  $20.00;  if  more  than  $500,000.00  and  less 
than  $1,000,000.00,  $30.00;  if  more  than  $1,000,000.00,  $50.00.       For  each  copy  of 

LAW  GOV.    PRIV.    COR. —  36. 


562  Private  Corporations  in  Ohio. 


Building  and  Loan  Associations,  §§  3836-23-3836-25. 

a  paper  filed  in  his  office,  twenty-five  cents  per  folio.  For  affixing  the  seal  of  office 
and  certifying  any  paper,  one  dollar.  The  fees  provided  for  herein  shall  be  deposited, 
by  said  inspector,  with  the  state  treasurer  upon  the  warrant  of  the  state  auditor. 
(May  12,  1902,  95  v.  615;  May  1,  1891,  88  v.  469.) 

§    3836-23.     SECURITIES  TO   BE    DEPOSITED   IN   STATE   TREASURY.  —  All 

securities  of  cash  deposited  with  the  inspector  shall  be  immediately  deposited  with  the 
treasurer  of  state,  who,  with  his  sureties,  shall  be  responsible  for  the  safe-keeping 
thereof.  The  treasurer  shall  deliver  such  securities  only  upon  che  written  order  of 
the  inspector  of  building  associations.      (May  1,  1891,  88  v.  469.) 

1  §     3836-24.     Sec.     24.     PENALTIES    AGAINST    ASSOCIATION.  —  It     shall    be 

unlawful  for  any  building  and  loan  association  to  do  business  in  this  state  without 
having  first  complied  with  the  provisions  of  this  act,  and  any  association  violating 
any  of  the  provisions  of  this  act,  or  failing  to  comply  with  any  of  its  provisions,  shall 
be  fined  not  less  than  fifty  nor  more  than  one  thousand  dollars,  to  be  recovered  by  an 
action  in  the  name  of  the  state,  and  on  collection  paid  into  the  state  treasury;  pro- 
vided, that  building  and  loan  associations  organized  in  other  states,  having  hereto- 
fore transacted  business  in  this  state,  which  shall  not  have  complied  with  the  pro- 

,  visions  of  this  act,  shall  have  the  right  to  close  up  their  business,  and  fulfill  their 
contracts,  heretofore  entered  into  with  citizens  of  this  state,  through  their  duly 
authorized  agents,  without  being  subject  to  the  penalties  prescribed  by  this  act. 
(May  1,  1891,  88  v.  469.) 

§  3836-25.  Sec.  25.  PENALTIES  AND  CIVIL  LIABILITY  OF  OFFICERS, 
AGENTS  AND  OTHERS;  FORBIDDEN  ACTS.  —  Every  president,  director,  trustee, 
member  of  any  committee,  secretary,  treasurer,  attorney  or  any  other  officer  at  any 
time  created,  or  agent  of  any  such  corporation,  who  embezzles,  abstracts  or  willfully 
misapplies  any  of  the  moneys,  funds  or  credits  of  such  corporation,  or  who  issues  or 
puts  into  circulation  any  warrant  or  other  order,  or  who  assigns,  transfers,  cancels  or 
delivers  up  any  note,  bond,  draft,  mortgage,  judgment,  decree,  or  any  other  written 
instrument  belonging  to  such  corporation,  or  raises  money  otherwise,  or  receives 
money  from  any  member  or  other  person  for  and  in  the  name  of  such  corporation, 
unless  duly  authorized  by  the  board  of  directors  of  such  corporation;  or  who  shall 
sign  the  name  of  any  person  to  any  order  or  warrant  for  the  payment  of  money  with- 
out proper  power  of  attorney  or  written  order  from  such  person  to  whose  order  such 
warrant  or  order  is  made  payable;  or  any  member  or  members  of  the  board  of  direct- 
ors who  shall  vote  to  declare,  or  any  financial  or  first  secretary  of  such  corporation 
who  shall  declare  or  advise  the  board  of  directors  of  such  corporation  to  declare  a 
greater  dividend  than  what  has  been  actually  earned  by  the  corporation,  for  the  pur- 
pose of  deceiving  the  people  or  defrauding  the  members  of  such  corporation;  or  who 
certifies  to  or  makes  any  false  entry  on  any  book,  report,  or  statement  of  or  to  such 
corporation,  with  intent  in  either  case  to  deceive,  injure  or  defraud  the  corporation  or 
any  other  company,  body  politic  or  corporate,  or  any  individual  person,  or  to  deceive 
any  one  appointed  to  examine  the  affairs  of  such  corporation;  and  every  person  who 
with  like  intent  aids  or  abets  any  president,  secretary,  treasurer,  committee  or  other 
officer  or  person  in  any  violation  of  this  section  shall  be  deemed  guilty  of  a  felony, 
and  shall  be  imprisoned  not  less  than  one  year  nor  more  than  ten  yeaz'S,  and  shall  be 
liable  civilly  to  the  party  injured,  to  the  extent  of  such  damage  thereby  incurred, 
and  suit  may  be  brought  against  such  person  and  the  sureties  on  his  bond  given  to 
such  corporation  for  the  faithful  performance  of  his  duty.  Any  officer  whose  duty  it 
is,  failing  to  make  the  reports  required  by  this  act,  and  any  officer,  employe,  or  other 
person,  who  solicits  business  for,  aids  or  assists  any  building  and  loan  association 
to  do  business  contrary  to  the  provisions  of  this  act,  or  without  having  complied  with 
its  provisions,  shall  be  guilty  of  a  misdemeanor,  and  on  conviction  thereof  shall  be 


Powers  of  Certain  Corporations.  563 


Building  and  Loan  Ass'ns  —  Trade  Ass'ns —  Common  Carriers,  S§  3836-26  3838. 

fined  not  more  than  five  hundred  dollars,  or  imprisoned  not  more  than  six  months, 
or  both.  Such  fines,  when  collected,  to  be  paid  into  the  state  treasury.  (May  1,  1891, 
88  v.  469.) 

§  3836-26.  Sec.  26.  ANNUAL  REPORT  OF  INSPECTOR.  —  The  inspector  shall 
keep  and  preserve  in  permanent  form  a  full  record  of  his  proceedings,  including  a 
concise  statement  of  each  association  examined,  and  he  shall,  annually,  make  a  report 
to  the  legislature  of  the  general  conduct  and  condition  of  the  building  and  loan  asso- 
ciations doing  business,  in  this  state,  with  such  suggestions  as  he  may  deem  expe- 
dient. Such  report  shall  also  include  the  information  contained  in  the  statements 
required  of  the  associations,  and  arranged  in  tabulated  form.  He  shall  also  report  the 
names  and  compensation  of  the  clerks  employed  by  him,  the  whole  amount  of  the 
income,  the  source  whence  derived,  and  the  expenses  in  detail,  during  the  year  ending 
on  the  thirty-first  day  of  December.     (May  1,  1891,  88  v.  469.) 

§  3836-27.  Sec.  1.  DISSOLUTION  OR  CONSOLIDATION  OF  BUILDING  AND 
LOAN  ASSOCIATIONS.  —  Building  and  loan  associations  shall  be  authorized  to  pro- 
vide in  their  constitutions  and  by-laws  for  the  time  and  terms  of  the  dissolution  of 
such  corporations;  and  also  for  the  consolidation  of  two  or  more  of  such  corporations 
into  one,  upon  such  terms  and  conditions  as  may  be  determined  upon  by  their  boards 
of  directors;  also,  in  case  of  the  dissolution  of  any  such  corporation,  its  board  of 
directors  may,  by  a  majority  vote,  be  authorized  to  sell  and  transfer  its  mortgage 
securities  or  other  property,  or  both,  to  another  corporation,  person  or  persons,  subject 
always  to  the  vested  and  accrued  rights  of  the  mortgagors.  (April  27,  1893,  90  v. 
315;  May  1,   1891,  88  v.  469;  April  11,   1889,  86  v.  238,  §  3835J.) 

§  3837.  CO-OPERATIVE  TRADE  ASSOCIATIONS.  —  An  association  incorporated 
for  the  purpose  of  purchasing,  in  quantity,  grain,  goods,  groceries,  fruits,  vegetables, 
provisions,  or  any  other  articles  of  merchandise,  and  distributing  the  same  to  con- 
sumers at  the  actual  cost  and  expense  of  purchasing,  holding,  and  distributing  tne 
same,  may  employ  its  capital  and  means  in  the  purchase  of  such  articles  of  merchan- 
dise as  it  deems  best  for  the  company,  and  in  the  purchase  or  lease  of  such  real  and 
personal  estate,  subject  always  to  the  control  of  the  stockholders,  as  may  be  neces- 
sary or  convenient  for  purposes  connected  with  and  pertaining  to  its  business,  and 
may  adopt  such  plan  of  distribution  of  its  purchases  among  the  stockholders  and 
others  as  it  deems  most  convenient,  and  best  adapted  to  secure  the  ends  proposed  by 
the  organization;  and  any  profits  that  may  arise  from  the  business  of  the  company 
may  be  divided  among  the  stockholders  from  time  to  time,  as  it  deemr  expedient,  in 
proportion  to  the  several  amounts  of  cheir  respective  purchases.  (April  13,  1867, 
64  v.   145,  §§  2,  5.) 

§  3838.  COMMON  CARRIERS  COMPANIES.  —  A  corporation  organized  as  and 
for  a  common-carrier  company  shall  have  the  following  powers: 

1.  To  make  all  contx-acts  that  it  shall  be  lawful  for  natural  persons  to  make  for 
the  carriage  of  persons,  and  the  storage,  forwarding,  carriage,  and  delivery  of  prop- 
erty, but  subject  to  the  same  liabilities. 

2.  To  lease,  and  to  hold  and  operate,  any  line  of  railway  and  its  appendages, 
either  before  or  after  its  completion,  owned  by  a  municipal  corporation  of  this  state, 
and  any  railway  connected  therewith,  lying  without  this  state,  and  such  portion  of  any 
railway  within  this  state  as  may  be  necessary  for  the  convenient  dispatch  of  its 
business. 

i  3.  To  construct,  or  complete  and  equip,  any  railway  and  its  appendages  which  it 

is  authorized  to  lease. 

4.  To  borrow  money,  not  exceeding  its  authorized  capital  stock,  at  a  rate  of  inter- 
est not  exceeding  seven  and  three-tenths  per  cent,  per  annum,  and  execute  bonds  or 


564  Private  Corporations  in  Ohio. 


Common  Carriers  — Dock  Co's— Elevator  Go's  — Farm  Laborers'  Ass'ns,  §§  3839-3844. 

promissory  notes  therefor,  payable  in  gold  or  lawful  money,  in  sums  of  not  less  than 
one  hundred  dollars,  and  secure  the  payment  thereof  by  mortgage  or  pledge  of  its 
property  then  or  thereafter  acquired,  and  its  income  and  franchises,  including  the 
franchise  to  be  a  corporation;  but  no  mortgage  bonds  shall  be  sold  at  less  than  par  in 
lawful  money,  without  the  consent  of  a  majority  in  interest  of  the  stockholders,  given 
at  a  meeting  of  the  stockholders,  or  in  writing.      (April  12,  1877,  74  v.  84,  §  4.) 

§  3839.  ANY  COMPANY  MAY  SUBSCRIBE  TO  ITS  STOCKS.— Any  company 
incorporated  or  organized  under  the  laws  of  this  state  may  subscribe  for  or  become  the 
owner  of  stock  in  such  corporation;  but  before  any  such  subscriptions  shall  be  made, 
the  directors  of  the  company  subscribing  shall  be  authorized  to  make  the  same  by  a 
vote  of  the  majority  in  interest  of  its  stockholders,  or  obtain  their  consent  thereto  in 
writing.      (April  12,  1877,  74  v.  84,  §  9.) 

§  3840.  DOCK  COMPANIES.  —  A  company  organized  for  the  purpose  of  con- 
structing and  establishing  docks  in  and  adjacent  to  any  of  the  navigable  waters  in  or 
bordering  upon  this  state,  may  construct  or  purchase  any  dock  or  docks,  and  erect 
thereon  any  structure  suitable  for  receiving,  storing,  and  delivering  produce,  and 
goods  of  whatever  description,  and  may  repair  and  protect  such  dock  or  docks  and 
structures,  and  sell  the  same  in  such  manner  as  may  be  prescribed  by  the  by-laws  of 
the  company.     (March  16,  1865,  62  v.  43,  §  4.) 

§  3841.  ELEVATOR  COMPANIES.  —  A  company  or  association  organized  as  an 
elevator  company  may  purchase  and  hold  real  and  personal  estate,  erect  or  purchase, 
and  own,  the  necessary  buildings,  offices,  and  machinery  for  the  purpose  of  carrying 
on  the  business  of  receiving,  storing,  delivering  and  forwarding  grain  of  all  kinds, 
may  add  to  and  connect  with  the  same  the  business  of  general  storage,  warehouse- 
man, and  forwarders  of  all  kinds  of  produce  and  merchandise,  but  shall  not,  on  its 
own  account,  nor  for  others,  deal  as  buyers  or  sellers;  and  in  the  prosecution  of  its 
business  it  shall  be  governed  by  the  same  laws,  not  inconsistent  with  this  section, 
which  govern  individuals  in  such  employment.      (March  29,  1867,  64  v.  85,  §  3.) 

§  3842.  WHEN  RAILROAD  COMPANY  MAY  TAKE  STOCK  IN  SUCH  COM- 
PANY. —  When  any  such  company  erects  or  owns  an  elevator  building,  and  uses  the 
same  for  the  purpose  of  receiving  or  delivering  grain  from  or  to  any  railroad  company, 
as  freight  carried  or  to  be  carried  over  its  roads,  or  any  part  thereof,  such  railroad 
company  may  subscribe  to  or  purchase  shares  in  the  capital  stock  of  the  elevator 
company,  to  an  amount  not  exceeding  one-third  of  the  entire  capital  stock  of  the 
elevator  company,  in  the  name  of  its  president  or  other  officer,  and  hold  the  same  as 
trustee,  and  shall  be  liable  upon  such  stock,  in  its  corporate  capacity,  to  the  same 
extent  and  in  the  same  manner  as  in  the  case  of  a  natural  person.  (March  29,  1867, 
64  v.  85,  §  4.) 

§  3843.  EARM  LABORERS'  ASSOCIATION.  —  No  association  incorporated  for 
•  the  purpose  of  promoting  the  interests  of  agriculture,  and  for  the  relief  of  distressed 
farm  laborers,  or  their  widows  and  orphans,  whether  such  widows  and  orphans  are 
members  of  such  association  or  not,  and  for  any  other  charitable  purpose,  shall  take 
or  hold  any  real  estate,  except  such  as  may  be  actually  occupied  in  the  exercise  of  its 
legitimate  business,  and  such  as  it  may  acquire  in  securing  for  or  satisfaction  of  debts 
justly  due  it;  but  real  estate  so  occupied  shall  not  in  any  case  exceed  in  value  the  sum 
of  fifty  thousand  dollars.     (May  7,  1877,  74  v.  204,  §  5.) 

§  3844.  WHAT  INVESTMENT  IT  MAY  MAKE.  —  Such  associations  shall,  after 
paying  their  expenses,  invest  their  funds  exclusively  for  the  purposes  mentioned  in 
their  articles  of  incorporation,  and  may  invest  the  same  in  mortgages  upon  real  estate, 


Powers  of  Certain  Corporations.  565 


Farm  Laborers'   Ass'ns  —  Ferry   Co's  —  Firemen's   Relief   Ass'ns,    §S   3845-3850. 

or  in  county,  state,  or  United  States  securities;  they  may,  in  their  articles  of  incorpo- 
ration, designate  the  kinds  of  securities  in  which  their  funds  shall  be  invested,  in 
which  case  no  part  thereof  shall  be  invested  in  securities  other  than  those  named 
therein;  but  they  shall  not  make  any  loan  to  any  of  their  trustees  or  officers;  and 
they  may  take  by  gift,  subscription,  purchase,  devise,  or  loan;  but  no  loan  shall  be 
taken  for  a  less  term  than  three  years  nor  for  a  greater  term  than  twenty  years,  nor 
to  an  amount  exceeding  one  hundred  thousand  dollars,  nor  at  a  rate  of  interest  greater 
than  four  per  centum,  payable  semi-annually.     (May  7,  1877,  74  v.  204,  §  6.) 

§  3845.  MUST  REPORT  TO  ATTORNEY-GENERAL.  —  Every  such  association 
shall  make,  annually,  and  transmit  to  the  attorney-general,  under  the  signatures  of 
a  majority  of  the  trustees,  attested  by  the  clerk,  a  full  and  true  statement  of  its  con- 
dition and  affairs;  and  for  any  willful  neglect  to  make  such  report  within  one  month 
after  its  annual  meeting,  the  attorney-general  may  proceed  against  such  association 
for  the  forfeiture  of  its  charter  for  such  neglect.     (May  7,   1877,  74  v.  204,  §  7.) 

§  3846.  CONSOLIDATION  OF  TWO  ASSOCIATIONS.  —  Any  unincorporated 
association  or  society  organized  for  any  purpose  named  in  section  thirty-eight  hun- 
dred and  forty-three  may  be  consolidated  with  an  association  incorporated  for  a  pur- 
pose named  therein,  by  a  resolution  of  each,  adopted  by  not  less  than  two-thirds  of  its 
members,  at  a  meeting  called  for  that  purpose;  such  resolutions,  and  the  votes 
thereon,  shall  be  recorded  by  the  clerk  of  the  corporate  association,  and  the  consoli- 
dated association  shall  thereupon  assume  the  name  or  title  of  the  corporate  associa- 
tion, and  be  entitled  to  all  its  privileges;  but  the  members  of  the  consolidated 
association  shall  not  be  liable  for  the  debts  or  obligations  of  the  unincorporated  asso- 
ciation or  society.      (May  7,   1877,  74  v.  204,  §  8.) 

§  3847.  ATTORNEY-GENERAL  TO  REPORT  ANNUALLY.  —  The  attorney- 
general  shall,  annually,  report  to  the  general  assembly,  in  a  condensed  form,  the 
number  and  condition  of  such  associations,  as  derived  from  the  annual  reports  of  the 
trustees.      (May  1,   1877,  74  v.   204,  §  9.) 

§  3848.  MAY  MAINTAIN  LIBRARIES,  ETC.  —  All  such  incorporated  associa- 
tions may  keep  and  maintain  libraries,  and  a  museum  of  art  consisting  of  models  of 
such  improved  instruments  and  machinery  as  are  best  calculated  to  promote  the  inter- 
ests of  agriculture,  for  the  benefit  of  such  associations,  under  such  rules  and  regula- 
tions as  its  members  from  time  to  time  adopt,  and  may  make  all  needful  by-laws  for 
the  good  government  and  regulation  of  the  same.      (May  1,  1877,  74  v.  204.  g   11.) 

§  3849.  FERRY  COMPANIES.  —  A  corporation  organized  for  the  purpose  of 
carrying  on  the  ferry  business  on  any  of  the  water-courses  in  this  state,  or  bordering 
thereon,  may  build,  purchase,  and  hold  steam  ferry-boats,  and  other  vessels  and  floats, 
real  estate,  landings,  wharves,  docks,  and  other  property,  in  this  state  or  elsewhere, 
deemed  advisable  and  proper  to  carry  on  its  business,  buy  or  lease,  and  use,  let,  or 
otherwise  dispose  of  the  same,  or  any  part  thereof,  in  such  manner  as  it  deems  advis- 
able, carry  on  the  ferry  business  at  the  place  named  in  its  articles  of  incorporation, 
transport  persons  and  property,  and  receive  such  compensation  therefor  as  may  be 
lawful,  and  shall  be  governed  by  the  laws  that  govern  natural  persons  in  such  employ- 
ments.    (April  11,   1865,  62  v.   114,   §  4.) 

§  3850.  FIREMEN'S  RELIEF  ASSOCIATION. — An  association  of  members  of 
any  regular  fire,  hose,  or  hook  and  ladder  company,  incorporated  for  the  purpose  of 
affording  relief  to  firemen  disabled  while  on  duty,  and  making  donations  to  indigent, 
sick  firemen,  and  to  the  widows  and  orphans  of  deceased  firemen,  may  provide  for  the 
election  of  its  directors  or  trustees  at  separate  elections,  to  be  held  by  the  members 


566  Private  Corporations  in  Ohio. 


Firemen's  Relief  Ass'ns  —  Fishery  Co's  —  Waterway  Co's  —  Mf g.  Co's,  §§  3851-3856. 

in  good  and  regular  standing  of  each  fire,  hose,  or  hook  and  ladder  company  who  are 
members  of  the  corporation,  and  fix  the  number  to  be  elected  by  each  such  company. 
(March  13,  1861,  58  v.  37,  §§  1,  5,  6.) 

§  3851.  CERTAIN  POWERS  OF  SUCH  ASSOCIATIONS,  —  Such  corporations 
may  decide  what  officers  they  will  have;  and  prescribe  the  manner  of  their  election, 
and  their  duties,  may  make  regulations  for  the  relief  of  firemen  disabled  while  on 
duty,  and  provide  for  such  entrance  fee  for  members,  and  such  weekly,  monthly,  or 
yearly  assessment  upon  members,  as  it  deems  best.     (March  13,  1861,  58  v.  37,  §  6.) 

§  3852.  THEIR  POWER  TO  ACQUIRE  AND  DISPOSE  OF  PROPERTY.  —  Such 
corporation  may  acquire,  hold,  enjoy,  dispose  of,  and  convey  all  property,  real  or  per- 
sonal, which  it  may  acquire  by  purchase,  contribution,  donation,  assessment  upon  its 
members,  or  otherwise,  for  the  purpose  of  carrying  out  the  objects  of  the  corporation, 
but  it  shall  not  acquire  or  hold  property  for  any  other  purpose;  and  for  the  purpose  of 
increasing  its  funds  it  may  loan  its  money  upon  bond  and  mortgage,  under  such  rules 
and  regulations  as  may  be  prescribed,  and  at  an  annual  interest  not  exceeding  six 
per  cent,  per  annum.     (March  13,  1861,  58  v.  37,  §  5.) 

§  3853.  FISHERY  COMPANIES. — When  a  company  organized  for  the  purpose 
of  propagating  fish  and  establishing  fisheries  in  this  state  acquires  the  right  to  use 
any  stream,  canal,  or  reservoir,  from  the  owner  of  the  land  adjoining  thereto,  for  the 
establishment  of  a  fishery  to  be  owned,  maintained,  and  used  for  the  purpose  of  propa- 
gating fish,  no  person  shall  fish  therefrom  without  first  obtaining  authority  from  such 
company;  and  a  person  who  violates  the  provisions  of  this  section  shall  be  liable  to 
such  company  in  trespass,  or  to  such  fines  as  may  be  authorized  by  law  against  per- 
sons trespassing  upon  lands;  but  the  navigable  streams  and  public  canals  in  this 
state  shall  not  be  subject  to  the  provisions  of  this  section,  and  nothing  in  this  section 
shall  be  so  construed  as  to  prohibit  the  privilege  of  any  person  to  use  or  fish  from  any 
lake,  river,  stream,  or  reservoir  which,  by  custom  or  usage,  has  been  used  for  the  pur- 
pose of  fishing  therefrom  as  regulated  by  law.      (January  15,  1873,  70  v.  9,  §§  2,  6.) 

§  3854.  COMPANIES  FOR  IMPROVEMENT  OF  NAVIGABLE  STREAMS.— 
The  directors  of  a  company  incorporated  for  the  purpose  of  improving  any  stream  of 
water,  or  any  part  thereof,  declared  navigable  by  any  law  of  this  state,  may  prescribe 
the  rates  of  toll  the  company  shall  be  entitled  to  receive  for  the  passage  of  any  boat 
or  other  watercraft  through  any  lock  upon  such  improvement,  or  for  the  running  of 
any  boat  or  other  watercraft  between  the  locks  on  the  same.  (April  6,  1859,  56  v. 
239,  §  7.) 

§  3855.  MANUFACTURING  COMPANIES  MUST  KEEP  CERTAIN  ACCOUNTS. 
—  Every  manufacturing  company  shall  establish  and  keep,  at  some  place  within  one 
of  the  counties  in  which  its  business  is  carried  on,  a  principal  office,  at  which  shall  be 
kept  accurate  accounts  exhibiting  the  financial  condition  of  the  corporation,  and  of  its 
capital  stock  or  shares,  and  of  all  its  property  of  every  description,  and  credits,  sub- 
ject to  taxation,  which  accounts  shall  at  all  times  be  subject  to  the  inspection  of  any 
assessor  lawfully  authorized  to  assess  such  property  and  credits;  notice  of  the  place 
where  such  office  is  established,  and  of  any  change  thereof,  shall  be  published  in  some 
newspaper  of  general  circulation  in  such  county;  and  the  principal  accounting  officer 
of  such  company  shall  be  a  resident  of  this  state.     (March  30,  1857,  54  v.  72,  §  82.) 

Construction.  ,,„««,  n 

See   Mercantile    Trust    Co.    v.    Etna   Iron    Works,    4    O.    C.    C.    5/9,    587    (1890);    s.    c,    2 

C.  D.  718. 

§   3856.     MAY  EXTEND  THEIR  OPERATIONS.  —  A  company  incorporated  for 
manufacturing  purposes  may,  upon  a  vote  of  the  holders  of  a  majority  of  its  stock, 


Powers  of  Certain  Corporations.  567 


Iron  Co's  —  Market-house  Co's  —  Mining  and  Manufacturing  Co's,  §§  3857  3862. 


extend  its  manufacturing  operations  to  articles  in  the  same  line  of  business  that  are 
not  authorized  by  the  terms  of  the  original  articles  of  incorporation;  and  after  mak- 
ing a  certificate  of  such  vote,  and  specifying  therein  how  far  the  manufacturing 
operations  are  to  be  extended,  verified  by  the  oath  of  its  president,  and  filing  the  same 
in  the  office  of  the  secretary  of  state,  such  company  may  manufacture  and  sell  such 
articles  as  shall  be  named  or  otherwise  provided  for  in  such  certificate.  (April  19, 
1861,  58  v.  58,  §  1.) 

§  3857.  COMPANY  TO  MANUFACTURE  IRON"  MAY  MAKE  STEEL.  —  Any 
company  incorporated  for  manufacturing  iron  may,  upon  a  vote  of  the  holders  of  a 
majority  of  its  stock,  engage  in  and  carry  on  the  business  of  manufacturing  steel  in 
its  various  branches.     (April  2,  1866,  63  v.  67,  §  1.) 

§  3858.  MARKET-HOUSE  COMPANIES.  —  A  company  incorporated  for  the  pur- 
pose of  constructing  and  maintaining  a  market-house  may  construct,  erect,  establish, 
and  maintain,  at  the  place  named  in  its  articles  of  incorporation,  a  suitable  building 
or  buildings  to  be  appropriated  and  used  exclusively  as  a  public  market-house,  for 
the  sale  and  vending  of  meats,  vegetables,  and  all  other  kinds  of  provisions,  and  of 
fruits,  plants,  and  flowers,  and  all  other  articles  commonly  sold  and  vended  in  public 
market-houses  or  spaces,  on  market  days,  in  market  hours.  (April  19,  1861,  58 
v.  92,  §§  1,  2.) 

§  3859.  POWERS  OE  SUCH  COMPANIES.  —  Such  companies  may  rent,  lease, 
sell,  or  dispose  of  stalls,  cellar  vaults,  or  other  divisions  or  spaces  in  their  buildings, 
in  such  manner,  and  upon  such  terms,  and  conditions,  as  the  directors  shall  determine; 
but  a  uniform  rule  in  renting  or  leasing  such  stalls,  cellar  vaults,  or  other  divisions 
or  spaces,  shall  be  established,  printed,  and  hung  in  conspicuous  places  in  the  build- 
ings, and  the  same  may  be  changed,  from  time  to  time,  by  the  directors  thereof;  and 
no  preference  shall  be  made,  by  any  variation  or  difference  in  rates  or  prices,  in  favor 
of  citizens  of  the  city  or  village  wherein  the  buildings  are  erected,  and  against 
farmers,  butchers,  or  producers  not  residing  in  such  city  or  village,  and  no  rule,  regu- 
lation, order,  or  condition  shall  be  made  or  exacted  by  any  company  to  prevent 
farmers,  butchers,  or  other  persons  from  disposing  of  their  produce,  meats,  vegetables, 
or  other  articles,  in  such  quantities  and  upon  such  terms  as  they  may  deem  proper; 
but  such  companies  shall  prohibit  and  prevent  in  their  buildings  the  use  of  false 
weights  or  measures,  the  exposure  or  sale  of  any  diseased  or  decaying  meats  or 
vegetables,  and  any  offensive  or  injurious  articles.      (April  19,  1861,  58  v.  92,  §  5.) 

§  3860.  MAY  KEEP  STREETS  UNOBSTRUCTED.  —  Such  companies  may  keep 
the  streets,  alleys,  or  avenues  in  front  of  their  buildings  free,  open,  and  clear  of  any 
and  all  obstruction  from  stoppage  of  wagons,  carriages,  or  vehicles  of  any  kind,  or  of 
horses,  mules,  or  cattle,  on  market  days,  in  market  hours.  (April  19,  1861,  58  v. 
92,  §  6.) 

§  3861.  MAY  CONSTRUCT  SEWERS. —When  any  such  company  erects  its 
buildings  in  a  city  or  village  having  a  sewer  with  which  the  company  may  connect 
sewers  of  its  own  construction  sufficient  to  drain  its  buildings,  it  shall  construct  such 
sewers,  and  so  connect  them;  and  in  cities  and  villages  not  having  sewers,  such  com- 
panies may  construct  sewers  for  the  drainage  of  their  buildings,  and  charge  and 
receive  a  compensation  for  the  tapping  and  use  of  the  same,  or  portions  thereof. 
(March  13,  1861,  58  v.  92,  §  7.) 

§  3862.     POWERS  OF  MINING  AND  MANUFACTURING  CORPORATIONS.  — 

Any  company  heretofore  incorporated  or  that  may  hereafter  be  incorporated  under  the 
laws  of  this  state,  for  the  purpose  of  mining  or  boring  for  petroleum  or  rock  oil,  or  coal 


568 


Private  Corporations  in  Ohio. 


Mining  and  Manufacturing  Companies,  §§  3863-3866. 


oil,  salt  or  other  vegetable,  medicinal  or  mineral  fluid,  in  the  earth,  or  for  refining  or 
purifying  the  same,  quarrying  stone,  marble,  or  slate,  mining  coal,  iron,  copper,  lead 
or  other  minerals,  or  manufacturing  the  same,  or  engaged  in  the  manufacturing  of 
articles  composed  in  the  whole  of  iron  or  part  of  iron  and  wood,  or  for  manufacturing 
cotton  or  woolen  fabrics  in  whole  or  in  part,  or  both,  and  carrying  on  business  con- 
nected with  the  main  objects  of  such  corporation  may,  in  its  corporate  name,  take, 
hold,  and  convey  such  real  estate  and  personal  estate  as  is  necessary  or  convenient  for 
the  purpose  for  which  it  was  incorporated,  and  may  carry  on  its  business,  or  so  much 
thereof  as  is  convenient,  in  any  county  in  this  state,  or  beyond  the  limits  of  this  state, 
and  may  there  hold  any  real  or  personal  estate  necessary  or  convenient  for  conducting 
the  same.  (March  26,  1883,  80  v.  76;  R.  S.  1880;  April  13,  1874,  71  v.  69,  §  1;  April 
13,  1865,  62  v.  143,  §  1.) 

§  3863.     MAY  SUBSCRIBE  FOR  STOCK  IN  TRANSPORTATION  COMPANIES. 

—  The  directors  of  any  such  company  may  authorize  its  president,  or  other  proper 
officer,  to.purchase  or  subscribe  for,  in  the  name  of  the  company,  such  an  amount  of 
the  stocks  of  any  railroad,  or  other  transportation  company,  as  they  deem  necessary, 
in  order  to  procure  proper  facilities  for  transportation  for  the  manufactories,  mines,  or 
other  works  of  the  company;  but  the  written  consent  of  the  holders  of  two-thirds  the 
capital  stock  of  the  company  to  such  subscription  or  purchase  must  first  be  had. 
(April  13,  1874,  71  v.  69,  §  2.) 

May  mortgage  property  to  aid  railroad. 

See  Central  Trust  Co.  v.  Columbus,  etc.,  Ry.  Co.,  87  Fed.   815    (1898). 

§  3864.  CERTAIN  COMPANIES  MAY  CONSOLIDATE.  —  Any  two  or  more  such 
corporations  may  be  consolidated  in  the  manner  and  to  the  effect  provided  in  sections 
thirty-three  hundred  and  eighty-one  and  thirty-three  hundred  and  eighty-two. 
(April  3,  1868,  65  v.  50,  §  1.) 

Consolidation  of  street-railroad  companies. 

See  §  2505b  and  §   33S0. 

§  3865.  CERTAIN  CONVEYANCES  MUST  BE  MADE.  —  When  such  agreement 
for  consolidation  has  been  duly  ratified  in  the  manner  specified  in  the  preceding  sec- 
tion, the  president  and  secretary  of  the  company  which,  by  the  agreement,  surrenders 
its  name,  properties,  rights,  and  franchises,  shall  execute  and  deliver  to  the  consoli- 
dated corporation  proper  deeds,  assignments,  and  transfers,  conveying  to  the  con- 
solidated corporation  all  of  the  rights,  property,  and  effects  of  the  corporation  so 
surrendering  its  name  and  property,  and  from  and  after  the  execution  of  such  trans- 
fers the  corporation  so  agreeing  to  surrender  its  name  and  rights  shall  cease  to  be  a 
corporation,  and  to  exercise  corporate  rights.     (April  3,  1868,  65  v.  50,  §  4.) 

§  3866.  MAY  BUILD  A  RAILROAD.  —  Companies  organized  for  the  purpose  of 
mining,  quarrying,  or  manufacturing,  may,  when  such  purpose  is  stated  in  the  arti- 
cles of  incorporation,  construct  a  railroad,  with  a  single  or  double  track,  with  such 
side-tracks,  turnouts,  offices,  and  depots  as  they  deem  necessary  to  carry  out  the 
objects  of  the  incorporation,  from  any  mine,  quarry,  or  manufactory,  to  any  other 
railroad,  or  any  canal,  slack-water  navigation,  or  other  navigable  water  or  place 
within  or  upon  the  borders  of  this  state,  and  shall,  in  respect  to  such  railroad,  be  sub- 
ject to  and  governed  by  the  provisions  of  chapter  two.      (April  8,  1856,  53  v.  103,  §  3.) 

Application    of    §    3311     to    such    corn- 


Appropriation  of  land. 

This  act  does  not  authorize  such  mining 
companies  to  appropriate  lands. —  Miami  Coal 
Co.  v.  Wigton,  19  Oh.  St.  560  (1869). 

Branch   roads  to  mines,  etc. 

See  §  3280. 


pames. 

See  §  3311,  note;   but  as  to  manufacturing 
companies,  see,  also,  §  3855. 

Stock-yard    companies    may    lease   rail- 
road. 

See  §   3876. 


Powers  of  Certain  Corporations.  b69 


Mining   Companies  —  Museum,    Park,    Rink,    etc.,    Companies,    §§    3867  3870. 


§  3867.  MINING  COMPANIES  MAY  ACQUIRE  ADDITIONAL  POWERS.  — 
A  company  organized  for  the  purpose  of  mining  coal,  or  for  the  purpose  of  mining 
iron  ores  and  coal,  or  a  part  of  whose  business  is  the  mining  of  iron  ores  and  coal, 
may,  upon  a  vote  of  the  holders  of  two-thirds  of  its  capital  stock,  engage  in  the 
business  of  manufacturing  iron  from  ores,  or  engage  in  any  other  branch  of  the  manu- 
facture of  iron;  but  before  it  shall  engage  in  such  manufacture  it  shall,  by  its  presi- 
dent, execute  a  certificate,  under  the  corporate  Leal  of  the  company,  setting  forth  the 
particular  branch  or  branches  of  the  manufacture  of  iron  in  which  it  purposes  to 
engage,  and  the  place  or  places  where  the  business,  or  any  part  thereof,  is  to  be  located, 
the  same  to  be  verified  by  the  oath  of  the  president,  and  acknowledged,  certified,  and 
forwarded  to  the  secretary  of  state;  and  thereupon  the  company  may  carry  on  the 
business  named  in  such  certificate,  in  addition  to  the  business  named  in  the  original 
articles  of  incorporation.     (January  24,  1877,  74  v.  21,  §   1.) 

§  3868.  MUSEUM,  PARK,  POND,  AND  RINK  COMPANIES.  —When  a  corpora- 
tion organized  for  the  purpose  of  constructing  and  conducting  a  museum  to  be  used 
for  the  exhibition  and  preservation  of  works  of  nature  and  art,  and  for  instruction  in 
connection  therewith,  or  a  public  hall  of  any  kind,  or  a  park,  pond  or  rink  to  be  used 
for  skating  or  other  lawful  sports,  or  for  holding  fairs,  festivals,  public  meetings,  con- 
certs or  entertainments  of  any  kind  not  prohibited  by  law,  provides  in  its  articles  of 
incorporation  that  its  buildings,  or  designated  part  thereof,  shall  be  devoted  to  the 
use  of  the  public  for  all  purposes  set  forth  in  its  articles,  free  from  all  costs,  charges, 
and  expense,  except  such  as  may  be  necessary  for  providing  the  means  to  keep  such 
buildings,  or  such  designated  part  thereof  and  its  grounds  in  proper  condition  and 
repair,  and  to  pay  the  expenses  of  insurance,  care,  management  and  attendance,  so 
that  the  public  may  have  the  benefit  thereof  for  all  the  legitimate  uses  set  forth  in 
its  articles  at  as  little  expense  as  possible,  and  that  no  stockholder,  subscriber,  trustee, 
director  or  member  shall  receive  any  compensation,  gain  or  profit  from  the  corporation 
for  such  public  use  of  its  buildings  or  such  designated  part  thereof,  the  authorities 
of  any  city,  village  or  county  in  which  the  corporation  is  located,  may  appropriate  to 
such  use  and  grant  the  right  and  permit  such  corporation  to  erect  and  perpetually 
maintain  its  buildings  on  any  of  the  parks,  lands,  lots  or  grounds  which,  or  the  use 
of  which  belong  to  or  are  subject  to  the  control  of  such  city,  village  or  county  or  the 
authorities  thereof,  and  to  control  the  same  on  the  terms  and  conditions  which  may  be 
agreed  upon  between  such  public  authorities  and  the  corporation;  and  in  every  such 
case  it  shall  be  lawful  for  the  public  authorities  and  the  said  corporation  to  agree 
that  additional  trustees  of  said  corporation  may  be  appointed  by  such  public  authori- 
ties, and  upon  the  number  of  such  trustees  and  the  method  of  their  appointment,  and 
they  may  agree  that  any  officer  or  officers  of  said  city,  village  or  county  to  be  desig- 
nated by  them  may  act  ex-officio  as  such  trustees.  (April  12,  1881,  78  v.  127;  R.  S. 
1880;  February  12,  1876,  73  v.  8,  S  1;  March  8,  1872,  69  v.  20,  §   1.) 

§  3869.  MAY  PROVIDE  FOR  REVERSION  OF  STOCK,  ETC.  —Such  corporation 
may  provide  in  its  organization  a  limit  as  to  the  number  of  shares  which  each  stock- 
holder may  own,  the  conditions  on  which  such  shares  may  be  held  or  transferred,  and 
for  the  reversion  thereof  to  the  corporation  in  case  of  the  death  or  disqualification  of 
a  stockholder.     (February  12,  1876,  73  v.  8,  §  2.) 

§  3870.  PENALTIES  FOR  TRESPASSES  UPON  PROPERTY  OF  SUCH  COM- 
PANIES. —  Whoever  breaks,  throws  down,  or  injures  any  gate,  fence,  inclosure, 
embankment,  or  erection  of  any  kind,  upon  the  ground  of  any  such  corporation,  or 
forcibly  or  fraudulently  passes  such  gate,  or  over  such  fence,  or  into  such  inclosure 
cr  building,  without  having  paid  the  charge  demanded  for  entry  therein,  shall,  for 
each  offense,  forfeit  to  the  party  injured  the  sum  of  twenty-five  dollars,  in  addition  to 
the  damages  resulting  from  such  wrongful  act.     (April  5,  1867,  64  v.  182,  §  7.) 


Private  Corporations  in  Ohio. 


Sewerage  Companies  —  Stock-yard   Companies,    §S   3871-3876. 


§  3871.  SEWERAGE  COMPANIES.  —  A  company  organized  for  the  purpose  of 
draining  the  streets,  alleys,  lots,  commons,  wharves,  landings,  or  buildings  of  any 
city  or  village  in  this  state,  may  construct  and  maintain  sewers  and  drains,  and  lay 
conductors  or  pipe  for  conveying  water  and  other  liquid  matter  from  the  lots,  houses, 
and  streets,  through  and  under  the  streets,  side-walks,  public  highways,  alleys,  com- 
mons, wharves,  or  landings  of  any  city  or  village  in  this  state;  upon  application  by 
such  company  the  council  of  any  city,  or  the  trustees  of  any  village,  may  grant  to 
it  the  privilege  of  exercising  its  corporate  powers  within  the  limits  of  such  city  or 
village,  for  such  term  of  years,  and  upon  such  conditions  and  limitations,  as  may  be 
deemed  expedient;  and  the  city  council,  or  the  council  of  the  village,  may  require 
from  the  company  such  reasonable  security  as  they  deem  necessary  for  the  faithful 
performance  of  the  duties  imposed  upon  it  by  law;  but  no  grant  shall  be  made  to  any 
company,  and  no  power  or  privilege  shall  be  conferred  upon  or  exercised  by  any  com- 
pany, which  will  interfere  with  the  rights  of  any  other  corporation,  or  any  person, 
and  no  person  shall  be  taxed  without  his  consent  for  any  drainage  or  sewerage  con- 
structed by  any  such  company;  and  such  companies  shall  be  liable  for  all  damages 
occasioned  by  their  acts,  neglects,  or  defaults  to  the  rights  of  persons  and  other  cor- 
porations.     (April  8,   1856.  53  v.   137,  §  5.) 

§  3872.  WHEN  MUNICIPALITY  MUST  BUY  OUT  COMPANY.  —  When  a  city 
or  village  which  has  granted  to  any  such  company,  for  any  term,  the  rights  and 
privileges  mentioned  in  the  preceding  section,  and,  at  the  expiration  of  the  term,  fails 
or  refuses,  upon  petition  of  the  company,  to  renew  the  grant,  the  city  or  village  shall 
purchase  of  the  company  its  property,  consisting  of  sewers,  drains,  and  pipes  actually 
laid  and  constructed,  with  the  appurtenances,  and  the  materials  and  fixtures  apper- 
taining to  the  same,  on  hand  at  the  time  of  the  expiration  of  such  terms,  at  a  price 
not  exceeding  the  actual  cost  thereof,  for  the  use  and  benefit  of  the  city  or  village. 
(April  8,  1856,  53  v.   137,  §  5.) 

§  3873.  MUNICIPALITY  MAY  CONTRACT  WITH  COMPANY.  — The  council  of 
any  city,  or  the  council  of  any  village,  in  which  any  such  company  is  organized,  may 
contract  with  the  company  for  the  construction  and  use  of  such  sewers  or  drains,  for 
draining  the  streets,  alleys,  lots,  commons,  wharves,  or  grounds  within  the  limits 
of  the  municipal  corporation;  and  the  city  or  village  shall  not  use  such  sewers  or 
drains  in  any  manner  except  by  and  with  the  consent  of  the  company,  and  in  the 
manner,  and  upon  the  terms  and  conditions,  which  are  mutually  agreed  upon  by  the 
company  and  the  city  or  village.     (April  8,  1856,  53  v.  137,  §  6.) 

§  3874.  COMPANIES  MAY  PRESCRIBE  RATES.  —  Such  companies  may  pre- 
scribe the  terms  upon  which  owners  and  occupants  of  houses  or  lots  may  obtain  the 
use  of  their  sewers  and  drains  for  private  purposes,  and  the  rate  of  charge  annually 
for  such  use,  and  also  the  terms  upon  which  the  city  or  village  may  use  the  sewers 
and  drains  for  public  purposes.     (April  8,  1856,  53  v.  137,  §  7.) 

§  3875.  POWERS  OF  MUNICIPALITIES  NOT  LIMITED.  —Nothing  in  the  four 
preceding  sections  shall  be  construed  to  prevent  any  city  or  village  from  constructing 
sewers,  or  establishing  and  maintaining  a  system  of  sewerage,  under  the  direction 
and  by  the  authority  of  the  municipal  authorities  thereof,  not  interfering,  however, 
with  the  work  of  such  company.      (April  8,  1856,  53  v.  137,  §  8.) 

§  3876.  STOCK-YARD  COMPANIES.  —  A  company  incorporated  for  the  purpose 
of  purchasing  or  leasing  real  estate,  and  erecting  thereon  pens  and  buildings  for  trie 
safe  keeping  of  live  stock  intrusted  to  it  on  sale,  may  lease  or  purchase,  and  operate, 
such  portion  of  any  railway  leading  to  or  connected  with  its  stock-yards  as  may  be 
necessary  for  the  convenient  dispatch  of  its  business;  but  the  number  of  miles  so 


Powers  of  Certain  Corpora]  ions. 


571 


Transportation  Companies  —  Pipe  Line  Companies,   SS   3877,  3878. 


leased  or  purchased  shall  not  exceed  thirty,  and  such  lease  or  purchase  shall  not  be 
made  without  the  consent  of  the  holders  of  a  majority  of  the  stock  in  such  company, 
and  in  the  company  leasing  or  selling  such  railway.      (April  3,  1876,  73  v.  162,  §  3.) 


§  3877.  TRANSPORTATION  COMPANIES.  —  A  company  organized  for  the  pur- 
pose of  transporting  freight,  or  for  towing  purposes,  on  any  of  the  navigable  rivers 
of  this  state,  or  the  lakes  and  navigable  rivers  bordering  thereon,  may  build,  pur- 
chase, and  hold  such  number  of  steamboats,  barges,  or  other  vessels,  and  such  other 
personal  property,  and  such  real  estate,  in  this  and  other  states,  as  it  deems  necessary 
for  commencing  and  conducting  its  business,  and  may  sell  the  same,  or  any  part 
thereof,  in  such  manner  and  for  such  purpose  as  may  be  prescribed  by  the  rules  and 
regulations  of  the  company,  not  inconsistent  with  the  laws  of  this  state;  and  the 
company  may  carry  any  articles  of  freight  or  produce,  tow  any  barge  or  other  vessel 
upon  any  of  the  navigable  streams  in  this  state,  and  on  any  of  the  lakes  or  navigable 
rivers  bordering  thereon,  and  shall  be  governed  by  the  same  laws,  not  inconsistent 
with  this  section,  which  govern  individuals  in  such  employments.  (Apiil  3,  1876, 
73  v.   162.) 

§  3878.  COMPANIES  FOR  TRANSPORTATION  OF  NATURAL  GAS,  OIL,  OR 
WATER;  RIGHT  OF  EMINENT  DOMAIN;  HOW  RIGHT  TO  OCCUPY  PUBLIC 
WAYS  MAY  BE  ACQUIRED;  FILLING  IN  EXCAVATIONS;  FOR  WHAT  PUR- 
POSES SUCH  COMPANIES  ARE  COMMON  CARRIERS  — A  municipal  corporation 
or  a  company  organized  for  the  purpose  of  transporting  natural  gas,  petroleum,  or 
water  through  tubing  or  pipes  or  for  the  purpose  of  storing  and  transporting  water, 
may  enter  upon  any  land  for  the  purpose  of  examining  and  surveying  a  line  for  its 
tubing  and  pipes,  or  for  a  reservoir,  and  may  appropriate  so  much  thereof  as  may  be 
deemed  necessary  for  the  laying  down  of  such  tubing  and  pipes,  and  for  the  erection 
of  tanks,  and  reservoirs  for  the  storage  of  water  for  transportation,  and  the  location 
of  stations  along  such  line,  and  the  erection  of  such  buildings  as  may  be  necessary 
for  the  purpose  aforesaid;  such  appropriation  shall  be  made  and  conducted  in  accord- 
ance with  the  law  providing  for  compensation  to  the  owners  of  private  property  appro- 
priated to  the  use  of  corporations;  and  so  far  as  the  rights  of  the  public  therein  are 
concerned,  the  county  commissioners  as  to  county  and  state  roads,  the  township 
trustees  as  to  township  roads,  and  the  council  of  municipal  corporations  as  to  streets 
and  alleys,  in  their  respective  jurisdiction,  may, '  subject  to  such  regulations  and 
restrictions  as  they  may  prescribe,  grant  to  such  company,  the  right  to  lay  such  tub- 
ing and  pipe  therein;  provided,  however,  the  right  to  appropriate  for  any  of  the  pur- 
poses hereinabove  specified,  shall  not  include  or  extend  to  the  erection  of  any  tank, 
station,  reservoir,  or  building,  or  lands  therefor,  or  to  more  than  one  continuous  pipe, 
or  tubing,  or  land  therefor,  in  or  through  a  municipal  corporation,  without  the 
council  first  consent  thereto;  provided,  however,  that  no  reservoirs  for  the  storags 
and  transportation  of  water  shall  be  constructed  within  the  corporate  limits  of  any 
municipal  corporation,  or  any  public  park,  and  all  excavations,  except  reservoirs  for 
storage  and  transportation  of  water  shall  be  well  filled  by  such  company  and  so  kept 
by  it,  in  all  cases,  and  such  company  shall,  for  the  purpose  of  transporting  natural 
gas,  oils  and  water,  be  considered  and  held  to  be  a  common  carrier,  and  subject  to  all 
the  duties  and  liabilities  of  such  carriers  under  the  laws  of  this  state.  (March  24. 
1888,  85  v.  114,  115;  R.  S.  1880;  March  30,  1875,  72  v.  151,  §§  1,  2;  April  29,  1872, 
69  v.  194,  §  4;  April  16,  1900,  94  v.  382.) 

Does  not  include  citv  water  works.  it   may   counterclaim    for   the   agreed   charges 

See  State  ex  rel.  v.  Salem  Water  Co..  5  O.     for   storage   and    evaporation.— Cow   Run   Co. 

C    C    58   (1890)  v.  Lehmer,  41  Oh.  St.  384  (1884). 


Suit    for     conversion    of     oil;     counter- 
claim. 

When  a  company  is  sued  for  storage  of  oil, 


Riejht  to  lay  -nines  in  streets. 

See  ^  ebb  v.  Ohio  Gas  Fuel  Co.,  16  W.  L.  B. 

121   (1886). 


572  Private  Corporations  in  Ohio. 


Pipe  Line  Companies  —  Women's  Homes,  etc.— Wrecking   Companies,    §§   3879-3882. 

§  3879.  MAY  HOLD  CERTAIN  PROPERTY.  —  Any  such  company  may  take,  by 
purchase  or  otherwise,  and  hold,  such  real  and  personal  estate,  and  erect  or  purchase 
the  necessary  buildings  and  machinery  for  carrying  on  the  business,  including  all 
,the  necessary  equipments  and  appendages  of  the  business,  such  as  tubing,  pumps, 
tanks,  telegraph  apparatus,  and  engines,  as  may  be  necessary  to  transport  oils  and 
water     through  tubes  and  pipes.      (April  25,  1868,  65  v.   109,   §  2.) 

§  3880.  FURTHER  POWER  OF  SUCH  COMPANIES.  —  Any  such  company  or 
municipal  corporation  may  transport,  store,  insure  and  ship  natural  gas,  petroleum 
or  water,  and  transport  and  store  water,  for  the  purpose  of  furnishing  the  same  t& 
engineers  employed  in  developing  for,  or  in  the  production  and  transportation  of 
petroleum,  and  for  that  purpose  may  lay  down,  construct  and  maintain  the  necessary 
pipes,  tubing,  tanks,  machinery  and  arrangements.  (March  24,  1880,  85  v.  1.14,  115; 
R.  S.  1880;  March  30,  1875,  72  v.  151,  §  2;  April  16,  1900,  94  v.  382.) 

§  3881.  HOMES  FOR  AGED  AND  INDIGENT  WOMEN.  —  Corporations  desig- 
nated as  the  widows'  home,  and  asylum  for  aged  and  indigent  women,  may,  in  addi- 
tion to  the  estates,  real,  personal,  or  mixed,  which  they  are  otherwise  allowed  by  law 
to  hold,  take  by  purchase,  gift,  or  devise,  and  hold,  use,  and  dispose  of,  and  convey,  in 
all  lawful  ways,  any  estate,  real,  personal,  or  mixed,  which  may  be  convenient  or 
necessary  for  the  use  of  the  corporation,  or  for  the  investment  of  its  funds;  but  no 
part  of  such  estate,  nor  of  the  income  thereof,  shall  be  used  for  any  purpose  or  busi- 
ness other  than  in  providing  a  suitable  asylum,  the  support  and  maintenance  thereof, 
and  the  support  and  maintenance  of  such  aged  and  indigent  women  as  are  admitted 
into  the  same  under  the  by-laws  thereof.     (February  27,  1878,  75  v.  14,  §  1.) 

§  3881-1.  CONTRACT  FOR  CARE  AND  MAINTENANCE  OF  INDIGENT  DEAF 
AND  DUMB.  —  That  any  incorporated  association  organized  for  the  purpose  of  pro- 
viding a  home  for  deaf  and  dumb  persons  may  enter  into  a  contract  with  the  board 
of  county  infirmary  directors  of  any  county,  or  with  the  proper  officers  of  any  cor- 
poration infirmary,  for  the  care  and  maintenance  at  such  home  of  any  deaf  and  dumb 
person  who  may  be  an  inmate  of  said  county  or  corporation  infirmary,  or  who  may, 
under  the  laws  of  the  state,  be  entitled  to  admission  thereto.  And  in  every  such  case 
the  said  county  or  corporation  infirmary  shall,  during  the  period  such  person  may 
remain  in  such  home,  pay  to  such  association,  annually,  a  sum  equal  to  the  per  capita 
cost  of  maintaining  inmates  in  the  said  county  or  corporation  infirmary.  Provided, 
that  whenever  any  such  deaf  and  dumb  person  is  maintained  in  any  county  or  cor- 
poration infirmary  in  this  state,  and  who,  in  the  judgment  of  the  board  of  state  chari- 
ties, should  be  removed  from  such  infirmary  to  a  home  organized  under  provision  of 
this  section,  that  said  board  of  state  charities  may  order  the  removal  of  said  person 
from  said  infirmary  to  said  home;  and  where  any  such  person  is  removed  on  the  order 
of  said  board  of  state  charities  from  an  infirmary  to  said  home,  then  the  transporta- 
tion of  said  person  to  said  home  and  his  (or  her)  maintenance  shall  be  paid  by  the 
infirmary  directors  of  said  county  infirmary  or  the  proper  officers  of  said  corporation 
infirmary  as  heretofore  provided  in  this  section.  (April  22,  1898,  93  v.  212;  April 
27,  1896,  92  v.  419;   April  16,  1900,  94  v.  369.) 

§  3882.  WRECKING  COMPANIES. — Any  company  or  association  organized  for 
the  purpose  of  wrecking  boats  and  vessels,  and  saving  the  same,  and  the  property 
thereon,  or  property  lost  by  damage  or  injury  to  boats  or  vessels,  may  build,  purchase, 
and  hold  such  number  of  boats,  vessels,  diving-bells,  and  other  appliances  and  prop- 
erty as  it  deems  necessary  for  commencing  and  conducting  the  business  of  the  asso- 
ciation, and  may  sell  and  dispose  of  the  same,  or  any  part  thereof,  and  contract  for 
salvage  or  compensation  for  saving  boats,  vessels,  and  other  property,  and  demand, 
recover,  and  receive  salvage,  or  such  compensation  when  entitled  thereto  by  contract 


Powers  of  Certain  Corporations. 


Fruit  Co  s  —  Embalm'g  Co's  —  Build'g  Co's  — Cincin'ti  Orphan  Asy'm,  SS  3883  3884-1. 

or  otherwise,  and  shall  be  governed  by  the  same  laws  not  inconsistent  with  this  sec- 
tion which  govern  individuals  in  such  business  or  employment.  (March  11,  18G7, 
64  v.  44,  §§  2,  4.) 

§  3883.  FKUIT  COMPANIES.  —  Any  companies  organized  for  the  purpose  of 
cultivating,  canning,  shipping,  and  dealing  in  fruit,  may  purchase,  hold,  and  convey 
real  and  personal  property  for  the  purpose  of  conducting  and  carrying  out  the  objects 
of  the  company,  and  may  hold  the  same  without  the  state. 

§  3884.  COMPANIES  FOR  PROTECTING  AND  PRESERVING  DEAD  BODIES. 
—  Any  association  organized  for  the  purpose  of  preserving  and  protecting  bodies 
of  deceased  persons  before  burial  may  purchase,  or  take  by  devise,  or  gift,  hold,  and 
convey  real  estate,  not  exceeding  one  acre  of  land,  and  may  erect  thereon  suitable 
buildings,  and  construct  and  maintain  vaults,  and  such  other  appliances  as  may  be 
necessary  to  carry  out  the  objects  of  such  association,  and  such  property  shall  be 
exempt  from  execution,  from  taxation,  and  from  being  appropriated  to  any  other 
public  purpose,  if  used  exclusively  for  the  purposes  herein  described. 

§  3884a.  AUTHORIZING  CERTAIN  CORPORATIONS  TO  PURCHASE  OR 
LEASE  REAL  ESTATE.  —  A  corporation  organized  for  the  purpose  of  constructing 
and  maintaining  buildings  to  be  used  for  hotels,  store-rooms,  offices,  ware-houses, 
factories,  shall  be  authorized  to  acquire  by  purchase  or  lease,  and  to  hold,  use,  mort- 
gage and  lease  all  such  real  estate  or  personal  property  as  may  be  necessary,  for  the 
purpose  herein  before  mentioned;  provided,  however,  that  no  such  corporation  shall 
acquire  or  mortgage  any  real  or  leasehold  estate,  or  lease  the  same  for  a  period  exceed- 
ing (with  all  privileges  of  renewal)  the  term  of  five  years,  without  the  consent  of  the 
holders  of  two-thirds  of  the  stock,  obtained  at  a  meeting  called  for  that  purpose, 
written  notice  of  which  shall  have  been  given  to  each  stock-holder,  either  personally, 
or  deposited  in  the  post-office,  properly  addressed  and  duly  stamped,  not  less  than  ten 
days  before  the  day  fixed  for  such  meeting.  Nothing  herein  shall  be  construed  as 
authorizing  corporations  to  buy  and  sell,  cr  to  deal  in  real  estate  for  profit.  (April 
15,  1889,  86  v.  375,  376.) 

General  power  to   hold  real   estate. 

See  §  3239,  notes. 

§  3884-1.  Sec.  1.  CINCINNATI  ORPHAN  ASYLUM;  INCREASE  IN  NUMBER 
OF  MANAGERS;  SAME  TO  BE  CLASSIFIED;  ANNUAL  ELECTION;  POWER  TO 
REQUIRE  INCREASED  OR  DIMINISHED  NUMBER  OF  MANAGERS.  —  In  any 
city  of  the  first  class  and  of  the  first  grade  of  such  class,  any  orphan  asylum  therein 
legally  named  and  known  as  the  Cincinnati  Orphan  Asylum,  incorporated  and  con- 
ducted under  the  act  of  Jan.  25,  1833,  to  establish  an  orphan  asylum  in  Cincinnati, 
which  asylum  was  created  before  the  present  constitution  of  this  state  was  adopted, 
is  now  and  ever  since  it  was  created  has  been  conducting  and  transacting  its  func- 
tions as  an  orphan  asylum  under  said  act,  has  not  by  election  or  by  any  other  act 
come  to  be  governed  by  laws  since  passed,  but  all  the  time  has  been  and  is  controlled 
and  governed  by  laws  then  in  force,  and  the  valid  modifications  since  enacted;  such 
orphan  asylum  from  and  after  the  date  of  the  enactment  of  this  act,  shall  be  empow- 
ered and  authorized  by  its  lady  managers,  at  any  meeting  reasonably  convened  and 
notified  for  that  purpose,  if  deemed  expedient,  to  increase  the  number  of  managers  for 
the  institution  to  eighteen.  In  the  event  of  an  increase  in  the  number  of  managers  to 
eighteen,  they  shall,  by  drawing  lots  or  otherwise,  be  classified  so  that  the  time  of 
service  of  one-third  of  the  number  shall  expire  at  the  end  of  one  year,  one-third  of  the 
number  at  the  end  of  two  years,  and  one-third  of  the  number  at  the  end  of  three  years 
from  the  period  of  the  commencement  of  the  respective  terms  of  service.  At  the 
annual  meeting  of  the  members  of  the  corporation,  there  shall  be  elected  each  year, 


574  Private  Corporations  in  Ohio. 


Cincinnati  Orphan  Asylum,   §S   3884-2-3884-5. 


managers  to  nil  the  places  made  vacant  by  expiration  of  term  of  service  or  otherwise; 
provided,  nevertheless,  it  shall  be  in  the  discretion  of  the  lady  managers,  at  any  meet- 
ing of  the  managers  reasonably  notified  and  convened  for  that  purpose,  to  require  an 
increased  or  diminished  number  of  managers,  at  and  after  their  next  election;  but  the 
number  as  increased  or  diminished  shall  be  such  as  to  be  divisible  by  three  into  cor- 
responding classes,  whose  terms  shall  expire,  and  with  reference  to  which  elections 
shall  be  held  as  before  provided.     (April  14,  1888,  85  v.  278.) 

§  3884-2.  MEMBERSHIP;  ELIGIBILITY  TO  OFFICE;  LIFE  AND  HONOR- 
ARY MEMBERSHIPS.  —  From  and  after  the  date  of  this  act,  and  from  expirations 
of  the  current  subscriptions,  no  person  shall  be  entitled  to  membership  in  the  corpora- 
tion or  to  hold  office  in  it  other  than  annual  subscribers  and  contributors  in  at  least 
the  sum  of  five  dollars  per  annum;  such  subscriptions  and  payments  to  be  made  in 
conformity  with  rules  prescribed  by  the  managers;  provided,  however,  that  any 
present  lady  member  who  has  held  her  membership  and  regularly  paid  her  annual 
subscription  for  ten  years  last  preceding  the  passage  of  this  act  may,  at  her  option, 
continue  her  membership  t>y  paying  the  same  amount  per  annum  as  heretofore 
required.  But  nothing  herein  shall  prevent  the  membership  or  qualification  for  office 
of  persons  who  have  become  life  members  under  the  provisions  authorizing  them  to 
do  so,  on  the  payment  of  fifty  dollars;  nor  prevent  the  creation  of  other  life  member- 
ships on  the  payment  of  one  hundred  dollars  or  valuable  service  rendered;  nor  shall 
anything  herein  be  held  to  prohibit  honorary  memberships,  without  the  right  to  vote, 
from  being  conferred  by  the  managers  upon  friends  of  the  institution,  whose  services 
and  influence  deserve  such  honor.     (April   14,   1888,  85  v.  278.) 

§  3884-3.  RIGHT  TO  OWN  PROPERTY;  TO  RECEIVE  AND  ADMINISTER 
ENDOWMENTS  IN  OTHER  STATES.  —  That  said  corporation  shall  be  capable  of 
purchasing,  taking,  holding  and  conveying  any  estate,  real,  personal  or  mixed  in  this 
state,  and  of  accepting,  holding,  and  administering  or  conveying  any  amount  of 
endowment  or  income  in  any  other  state  given  to  it  for  its  uses,  and  which  may  be 
available  for  its  uses,  but  in  any  case  and  always  for  the  sole  object  and  purpose 
of  increasing  the  usefulness  of  the  institution  as  an  orphan  asylum,  nor  shall  any 
part  of  its  property  or  income  be  used  for  any  purpose  or  object  other  than  the  legiti- 
mate objects  of  the  institution.     (April  14,  1888,  85  v.  278.) 

§  3884-4.  PLACING  OF  CHILDREN  IN  SUCH  ASYLUM.  —  That  any  child  or 
person  by  law  entitled,  or  subject  to  be  placed  in  any  children's  home  in  the  county 
of  Hamilton,  may,  by  the  same  method  of  procedure,  and  on  the  same  terms  and  con- 
ditions, subject  to  the  consent  of  the  managers  of  the  Cincinnati  Orphan  Asylum,  be 
placed  in  said  asylum.     (April   14,  1888,  85  v.  278.) 

§  3884-5.  AN  AGREEMENT  BETWEEN  THE  TRUSTEES  AND  COUNTY  COM- 
MISSIONERS FOR  THE  ADMINISTRA-TION  OF  CERTAIN  TRUSTS.  —  That  when, 
and  if,  the  commissioners  of  Hamilton  county  shall  accept  or  have  accepted,  a  devise 
or  devises  under  the  last  will  and  testament  of  any  devisor,  or  have  accepted  or  shall 
accept  property  of  any  kind  in  trust,  whether  conveyed  by  will,  deed  of  conveyance 
or  ether  lawful  transfer,  for  the  purpose,  specified  in  an  act  "  to  authorize  county 
commissioners  in  certain  cases  to  accept  devises  and  legacies,  and  to  erect  and  main- 
tain an  orphan  asylum  in  connection  with  a  children's  home,"  passed  February  11, 
1869  (66  0.  L.  8),  and  the  amendment  thereto,  passed  February  4,  1885  (82  O.  L.  41), 
it  shall  be  lawful  for  the  county  commissioners  and  the  trustees  of  the  Cincinnati 
Orphan  Asylum  to  agree,  and  if  deemed  expedient,  they  are  authorized  to  agree  for 
the  administration  of  such  trust  or  trusts  and  the  care  of  beneficiaries  of  the  trust  or 
trusts,  in  accordance  with  the  terms  of  the  bequest,  by  said  orphan  asylum;    but  in 


Powers  of  Certain  Corporations.  575 


Cincinnati    Orphan    Asylum  —  Transportation    of    Cattle,    §§    3884-6  4211-22. 


no  event  shall  the  Cincinnati  Orphan  Asylum,  without  the  assent  of  the  managers  of 
said  asylum,  undertake   such  trusts.     (April   14,    1888,   85  v.   278.) 

§  3884-6.  ADOPTION  AND  BINDING  OUT  OF  ORPHAN  CHILDREN.  —  The 
managers  of  the  Cincinnati  Orphan  Asylum,  in  the  exercise  of  their  discretion,  are 
authorized  to  place  children  who  are  in  charge  of  the  asylum,  whether  orphans,  half- 
orphans  or  merely  destitute  children,  in  homes,  and  consent  to  their  adoption  by 
suitable  persons,  or  to  bind  them  out  to  trades  or  service;  such  adoption  or  binding- 
out  being  in  conformity  with  the  statutes  relating  to  adoption,  and  binding  out  in 
force  at  the  time  the  transaction  shall  be  made.     (April   14,   1888,  85  v.   278.) 

Whereas,  All  cattle  wintered  in  the  states  of  Florida,  South  Carolina,  North  Ciro- 
lina,  Georgia,  Alabama,  Mississippi,  Louisiana,  Tennessee,  Arkansas,  Texas  and  the 
Indian  territory,  are  infected  with  a  germ  which  renders  them  capable,  except  during 
Hie  frost  of  winter,  of  infecting  northern  cattle  with  a  malady  commonly  known  as 
"  Texas  fever,"  while  they  show  no  manifestation  of  disease;  therefore, 

§  4211-19.  Sec.  1.  THE  DRIVING  OF  CATTLE  FROM  CERTAIN  STATES 
FORBIDDEN  DURING  CERTAIN  MONTHS;  CONVEYANCE  BY  RAILWAY  FOR- 
BIDDEN, EXCEPT.  —  During  the  months  of  March,  April,  May,  June,  July,  August, 
September  and  October,  no  cattle  shall  be  permitted  to  be  driven  into  this  state  from 
any  of  the  above  mentioned  states  or  Indian  territory,  or  that  shall  have  been  win- 
tered therein,  nor  shall  any  person  or  company  bring,  or  cause  to  be  conveyed  into 
this  state  by  railway  or  otherwise,  any  such  cattle  under  said  conditions,  except  as 
specified  in  the  next  section  of  this  act.     (March   14,  1888,  85  v.  83.) 

§  4211-20.  Sec.  2.  UNLOADING  OF  CERTAIN  CATTLE  IN  CERTAIN  M0NTH3 
FORBIDDEN,  EXCEPT. — Any  railroad  or  other  transportation  company  conveying 
into  or  through  this  state,  or  any  stock-yard  company  receiving  such  cattle  during  the 
months  aforesaid  will  not  be  permitted  to  unload  the  same  in  this  state  for  any  other 
purpose  th^u  to  be  fed  and  watered  or  for  immediate  slaughter,  and  in  yards  and 
premises  especially  provided  for  that  purpose,  into  which  northern  cattle  will  not  b3 
permitted  to  enter.  And  the  location  and  arrangement  of  the  said  yards  and  prem- 
ises and  the  disinfection  of  the  cars  and  quarters  used  in  the  transportation  of  such 
cattle  shall  be  governed  by  the  rules  and  regulations  prescribed  by  the  board  of  live 
stock  commissioners.     (April  23,  1891,  88  v.  352;    March  14,   1888,  85  v.  83.) 

Scope  of  laws  —  liability. 

See  Xeal  v.  Cincinnati  Stockyard  Co.,  12  Dec.  533    (1902). 

§  4211-21.  Sec.  3.  PENALTY.  —  Any  person  or  corporation  that  shall  bring  or 
cause  to  be  brought  or  driven  into  this  state,  any  cattle  wintered  in  the  states  or 
territory  above  mentioned,  or  to  be  driven  or  conveyed  otherwise  than  as  herein 
specified,  shall,  upon  conviction  thereof,  be  fined  in  any  sum  not  less  th~n  one  hundred 
dollars,  nor  more  than  one  thousand  dollars,  and  shall,  moreover,  be  liable  for  all 
damages  that  may  be  occasioned  on  account  of  other  cattle  being  infected  with  said 
disease.     (March   14,   1888,   85  v.   83.) 

§  4211-22.  Sec.  4.  DUTY  OF  TRANSPORTATION  COMPANIES;  PENALTY 
FOR  VIOLATION  OF  SUCH  DUTY. — It  shall  be  the  duty  of  all  railway  and  other 
transportation  companies  bringing  into  rnd  unloading  in  this  state  cattle,  otherwise 
than  as  specified  in  section  two  (§4211-20)  of  this  act,  during  the  months  above 
specified,  to  require  a  statement  to  be  made  in  their  shipping  bills,  showing  in  what 
state  or  territory  the  cattle  shipped  were  wintered;  and  it  shall  be  the  duty  of  every 
railroad  company  bringing  into  this  state  cattle,  which  may  unload  such  cattle  for 
any  other  purpose  than  to  be  fed  and  watered  as  specified  in  section  two  (§  4211-20) 
of  this  act    to  leave  at  the  office  of  such  company  nearest  the  point  where  such  cattle 


576  Private  Corporations  in  Ohio. 


.1.. importation   of  Cattle  —  Enlarging  Bridges,   etc.,    §§   4211-23-4495. 


may  be  unloaded,  a  copy  for  public  inspection  of  the  statement  above  required,  show- 
ing where  the  same  were  wintered;  and  any  company  or  corporation  neglecting  to 
comply  with  the  provisions  of  this  section,  shall,  upon  conviction  thereof,  be  fined 
in  any  sum  not  exceeding  five  hundred  dollars.      (March   14,   1888,   85  v.  83.) 

§  4211-23.     Sec.  5.  PROSECUTION  FOR  OFFENSES  HEREUNDER.  —Upon  the 

request  of  the  board  of  live  stock  commissioners  it  shall  be  the  duty  of  the  prosecuting 
attorney  of  r.ny  county  in  which  the  suit  may  be  brought  to  begin  and  prosecute  any 
action  for  the  violation  of  the  provisions  of  this  act  and  the  rules  and  regulations  of 
the  board  of  live  stock  commissioners.  Proceedings  against  any  railway  company 
under  this  act  may  be  had  in  any  county  in  this  state  through  which  any  portion  of 
such  company's  road  may  pass,  or  in  which  its  principal  office  may  be  situated;  and 
process  may  be  served  by  leaving  a  copy  at  the  office  of  such  company  within  such 
county.      (April  23,   1891,  88  v.  353;    March   14,   1888,   85  v.  83.) 

§  4495.  COMMISSIONERS  MAY  REQUIRE  ANY  BRIDGE  OR  CULVERT  TO 
BE  ENLARGED.  —  The  commissioners  of  any  county,  at  any  regular  or  called  ses- 
sion, may  in  the  manner  provided  in  this  chapter,  so  far  as  applicable  when  the  same 
is  necessary  to  the  public  health,  convenience  or  welfare,  cause  to  be  located,  con- 
structed, deepened,  widened  or  enlarged  any  bridge  or  culvert,  made  necessary  by  the 
crossing  of  any  ditch,  drain,  watercourse  or  stream  of  water,  by  any  railroad,  turn- 
pike, plankroad,  or  other  road  of  any  corporation,  at  the  expense  of  said  corporation, 
and  the  necessity  for  making  any  improvement  herein  provided  for,  may  be  heard 
and  determined  at  the  same  time  and  under  the  same  petition  as  provided  for  in  sec- 
tion 4447  of  this  chapter. 

DIMENSIONS  OF  IMPROVEMENT  DETERMINED  BY  COMMISSIONERS; 
CORPORATIONS  AFFECTED  TO  MAKE  SAME.  —  If  the  commissioners  find  for  the 
improvement,  they  shall,  by  an  order  entered  on  their  journal,  determine  the  dimen- 
sions of  said  improvement  and  that  said  improvement  shall  be  made  by  the  corpora- 
tion affected  thereby,  within  three  months  from  the  making  of  such  order  according 
to  the  plans  and  specifications,  and  of  such  materials,  as  the  board  may  approve 
and  select; 

FAILURE  OF  CORPORATION  TO  MAKE  IMPROVEMENT.  —  Provided,  that  if 
said  corporation  shall  not  within  ten  days  from  the  date  of  such  order,  in  writing, 
elect  to  make  said  improvement  as  ordered,  such  fact  shall  be  taken  as  a  refusal  to  do 
the  same,  and  thereupon,  the  county  commissioners  shall  at  once  by  an  order  duly 
entered  upon  their  journal,  specify  the  materials  to  be  used  in  the  construction  of 
said  improvement,  and  directing  the  county  surveyor,  or  an  engineer,  to  make  suita- 
ble surveys  and  to  prepare  plans  and  specifications  for  the  making  of  said  improve- 
ment so  ordered,  which  shall  be  filed  with  the  county  auditor  within  twenty  days 
from  the  making  of  such  order,  who  shall  thereupon  fix  a  date  for  a  hearing  thereon. 

EXCEPTIONS  TO  PLANS  AND  SPECIFICATIONS,  ETC.  —  At  any  time  on  or 
before  the  day  set  for  said  hearing  said  corporation  may,  in  writing,  file  exceptions 
to  said  plans  and  specifications,  or  ask  for  any  change  or  alteration  thereof,  and  of 
the  materials  out  of  which  the  same  is  ordered  to  be  constructed,  which  may  be 
granted  or  refused  by  said  commissioners   as  may  seem  just   and  proper. 

LETTING  OF  IMPROVEMENT;  COSTS  ASSESSED  AGAINST  CORPORATION. 
—  Upon  the  approval  of  such  plans  and  specifications  as  made,  or  as  may  be  changed 
at  said  hearing,  the  commissioners  shall,  at  once,  proceed  to  fix  a  time  for  the  letting 
of  said  improvement  by  bids  as  provided  in  §  4475  of  this  chapter,  and  as  soon  as 
said  improvement  is  completed  assess  said  corporation  with  the  cost  of  constructing 
and  letting  the  same,  and  such  assessment  shall  be  a  lien  upon  the  property  of  the 
corporation,  and  be  collected  as  other  taxes,  or  they  may  order  the  same  to  be  col- 
lected from  such  corporation  by  an  action  at  law,  as  they  deem  proper.  Such  corpo- 
rations shall  be  served  as  in  other  cases.     (April  25,  1898,  93  v.  373;.  R.  S.  1880.) 


Powers  of  Certain  Corporations.  577 


Railroad  Companies  —  Obstruction  of  Roads,   etc.,   j}§   4748  4939. 


§  4748.  OBSTRUCTION  OF  ROAD  BY  RAILROAD  AGENTS.  —If  any  person  or 
corporation,  or  a  conductor  of  any  train  of  railroad  cars,  or  any  other  agent  or  servant 
of  any  railroad  company,  obstruct,  unnecessarily,  any  public  road  or  highway  author- 
ized by  any  law  of  this  state,  by  permitting  any  railroad  car  or  locomotive  to  remain 
upon  or  across  the  same  for  a  longer  period  than  five  minutes,  or  permit  any  timber, 
lumber,  wood,  or  other  obstructions  to  remain  upon  or  across  the  same  to  the  hindrance 
or  inconvenience  of  travelers,  or  any  person  passing  along  or  upon  such  road  or  high- 
way, every  person  or  corporation  so  offending  shall  forfeit  and  pay,  for  every  such 
offense,  any  sum  not  exceeding  twenty  nor  less  than  two  dollars,  and  shall  be  liable 
for  all  damages  arising  to  any  person  from  such  obstruction,  or  injury  to  such  road  or 
highway,  to  be  recovered  by  an  action  at  the  suit  of  the  trustees  of  the  township  in 
which  the  offense  is  committed,  or  of  any  person  suing  for  the  same  before  a  justice  of 
the  peace  within  the  county  where  the  offense  is  committed,  or  by  indictment  in  the 
court  of  common  pleas  in  the  proper  county;  every  twenty-four  hours  such  person  or 
corporation,  after  being  notified,  suffers  such  obstruction  to  remain,  shall  be  deemed 
an  additional  offense  against  the  provisions  of  this  section;  and  all  fines  accruing 
under  this  section,  when  collected,  shall  be  paid  to  the  treasurer  of  the  township  in 
which  the  offense  was  committed,  and  be  applied  by  the  trustees  to  the  improvement 
of  roads  and  highways  therein.      (March  9,   1868,  65  v.   14.  §  31.) 

Necessity.  |  Action  to  recover  penalty. 

See  Lake  Erie,  etc.,  Ry.  Co.  v.  Mackey,  53         Sec  Biggins  v.  Grove,  40  Oh.  St.  521   (1884); 
Oh.  St.  370,  381  (1895).  *  I  Hill    v.    Supervisor,    in    Oh.    St.    621 

I  Bisher  v.  Richards,  9  Oh.  St.  495  (1859). 
Proximate  cause   of  injury. 

See   Railway   Co.  v.   Staley,  41   Oh.   St.    118 
(1884). 

§  4749.  COMPANY  LIABLE  FOR  FINES  AGAINST  EMPLOYES.  —  Every  rail- 
road company  or  other  corporation,  the  servant,  agent,  or  employe  of  which  in  any 
manner,  obstructs  any  public  road  or  highway,  shall  be  liable  to  pay  all  fines  which 
may  be  assessed  against  such  servant,  agent,  or  employe  for  so  obstructing  the  same, 
and  such  liability  may  be  enforced  by  execution  issued  against  such  corporation  on 
the  judgment  rendered  against  such  servant,  agent,  or  employe.  (March  9,  1868, 
65  v.   14,   §  32.) 

§  4939.  JOINT  COUNTY  AND  RAILROAD  BRIDGES.  —  The  commissioners  of 
any  county  may  contract  with  any  railroad  company  for  the  construction,  use.  and 
maintenance  of  wagon  tracks  in  connection  with  railroad  bridges.  (May  1,  1873, 
70  v.  245,  §  1.) 

LAW   GOV.   PRIV.    COR.-^-  37- 


PART   XXIII. 

CODE  OF  CIVIL  PROCEDURE. 

§  49SS.  When  attempt  equivalent  to  commencement;  if  corporation  in  receiver's  hands; 
receiver  of  railroad. 

§4991.  Saving  in  case  of  reversal,  etc.,  if  corporation  in  receiver's  hands;  receiver  of  rail- 
road. 

§  5023.  Actions  against  corporations  other  than  those  mentioned  in  sections  5022,  5025, 
R.  S. ;   where  to  bring. 

§  5024.         Against  railroad,  street  railroad,  electric  traction,  and  stage  companies. 

§  5025.         Against   turnpike  companies. 

§  502(5.         When  this  chapter  does  not  apply. 

§  5027.         Further   provisions   as  to   nonresidents. 

§  5030.  Change  in  venue  in  suit  by  or  against  a  corporation  —  cost  of  summoning  jury  and 
jury  fees  —  how  paid. 

§  5041.         How  summons  served  upon  corporation. 

§  5042.         How  served  upon  an  insurance  company. 

§  5043.         On  foreign  corporation. 

§  5045.         When  corporation  may  be  served  by  publication. 

§  5102.         Pleadings  to  be  subscribed  and  verified. 

§  5465.         Garnishment   against  railroad  companies. 

§  5521.         Attachments,  grounds. 

§  5534.         How  corporation  served   as  garnishee. 

§  4988.  WHEN  ATTEMPT  EQUIVALENT  TO  COMMENCEMENT;  IF  COR- 
PORATION IN  RECEIVER'S  HANDS;  RECEIVER  OF  RAILROAD.  —  An  attempt 
to  commence  an  action  shall  be  deemed  equivalent  to  the  commencement  thereof, 
within  the  meaning  of  this  chapter,  when  the  party  diligently  endeavors  to  procure 
a  service;  but  such  attempt  must  be  followed  by  service  within  sixty  days.  And  if 
the  defendant  is  a  corporation,  whether  foreign  or  created  under  the  laws  of  this  state, 
and  whether  the  charter  thereof  prescribes  the  manner  and  place,  or  either,  of  service 
of  process  thereon,  and  such  corporation  passes  into  the  hands  of  a  receiver  before 
the  expiration  of  said  sixty  days,  then  service  following  such  attempt  to  commence 
the  action  may,  within  said  sixty  days,  be  made  upon  such  receiver,  or  his  cashier, 
treasurer,  secretary,  clerk  or  managing  agent,  or  if  none  of  the  aforesaid  officers  can 
be  found,  by  a  copy  left  at  the  office  or  usual  place  of  business  of  such  agents  or 
officers  of  such  receiver  with  the  person  having  charge  thereof;  and  if  such  corpora- 
tion is  a  railroad  company,  summons  may  be  served  upon  any  regular  ticket  or  freight 
agent  of  said  receiver,  and  if  there  is  no  such  agent,  then  upon  any  conductor  of 
said  receiver,  in  any  county  in  the  state  in  which  such  railroad  is  located,  and  the 
summons  shall  be  returned  as  if  served  upon  said  defendant.  (March  16,  1894,  91  v. 
72;  R.  S.    1880;  51  v.   57,   §   20.) 


See  Collins  v.  Baltimore,  etc.,  R.  R.  Co.,  7 
N.  P.  270   (1S98)  :   s.  c,  7  Dec.  445. 


As  against  federal  receivers. 

See  Baltimore,  etc.,  R.  R.   Co.  v.  Freeman, 
112  Fed.  Rep.  237   (1901). 


§  4991.  SAVING  IN  CASE  OF  REVERSAL,  ETC.,  IF  CORPORATION  IN 
RECEIVER'S  HANDS;  RECEIVER  OF  RAILROAD.  —  If ,  in  an  action  commenced, 
or  attempted  to  be  commenced,  in  due  time  a  judgment  for  the  plaintiff  be  reversed, 
or  if  the  plaintiff  fail  otherwise  than  upon  the  merits,  and  the  time  limited  for  the 

[578] 


Code  of  Civil  Pro'cedure 


579 


Actions  Brought  where,    8   5023. 


commencement  of  such  action  has,  at  the  date  of  such  reversal  or  failure,  expired,  the 
plaintiff,  or,  if  he  die  and  the  cause  of  action  survive,  his  representatives  may  com- 
mence a  new  action  within  one  year  after  such  date,  and  this  provision  shall  apply 
to  any  claim  asserted  in  any  pleading  by  a  defendant.  And  if  the  defendant  is  a 
corporation,  whether  foreign  or  created  under  the  laws  of  this  state,  and  whether 
the  charter  thereof  prescribes  the  manner  and  place,  or  either,  of  service  of  process 
thereon,  and  such  corporation  passes  into  the  hands  of  a  receiver  before  the  expira- 
tion of  said  year,  then  service  to  be  made  within  said  year  following  such 
original  service  or  attempt  to  commence  the  action  may  be  made  upon  such 
receiver  or  his  cashier,  treasurer,  secretary,  clerk  or  managing  agent,  or  if  none  of  the 
aforesaid  officers  can  be  found,  by  a  copy  left  at  the  office  or  usual  place  of  business  of 
such  agents  or  officers  of  such  receiver  with  the  person  having  charge  thereof,  and  if 
such  corporation  is  a  railroad  company,  summons  may  be  served  upon  any  regular 
ticket  or  freight  agent  of  said  receiver,  and  if  there  is  no  such  agent,  then  upon  any 
conductor  of  such  receiver,  in  any  county  in  the  state  in  which  such  railroad  is 
located,  and  the  summons  shall  be  returned  as  if  served  upon  said  defendant.  (March 
16,  1894,  91  v.  72;  R.  S.    1880;  51  v.  57,  8  23.) 

See  Collins  v.  Baltimore,  etc.,  R.  R.  Co.,  7  X.  P.  270   (1898);   s.  c,  7  Dec.  445;    Pittsburg, 
etc.,  Ry.  Co.  v.  Bemis,  45  W.  L.  B.  155    (1901). 


§  5023.  ACTIONS  OTHER  THAN  THOSE  MENTIONED  IN  SECTIONS  5019- 
5022  R.  S.  AGAINST  CORPORATIONS;  WHERE  TO  BRING.  —  An  action  other 
than  one  of  those  mentioned  in  the  four  preceding  sections,  against  a  corporation 
created  under  the  laws  of  this  state,  may  be  brought  in  the  county  in  which  such 
corporation  is  situated,  or  has  or  had  its  principal  office  or  place  of  business,  or  in 
which  such  corporation  has  an  office  or  agent,  or  in  any  county  in  which  a  summons 
may  be  served  upon  the  president,  chairman  or  president  of  the  board  of  directors 
or  trustees  or  other  chief  officer;  but  if  such  corporation  is  an  insurance  company, 
the  action  may  be  brought  in  the  county  wherein  the  cause  of  action,  or  some  part 
thereof,  arose;  and  if  such  corporation  be  organized  for  the  purpose  of  mining  or 
operating  for  petroleum  oil  or  gas,  either  exclusively  or  in  connection  with  other 
business,  the  action  may  be  brought  in  any  county  where  such  corporation  owns  or 
operates  a  mine  or  a  well  for  petroleum  oil  or  gas,  and  the  cause  of  action,  or  some 
part  thereof,  arose.  (February  15,  1877,  74  v.  29,  8  48;  R.  S.  1880,  8  5026;  January 
16,  1885,  82  v.  5;  April  19,  1898,  93  v.  125;  April  16,  1900,  94  v.  270,  g  5023; 
April   23,    1902,   95   v.    237.) 


Meaning  of  •word  "  may." 

The  word  "  may  "  in  this  section  should  be 
read  "  must."  An  Ohio  corporation  can  be 
sued  only  in  the  county  in  which  such  cor- 
poration is  situated,  or  has  or  had  its  prin- 
cipal place  of  business,  or  in  which  an  office 
or  agent  is  maintained. —  Stanton  v.  Enquirer 
Co.,  7  X.  P.  589  (1899);  Kinsey  v.  Burgess 
Iron  Works,  4  N.  P.  293  (1897);  s.  c,  6  Dec. 
446. 

■Where    there   is    a    special   provision. 

This  section  was  not  intended  to  apply  to 
statutory  actions  in  which  a  different  rule  or 
mode  of  proceeding  is  specially  authorized. — 
Muskingum  County  Infirmary  v.  Toledo,  15 
Oh.  St.  409    (1864)* 

Construction   of   "  has   or   had   principal 
office." 

Such  words  contemplate  a  suit  against  a 
company  in  a  county  in  which  it  had  its  prin-     ersox,  6  0.  C.  C.  275   1 1892 


cipal  place  of  business,  though  it  may  have 
abandoned  the  same. —  Campbell  v.  Woods- 
dale,  etc.,  Park  Co..  3  X.  P.  159  (1896);  s.  c, 
\  Dee.  152.  See  Snow  Fork,  etc.,  Coal  Co.  v. 
Hocking  Coal  Co.,  7  X.  P.  191  (1897);  s.  c,  6 
Dec.    178. 

Life    insurance    companies    within    this 
section. 

This  section  authorizes  an  action  upon  a 
policy  of  life  insurance  issued  by  a  company 
organized  under  the  laws  of  this  state,  to  be 
brought  in  the  county  where  the  death  of  the 
party  insured  occurred. —  Union  Central  In- 
surance Co.  v.  Pyers,  36  Oh.  St.  544  (1881). 
See  Eouseholder  Kansas  Life  Association,  •> 
X.  P.  520   (1898)  ;  s.  c,  8  Dec.  321. 

When   companies   having    special   rights 
come  under   this   ?eotinn. 

See    Knox    County    Insurance    Co.    v.    Bow- 

..  3  C.  D.  451. 


580 


Private  Corporations  in  Ohio. 


Actions  Brought  where,   §§   5024-5027. 


Receivers  of  a  company  not  entitled  to 
benefits  of  this  or  next  section. 

See  Rogers  v.  Akron,  etc..  R.  R.  Co.,  6  N.  P. 
291   (1899);  s.  c,  8  Dec.  107. 


When  may  he  sued  in  other  counties. 

Whenever  suit  is  rightly  brought  in  one 
county  against  a  defendant,  process  may  issue 
to  another  county  to  bring  in  a  corporation. 
—  Baldwin  v.  Wilson,  7  N.  P.  506  (1900); 
Stanton  v.  Enquirer  Co.,  7  N.   P.  589    (1899). 


§  5024.  AGAINST  RAILROAD,  STREET  RAILROAD,  ELECTRIC  TRACTION, 
AND  STAGE  COMPANIES.  —  An  action  against  the  owner  or  lessee  of  a  line  of 
maJ  stages,  or  other  coaches,  for  an  injury  to  person  or  property  upon  the  road  or 
line,  or  upon  a  liability  as  carrier,  and  an  action  against  a  railroad  company  or  street 
railroad  company,  owning  or  operating  a  railroad  or  street  railroad  within  the  state, 
or  against  a  transportation  company  owning  or  operating  an  electric  traction  road 
located  upon  either  bank  of  any  canal  belonging  to  the  state,  may  be  brought  in  any 
county  through  or  into  which  such  line,  railroad,  street  railroad  or  electric  traction 
road  passes  or  extends.  (April  3,  1866,  63  v.  87,  §  49;  R.  S.  1880,  §  5027;  April 
16,    1900,   §   5C24;  April  23,    1902,  95  v.  258.) 


Nature   of  action   does  not   change  rule. 

A  railroad  company  may  be  sued  in  any 
county  through  or  into  which  the  road  passes, 
without  regard  to  the  nature  of  the  cause  of 
action. —  Railway  Co.  v.  Jewett,  37  Oh.  St. 
(549   (1882). 

May  he  sued  where  it  operates  a  leased 
road. 

Fee  C.  C.  C.  &  I.  Ry.  Co.  v.  McLean,  1  O.  C. 
C.  112  (1885);  s.  c,  1  C.  D.  07;  affirmed  19 
W.  L.  B.  217;   Swan  v.  Railroad  Co.,  4  Dec.  71 

(1895). 

When   may  he   sued  in  other   counties. 

A  railroad  company  may  be  served  with 
summons  in  a  county  through  which  it  does 
not  run  when  properly  joined  as  a  codefend- 
ant. —  Baltimore,  etc.,  R.  R.  Co.  v.  McPeek, 
16  0.  C.  C.  87   (1898)  ;  s.  c,  8  C.  D.  742. 


Foreign   railroad  companies. 

An  action  against  a  foreign  railroad  com- 
pany may  be  brought  in  a  county  through 
which  its  road  passes. —  Swan  v.  Railroad 
Co.,  4  Dec.   71    (1895). 

Entry  of   appearance    in   other  counties 
—  pleading. 

'this  section  relates  solely  to  the  jurisdic- 
tion of  the  person,  and  it  is  not  necessary 
that  the  petition  should  state  that  its  road 
passes  into  or  through  the  county  where  the 
action  is  brought;  a  railroad  company,  like  a 
natural  person,  submits  itself  to  the  jurisdic- 
tion of  the  court  by  appearing  for  any  other 
purpose  than  to  object  to  such  jurisdiction. — 
Railroad  Co.  v.  Morey,  47  Oh.  St.  207    (1890). 


§  5025.  AGAINST  TURNPIKE  COMPANIES.  —  An  action  other  than  one  of 
those  mentioned  in  the  first  four  sections  of  this  chapter,  against  a  turnpike  road 
company,  may  be  brought  in  any  county  in  which  any  part  of  the  road  lies.  (March 
14,  1853,  51  v.  57,  §  50;  R.  S.  1880,  §  5028;  April  16,  1900,  94  v.  270,  §  5025.) 


§  5026.  WHEN  THIS  CHAPTER  DOES  NOT  APPLY.  —  When  the  charter  of  a 
corporation  created  under  the  laws  of  this  state  prescribes  the  place  where  suit  must 
be  brought,  that  provision  shall  govern.  (March  14,  1853,  51  v.  57,  §  51;  R.  S. 
1880,  §  5029;  April  16,  1900,  94  v.  270,  §  5026.) 


Certain  special   acts. 

Under  the  charter  of  the  Portage  County 
Mutual  Insurance  Company  suit  can  only  be 
brought  in  Portage  countv. —  Portage  Co.  In- 
surance Co.  v.  Stukey,  is  Oh.  455  (1849); 
Portage,  etc.,  Insurance  Co.  v.  West,  6  Oh.  St. 
599    (1856). 


When  special  charter  lost. 

This  section  is  not  applicable,  if  the  com- 
pany has  acted  under  general  laws,  and  thus 
lost  its  special  rights. —  Knox  Co.  Insurance 
Co.  v.  Bowersox,  6  O.  C.  C.  275  (1892);  s.  c, 
3   C.   D.   451. 


§  5027.  FURTHER  PROVISIONS  AS  TO  NON-RESIDENTS.  —  An  action  other 
than  any  of  those  mentioned  in  the  first  four  sections  of  this  chapter,  against  a  non- 
resident of  this  state,  or  a  foreign  corporation,  may  be  brought  in  any  county  in  which 
there  is  property  of,  or  debts  owing  to,  the  defendant,  or  where  such  defendant  is 
found,  or  where  the  cause  of  action,  or  some  part  thereof  arose.  (March  14,  1853,  51 
v.  57,  §  52;  R.  S.  1880,  §  5030;  April  16,  1900,  94  v.  270,  §  5027;  April  17,  1902, 
95   v.  203.) 


Code  of  Civil  I  'rocedure. 


581 


Change  of  Venue,  etc.,  §  5C30. 


Meaning    of    foreign    corporation. 

The  words  "foreign  corporation"  in  attach- 
ment  eases    mean    foreign    to    the    state,    1 1 < •  t 
foreign  to  the   county. —  Boley   v.   Ohio,    etc., 
Trust  Co.,  12  Oh.  St.  139   (1861). 
I 
Foreign  corporation  may  be  sued  where 

found. 

See  Swan  v.  Railroad  Co.,  4  Dec.  71  (1895); 
Mohr  Distilling  Co.  v.  Insurance  Co.,  7  \V. 
L.  B.  335    (1882). 

Causes  arising  in  this  state. 

The  general  rule  here  declared  lias  no  refer- 
ence to  actione  upon  causes  arising  in  this 
state.  No  matter  where  the  cause  aro 
the  subject-matter  be  within  the  jurisdiction 
of  the  court.  Nor  is  the  rule  confined  to  cor- 
porations other  than  insurance  companies. 
Any  foreign  corporation  which  may  be  found 
in  this  state,  may  be  sued  in  any  county  in 
this  state  in  any  court  having  jurisdiction 
of  the  subject-matter  of  the  suit.— Hardy  v. 
Insurance  Co.,  37  Oh.  St.   36G,  371    (1881). 

Foreign  insurance   company. 

The  last  clause  was  intended  to  give  an  ad- 
ditional    remedy     against     foreign     insurance 

§  5030.  CHANGE  OF  VENUE  IN  SUIT  BY  OR,  AGAINST  A  CORPORATION  — 
COST  OF  SUMMONING  JURY  AND  JURY  FEZS-HOW  PAID. —When  a  corpo- 
ration having  more  than  fifty  stock-holders  is  a  party  in  an  action  pending  in  a  county 
in  which  the  corporation  keeps  its  principal  office,  or  transacts  its  principal  business, 
if  the  opposite  party  make  affidavit  that  one  cannot,  as  he  believes,  have  a  fair  and 
impartial  trial  in  that  county,  and  his  application  is  sustained  by  the  several  affi- 
davits of  five  credible  persons  residing  in  such  county,  the  court  shall  change  the 
venue  to  the  adjoining  county  most  convenient  for  both  parties;  and  the  cost  of 
summoning  and  impaneling  a  jury,  and  the  fees  of  said  jury  sitting  in  the  trial  of  the 
case  in  the  court  of  the  county  to  which  the  venue  is  changed,  shall  be  allowed  and 
paid  by  the  commissioners  of  the  county  from  which  said  action  is  sent.  (50  v.  100, 
§  1;    R.  S.   1880,  §  5033;    94  v.  271,  §  5030;    94  v.  378,  §  5033.) 


companies     doing     business     in     this 
namely,  to  make  them  liable  to  actione  in  the 
county    where  the  causes  of  action   arose,   al- 
ii they  might  nol  have  property  or  debti 
due  in  Buch  county  or  mighl  not  even  be  found 
in  such  county.    -  Eandy  v.  [nsura  nee  *  i 
Oh.  St.  366,  371    I  1881  >.     See  Osborn  v. 
51  Oh.  St.  90,  96  (1894). 

Application      to      life      insurance      com- 
panies. 

An   action   againsl    a    foreign   life   insurance 
iny  may  be  broughl   where  the  death  of 
the    insured    occurred.     Householder   v.    Kan- 
sas Life  Association,  6  \.  P.  520  (1898);  s.  c, 
7  Dec.  544.     See  §   5026. 

Action    where    debts    owing    to    foreign 

corporation. 

Where  a    foreign   corporation   has   its  offices 
and  business  in  one  county,  and  has  a  del, tor 

in  another  county,  it  may  be  sued  and  the 
del, is  attached  in  the  latter  county,  pei 
service  being  had  in  the  county  where  ii- 
offices  were  situated.  -Rainey  v.  Jefferson 
Iron  Works.  8  0.  C.  C.  674  (1894);  a.  c,  4  C. 
i).   231. 


Constitutionality. 

This  act  is  not  in  conflict  with  either  the 
state  or  federal  constitutions. —  Snell  v.  Cin- 
cinnati, etc.,  Ry.  Co.,  CO  Oh.  St.  256  (1899). 

When  statute   mandatory. 

It  is  not  necessary,  to  entitle  the  applicant 
to  the  benefit  of  the  statute  in  a  case  for 
which  it  provides,  that  his  affidavit  shall  state 
the  grounds  of  his  belief  that  he  cannot  have 
a  fair  and  impartial  trial  in  the  county  in 
which  the  action  is  pending,  nor  that  the  sus- 
taining affidavits  shall  state  the  ground  of 
their  belief;  it  is  sufficient  that  the  affidavit 
of  the  applicant  state  that  he  cannot.  "  as  he 
believes."  have  a  fair  and  impartial  trial  in 
that  county,  and  his  application  is  "  sustained 
within  the  purview  of  the  statute."  when  there 
is  filed  the  several  affidavits  of  five  credible 
persons  residing  in  the  county,  stating  that 
they  entertain  the  same  belief  when  so  com- 
plied with,  the  statute  is  mandatory.— Snell 
v.  Cincinnati,  etc.,  Ry.  Co.,  60  Oh.  St.  256 
(1899). 


Credibility  of  affiants. 

See  Snell  v.  Cincinnati,  etc.,  Rv.  Co.,  60  Oh. 
St.  256  (1S99). 

Burden   of  proof. 

See  Snell  v.  Cincinnati,  etc.  Rv.  Co..  CO  Oh. 
St.  256     1899). 

See  generally  State  ex  rel.  v.  Wilson,  12  0. 
('.  ('.  636  i  1896)  :  -.  <•..  7  C.  D.  17:  Sauer  v. 
(  incinnati,  etc.,  tty.  Co.,  4  X.  1".  252  |  I  - 
s.  c,  7  Dec.  19;  Stermer  v.  Cincinnati 
Ry.  Co.,  r.  X.  I'  419  i  1898)  ;  -  Dec.  514: 
D'odds  v.  Mt.  Eden,  etc.  Ry.  <  o.,  41  W.  L.  B. 
2d!i   (1  Stilt)  :  s.  c,  20  0.  C.  C.  709. 

What  is  most  convenient. 

The  words  ••most  convenient."  as  used  in 
this  section,  are  to  he  taken  in  the  sense  of 
most  suitable,  becoming  or  appropriate  and 
not  in  the  sense  of  promotion  of  physical  ease. 
— ■  Wilson  v.  Cincinnati,  etc..  Ry.  Co..  7  X.  P. 
511    ilS99). 


582 


Private  Corporations  in  Ohio. 


Service  of  Summons,   §  5041. 


§  5041.  HOW  SUMMONS  SERVED  UPON  CORPORATION.  —  A  summons 
against  a  corporation  may  be  served  upon  the  president,  mayor,  chairman  or  presi- 
dent of  the  board  of  directors  or  trustees,  or  other  chief  officer;  or  if  its  chief  officer 
be  not  found  in  the  county,  upon  its  cashier,  treasurer,  secretary,  clerk,  or  managing 
agent;  or,  if  none  of  the  aforesaid  officers  can  be  found,  by  a  copy  left  at  the  office  or 
usual  place  of  business  of  such  corporation,  with  the  person  having  charge  thereof; 
and  if  such  corporation  is  a  railroad  company,  whether  foreign  or  created  under  the 
laws  of  this  state,  and  whether  the  charter  thereof  describes  the  manner  and  place, 
or  either  of  service  of  process  thereon,  or,  if  such  corporation  be  a  street  railroad 
company,  owning  or  operating  a  street  railroad  passing  through  two  or  more  counties, 
or  a  transportation  company  owning  or  operating  an  electric  traction  road  located 
upon  either  bank  of  any  canal  belonging  to  the  state,  the  summons  may  be  served 
upon  any  regular  ticket  or  freight  agent  of  such  railroad  company  or  street  railroad 
company  or  transportation  company;  or,  if  there  be  no  such  agent,  then  upon  any 
conductor  in  charge  of  any  train  or  car  upon  such  railroad  or  street  railroad,  or  upon 
any  motorman  or  other  person  in  charge  of  any  electric  traction  car,  engine  or  motor 
upon  any  such  electric  traction  road,  in  any  county  in  this  state,  in  which  such  rail- 
road, street  railroad,  or  electric  traction  road  is  located,  or  through  which  it  passes; 
but  if  the  defendant  is  an  incorporated  river  transportation  company,  whether  organ- 
ized under  the  laws  of  this  or  another  state,  the  service  of  a  summons  may  be  upon 
the  master,  or  other  chief  officer,  or  any  of  its  steamboats  or  other  craft,  or  upon 
any  of  its  authorized  ticket  or  freight  agents,  at  any  port  where  it  transacts  business. 
(65  v.  116,  §  66;  76  v.  145,  §  10;  R.  S.  1880,  §  5044;  94  v.  273,  §  5041;  April  23, 
1902,  95  v.  258.) 


Return    of    service    on    subordinate    of- 
ficers or  by  leaving  copy. 

When  service  is  made  upon  a  subordinate 
officer,  it  must  appear  from  the  return  that 
the  chief  officer  of  the  corporation  could  not 
be  found.  When  made  by  copy  left  at  the 
office  or  usual  place  of  business  of  such  cor- 
poration, with  the  person  having  charge 
thereof,  it  must  show  that  none  of  the  speci- 
fied officers,  neither  chief  nor  subordinate, 
could  be  found  in  the  county. —  Fee  v.  Big 
Sandy  Iron  Co.,  13  Oh.  St.  5G3  (1862): 
Bucket  Pump  Co.  v.  Eagle  Iron  Co.,  21  O.  C. 
C.  229  (1900).  See  Parker  v.  Van  Dorn  Iron 
Works,  23  0.  C.  C.  444   (1902). 

Return  of  service. 

A  service  of  summons  on  a  corporation  "  by 
delivering  a  true  copy  of  this  writ,  with  all 
indorsements  thereon,  to  John  Doe,  secretary 
of  the  company,  no  other  chief  officer  being 
found."  is  a  compliance  with  the  statute. — 
Cincinnati  Hotel  Co.  v.  Central  Trust  Co..  25 
W.  L.  B.  375  (1891) ;  s.  c,  25  W.  L.  B.  295. 

Service  on  president,  where  made. 

Where  a  suit  has  been  rightfully  brought 
against  a  corporation,  service  may  be  made  on 
the  president  in  that  or  any  other  county,  or 
if  service  can  be  otherwise  made  in  the  county 
by  sewing  other  officers,  etc.,  it  is  not  neces- 
sary  to  follow  the  president  to  another  county. 
—  Campbell  v.  Woodsdale  Park  Co.,  3  N.  P. 
159   (1896);   s.  c,  4  Dec.  152. 

Service  on  lessee   of  railroad. 

Service  on  a  company  operating  a  railroad 
under  a  lease  is  good  if  made  on  a  ticket 
agent  —  C.  C.  C.  &  I.  Ry.  Co.  v.  McLean,  1  0. 


C.  C.  112   (1885) 
§    3305. 


s.  c,  1  C.  D.  67.     See,  also, 


Service  on  lessor   of  railroad. 

See  §  3305.  See  Collins  v.  Baltimore,  etc., 
R.  E.  Co..  7  N.  P.  270  (1898)  ;  s.  c,  7  Dec.  445. 

Foreign     railroad     company  —  traveling 
passenger  agent. 

Services  cannot  be  made  on  a  foreign  rail- 
road company  by  serving  the  writ  upon  a  mere 
traveling  solicitor  of  business  for  such  com-, 
pany. —  Wilson  v.  Northern  Pacific  R.  R.  Co., 
16  W.   L.  B.   6    (1886). 

Foreign   railroad   company. 

So  far  as  this  section  provides  for  service 
on  foreign  railroad  companies,  it  is  cumula- 
tive and  not  restrictive  or  exclusive,  and  does 
not  affect  §  5043.— See  Wheeling,  etc.,  Co.  v. 
Baltimore,  etc..  R.  R.  Co.,  1  C.  S.  C.  311,  32 
Oh.  St.  135   (1877). 

Rettirn  must   show   service  on  "  regular 
agent." 

In  an  action  against  a  railroad  company,  a 
return  that  the  summons  was  served  upon  a 
"  ticket  agent  and  general  agent"  is  defective 
in  not  showing  that  the  person  served  was 
"  its  regular  ticket  asent."—  Tallman  v.  Bal- 
timore, etc.,  R.  R.  Co.,  45  Fed.  156  (1891); 
s.  c,  6  0.  F.  D.  728. 
Ticket  agent   need  not  be   employed   on 

line  of  road. 

Service  on  a  ticket  agent  was  held  sufficient 
though  the  company  had  no  line  of  road  and 
did  not  operate  in  the  county.— See  Wood- 
cock v.  Baltimore,  etc.,  R.  R.  Co.  (U.  S.  C. 
C.),46  W.  L.  B.  121   (1901). 


Code  of  Civil  Procedure. 


583 


Service  of  Summons,  §§  5042,  5043. 


Suit   by   resident    of   Ohio   against    Ohio 
corporation  in  foreign  state  —  service. 

See  Cincinnati,  etc.,  K.  R.  Co.  v.  Emery,  17 
W.  L.  B.  154   (1887). 

"When  there  is  no  agent  —  service. 

See  §  5045. 

Joint-stock  companies  —  service. 

A  joint-stock  company,  organized  under  the 
laws  of  the  state  of  New  York,  and  having 
substantially  the  character  ami  powers  of  a 
corporation,  may  be  served  with  summons  in 
this  state  in  the  same  manner  as  corporations 
are  served. —  Express  Co.  v.  State,  55 
Oh.  St.  69  (1896). 

Service   on   defunct  company. 

As  the  last  directors  of  a  defunct  corpora- 
tion are  in  effect  the  corporation,  service  on 
them  is  sufficient. —  Warner  v.  Callender,  20 
Oh.  St.  190   (1870). 

Township    ditches,    notice,    how    served. 

See  Caldwell  v.  Trustees,  2  O.  C.  C.  10 
(1886);  s.  c,  1  C.  D.  332. 


Agent   of  receiver  is   not  agent  of   com- 
pany. 

The  service  of  a  Bummona  "n  a  regular 
ticket  and  freighl  agent,  at  and  iii  chai 
an  established  station,  the  road  being  in  the 
bands  of  a  receiver,  and  Buch  agent  being  an 
agenl  of  the  receiver,  i-  not  good  service  as 
againsl  the  company.  Cleveland,  et<  .  I:  l: 
Co.   \.  Orine.   l   0.  C.  C.   "il  III--,  I   <  . 

I).  285;  (ollin-  v.  Baltimore,  etc.,  R.  R    I  o    7 
X.   I'.  270   (1898);  s.  c,  7   Dec.  445.     B 
§     1991. 


Where    company   enters   jurisdiction    by 

ferry. 

Where  a  railroad  enters  the  jurisdiction  by 
ferryboal  onlj .  service  on  a  tickel  agenl  lo- 
cated in  hi-  township  i-  sufficient.  Williams 
v.  Chesapeake,  etc.,  R.  R.  Co.,  31  W.  L.  B  I  L5 
(1894). 

Who  is  managing  agent. 

See  §  5043,  notes. 


§  5042.  HOW  SERVED  UPON  AN  INSURANCE  COMPANY.  —  When  the 
defendant  is  an  insurance  company,  and  the  action  is  brought  in  a  county  in  which 
there  is  an  agency  thereof,  the  service  may  be  upon  the  chief  officer  of  such  agency. 
(51  v.  57,  §  67;  R.  S.  1880,  §  5045;  April  16,   1900,  94  v.  273,   §   5042.) 


This  is   cumulative. 

See  Householder  v.  Kansas,  etc.,  Life  Asso- 
ciation, 6  N.  P.  520   (1898);   s.  c,  8  Dec.  32L 


Appointment   of   agent. 

See   §§   3607,  3617. 


§  5043.  ON  FOREIGN  CORPORATION.—  When  the  defendant  is  a  foreign  corpo- 
ration, having  a  managing  agent  in  this  state,  the  service  may  be  upon  such  agent. 
(51  v.  57,  §  68;  R.  S.  1880,  §  5046;  94  v.  274,   §  5043.) 


Foreign     railroad     companies     may     be 
served  under  this  section. 

The  provisions  of  §  5041  as  to  service  of  for- 
eign railroad  corporations  are  not  exclusive, 
and  the  service  of  summons  on  such  a  com- 
pany may  be  made  by  delivering  the  writ  to 
its  managing  agent,  whose  business  it  is  to 
contract  for  freight  and  to  attend  to  transfers 
of  freight. —  Wheeling,  etc.,  Co.  v.  Baltimore, 
etc.,  R.  R.  Co.'.  1  C.  S.  C.  311;  s.  c,  32  Oh. 
St.  116,  135    (1877). 

Traveling     passenger     agent     is     not     a 

managing  agent. 

See  Wilson  v.  Northern  Pacific  R.  R.  Co., 
16  W.  L.  B.  6   (1886). 

Sales    agent    is    not   managing   agent. 

The  fact  that  a  foreign  corporation  has  an 
agent  here  merely  to  receive  what  is  sent  to 
him,  and  to  remit  back  the  proceeds,  is  not 
sufficient,  and  such  agent  is  not  a  managing 
agent. —  Gibbin  v.  Kanawha,  etc..  Coal  Co.,  2 
C.  S.  C.  75  (1870).  See  Bucket  Pump  Co.  v. 
Eagle  Iron  Co.,  21  O.  C.  C.  229  (1900). 

Who    is    managing    agent    of    insurance 
company. 

A  service   upon  "  J.   P.   W.,   agent   of  said 


Lamar  Insurance  Co..  and  the  chief  officer  of 
its  agency   in  the  city  of  Cincinnati,   no  chief 

officer    of    said    company    found,'"    i-    g 1    as 

service  upon  a  managing  agent. —  Mohr  Dis- 
tilling  Co.  v.  Lamar  Insurance  Co.,  7  W  L  B 
:541    (18S2). 

Who  is  managing  agent. 

A  local  agent  of  an  express  company  who 
keeps  an  office,  receives  and  forward-  pack- 
ages, and  does  all  the  business  of  the  com- 
pany at  a  certain  place,  is  a  managing  agent. 
—  American  Express  Co.  v.  Johnson,  17  Oh. 
St.  041  (1867).  See  Wheeling,  etc..  «...  v. 
Baltimore,  etc.,  R.  R.  Co.,  1  C.  S.  C.  311,  32 
Oh.  St.  135   (1877). 

Service   on   foreign   insurance    company. 

A  foreign  insurance  company  may  be  served 
cither  under  this  section  or  the  preceding  sec- 
tion, as  they  are  cumulative  and  designed  to 
facilitate  service. —  Householder  v.  Kansas, 
etc..  Life  Association.  (1  X.  P.  520  |  1898)  ;  -  c.. 
8  Dec.  321:  Mohr  Distilling  Co.  v.  Lamar  In- 
surance Co.,  7  W.  L.  B.  341   (1882). 


584  Private  Corporations  in  Ohio. 

Service  by  Publication,    §   5045. 


Return  must  show  service  on  managing 
agent. 

While  only  substantial  compliance  with  the 
statute  is  sufficient,  a  return  which  does  not 
show  that  service  was  had  upon  the  manag- 
ing agent  of  the  company  in  the  state,  but 
simply  "  upon  defendant's  agent,"  is  not  suf- 
ficient.— Fleckmever  Wheel  Co.  v.  Commer- 
cial Wheel  Co.,  7  N.  P.  613  (1897);  s.  c,  8 
Dec.  686. 

Service    on    foreign    corporation    under 
§   5041. 

Except  as  specially  provided  a  foreign  cor- 
poration cannot  be  served  with  process  under 
§  5041. —  Barney  v.  New  Albany,  etc.,  R.  R. 
Co.,   1    Handy,   571    (1855). 

Foreign      dissolved      corporation,      how 
served. 

See  Vallette  v.  Kentucky  Trust  Co.,  2 
Handy,   1    (1855). 


Attachment     by     notice     to     managing 
agent. 

See  Rocke  v.  Raney,  15  W.  L.  B.  333  (1886). 

Designation  of  agent  upon  whom  proc- 
ess can  be  served. 

See   §    148d.    See  generally   §   148c,  notes. 

Service     on     foreign    corporation     after 
agent  designated. 

Service  may  be  made  on  managing  agent 
notwithstanding  an  agent  has  been  appointed 
and  his  name  filed  with  secretary  of  state. — 
Lesser    Cotton    Co.    v.    Yates,    63    S.    W.    997 

(Ark.). 

Validity  of  service  on  Ohio  corporation 
in  foreign  state. 

See  Cincinnati,  etc.,  R.  R.  Co.  v.  Emery,  17 
W.   L.  B.  154  (1887). 


§  5045.  WHEN  CORPORATIONS  MAY  BE  SERVED  BY  PUBLICATION— 
Service  may  be  had  by  publication  in  either  of  the  following  cases: 

1.  In  actions  under  the  first  three  sections  of  the  last  chapter,  when  the  defendant 
resides  out  of  the  state,  or  his  place  of  residence  can  not  be  ascertained. 

2.  In  actions  to  establish  or  set  aside  a  will,  and  in  actions  authorized  by  section 
six  thousand  two  hundred  and  two,  when  a  defendant  resides  out  of  the  state,  or 
his  place  of  residence  can  not  be  ascertained. 

3.  In  actions  in  which  it  is  sought  by  a  provisional  remedy  to  take,  or  appropriate 
in  any  way,  the  property  of  the  defendant,  when  the  defendant  is  a  foreign  corpora- 
tion, or  a  non-resident  of  this  state,  or  the  defendant's  place  of  residence  can  not  be 
ascertained. 

4.  In  actions  against  a  corporation  organized  under  the  laws  of  this  state,  which 
has  failed  to  elect  officers,  or  to  appoint  an  agent,  upon  whom  service  of  summons  can 
be  made  as  provided  by  section  five  thousand  and  forty-one,  and  which  has  no  place 
of  doing  business  in  this  state. 

5.  In  actions  which  relate  to  or  the  subject  of  which  is  real  or  personal  property 
in  this  state,  when  a  defendant  has  or  claims  a  lien  thereon,  or  an  actual  or  contingent 
interest  therein,  or  the  relief  demanded  consists  wholly  or  partly  in  excluding  him. 
from  any  interest  therein,  and  such  defendant  is  a  non-resident  of  the  state,  or  a 
foreign  corporation,  or  his  place  of  residence  cannot  be  ascertained. 

6.  In  actions  against  executors,  administrators,  or  guardians,  when  the  defendant 
has  given  bond  as  such  in  this  state,  but  at  the  time  of  the  commencement  of  the 
action  is  a  non-resident  of  the  state,  or  his  place  of  residence  can  not  be  ascertained. 

7.  In  actions  where  the  defendant,  being  a  resident  of  this  state,  has  departed 
from  the  county  of  his  residence,  with  intent  to  delay  or  defraud  his  creditors,  or 
to  avoid  the  service  of  summons,  or  keeps  himself  concealed  with  like  intent. 

8.  When  a  defendant  in  a  petition  in  error  has  no  attorney  of  record  in  this 
state,  and  is  a  non-resident  of  and  absent  from  the  same,  or  has  left  the  same  to 
avoid  the  service  of  summons  in  error,  or  so  conceals  himself  that  such  process  can. 
not  be  served  upon  him. 

9.  In  an  action  or  proceeding  under  chapter  six,  division  four,  of  this  title,  or 
to  impeach  a  judgment  or  order  for  fraud,  or  to  obtain  an  order  of  satisfaction 
thereof,  when  a  defendant  is  a  non-resident  of  the  state. 

When,  in  any  such  case,  the  residence  of  a  defendant  is  known,  it  must  be  stated 
in  the  publication;  and  immediately  after  the  first  publication,  the  party  making 
the  service  shall  deliver  to  the  clerk  copies  of  the  publication,  with  the  proper  post- 
age,  and  the  clerk  shall  mail   a  copy  to  each  defendant,    directed  to  his   residence 


Code  of  Civil  Prcn  edure,  585 


Verification  of   Pleadings  —  Attachment,    SS    5102  5521. 


named  therein,  and  make  an  entry  thereof  on  the  appearance  docket;  and  in  all 
other  cases,  the  party  who  makes  the  service,  his  agent  or  attorney,  shall  before 
the  hearing,  make  and  file  an  affidavit  that  the  residence  of  the  defendant  is  unknown, 
and  can  not  with  reasonable  diligence,  be  ascertained.  (65  v.  208,  §  1 ;  74  v.  151, 
§  70;  R.  S.  1880,  §  5048;  77  v.  45;  87  v.  225;  94  v.  274,  g  5045.) 

§  5102.  PLEADING  TO  BE  SUBSCRIBED  AND  VERIFIED.— Every  pleading 
and  motion  must  be  subscribed  by  the  party  or  his  attorney,  and  every  pleading  of 
fact,  except  as  provided  in  the  next  section,  must  be  verified  by  the  affidavit  of  the 
party,  his  agent  or  attorney;  when  a  corporation  is  the  party,  the  verification  may  b3 
made  by  an  officer  thereof,  its  agent  or  attorney;  and  when  the  state,  or  any  officer 
thereof  in  its  behalf,  is  the  party,  the  verification  may  be  made  by  any  person 
acquainted  with  the  facts,  the  attorney  prosecuting  or  defending  the  action,  the  prose- 
cuting attorney,  or  the  attorney-general.  (March  14,  1853,  51  v.  57,  §  106;  70  v. 
54,   §    105.) 

National   Hank  v.  Maumee  Rolling  Mill  ( '"..  2 
N.  I'.  260  i  L894)  ;  s.  «■..  2  Dec.  67. 


§    5109  does  not  limit  this  section. 

Under  this  section  the  pleading  of  a  cor- 
poration may  be  verified  by  the  affidavit  of 
its  officer,  agent,  or  attorney,  and  the  pro- 
visions   of    §    5109    do    not    apply. —  Northern 


Answers    to    interrogatories,    how    veri- 
fied. 

See  §  5099. 


§  5465.  GARNISHMENT  AGAINST  RAILROAD  COMPANIES.—  The  plaintiff, 
or  his  agent  or  attorney,  in  a  judgment  against  a  railroad  company,  rendered  in  any 
court,  upon  a  claim  due  to  common  laborers  for  work  and  labor  performed  for  'he 
company,  or  for  cross-ties,  lumber,  or  wood  furnished  thereto,  to  be  used  in  the  cju- 
struction,  repair,  or  operation  of  its  road  or  for  the  erection  of  fences  along  the  line  of 
its  road,  required  by  law  to  be  erected,  cr  upen  a  note,  or  other  evidence  of  indebted- 
ness given  for  the  considerations  aforesaid,  may  file  with  a  precipe  for  execution 
upon  such  judgment  his  affidavit,  setting  forth  the  claim  upon  which  the  judgment 
is  founded,  that  he  has  no  knowledge  of  any  property  of  the  defendant  liable  to  levy 
and  sale  upon  the  execution,  and  that  a  person  or  corporation,  to  be  therein  named, 
and  within  the  jurisdiction  of  the  officer  to  whom  the  execution  is  to  be  directed,  is 
indebted  to  the  defendant,  or  has  property  or  claims  of  the  defendant  in  his  posses- 
sion or  under  his  control,  as  agent  of  the  defendant,  or  otherwise;  and  thereupon  the 
clerk  shall  issue  a  notice  to  each  person  or  corporation  named,  to  the  effect  that  he  is 
required  to  pay  over  and  deliver  to  the  officer  holding  such  writ  the  money,  property, 
and  claims  of  the  defendant,  in  his  possession  or  under  his  control,  or  which  may 
come  into  his  possession  or  under  his  control,  at  any  time  before  the  satisfaction  cf 
the  judgment,  not  exceeding  an  amount  sufficient  to  pay  the  same  and  costs.  (April 
5,    1866,   63  v.   126,   §   1.) 

See  §  54CSG  et  seq.,  for  practice. 

§  5521.  ATTACHMENT,  GROUNDS.— That  in  a  civil  action  for  the  recovery  of 
money  the  plaintiff  may,  at  or  after  the  commencement  thereof,  have  an  attachment 
against   the  property    of   the   defendant  upon   the   grounds   herein   stated. 

1.  When  the  defendant,  or  one  of  several  defendants,  is  a  foreign  corporation, 
except  as  provided  by  an  act  entitled  "  An  act  to  further  supplement  section  148 
of  the  Revised  Statutes,"  passed  May  16,  1894  (91  O.  L.  272).  and  except  as  pro- 
vided by  an  act  entitled  "  An  act  to  amend  section  1  of  an  act,"  etc.,  passed  May 
19,  1894  (91  O.  L.  355)  [§§  148c,  148d;l  or  a  non-resident  of  this  state;  or 

2.  Has  absconded  with  the  intent  to  defraud  his  creditors;  or 

3.  Has  left  the  county  of  his  residence  to  avoid  the  service  of  a  summons;  or 

4.  So  conceals  himself  that  a  summons  cannot  be  served  upon  him;  or 

5.  Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the  jurisdiction  of 
the  court,  with  the  intent  to  defraud  his  creditors;  or 


586 


Private  Corporations  in  Ohio. 


Attachment,  etc.,  §  5534. 


6.  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money,  for  the  pur- 
pose of  placing  it  beyond  the  reach  of  his  creditors;  or 

7.  Has  property  or  rights  in  action,  which  he  conceals;  or 

8.  Has  assigned,  removed,  disposed  of,  or  is  about  to  dispose  of,  his  property, 
or  a  part  thereof,  with  the  intent  to  defraud  his  creditors;  or 

9.  Has  fraudulently  or  criminally  contracted  the  debt,  or  incurred  the  obliga- 
tions for  which  suit  is  about  to  be  or  has  been  brought;  or 

10.   That  the  claim  is  for  work  or  labor,  or  for  necessaries. 

But  an  attachment  shall  not  be  granted  on  the  ground  that  the  defendant  is  a 
foreign  corporation  or  a  non-resident  of  this  state,  for  any  claim  other  than  a 
debt  or  demand  arising  from  contract,  judgment  or  decree,  or  for  causing  death  or 
a  personal  injury,  by  a  negligent  or  wrongful  act.  (March  20,  1900,  94  v.  44; 
93  v.  318;  88  v.  65;  R.  S.   1880;  61  v.   10,  §   191.) 

tract  for  the  extension  of  the  time  of  payment 
on  a  note,  and  maliciously  attaching  property. 
McCracken  v.  Covington  Nat.  Bank,  4  Fed. 
602    (1S80). 


No  bonds  required. 

See  §  5523. 

Practice. 

See  Vallette  v.  Kentucky,  etc.,  Bank,  2 
Handy,  1    (1855). 

Poreign      corporation      may      be      made 

garnishee,  service  of  order. 

Rainey  v.  Maas,  28  W.  L.  B.  246  (1S92).  See 
Rocke  v.  Raney,  15  W.  L.  B.  333  (1886): 
Pennsylvania  R'.  R.  Co.  v.  Peoples,  31  Oh.  St. 
537  (1877)  :  Baltimore,  etc.,  R.  R.  Co.  v.  May, 
25  Oh.  St.  347   (1874). 

See  Riter-Conley  Mfg.  Co.  v.  Mzik,  13  C.  D. 
164   (1901). 

"Where    suit    brought    when    debts    due 
foreign   corporation  are  attached. 

See  Rainey  v.  Jefferson  Iron  Works,  8  0. 
C.  C.  674  (  1894)  :  s.  c.  4  C.  D.  231.  See  Kelley 
Co.  v.Garvin  Machine  Co..  6  N.  P.  350   (1896)'. 

See  Riter-Conley  Mfg.  Co.  v.  Mzik.  13  C.  D. 
164  (1901). 

Action   for  injury  to  passenger   niay   be 
on  contract. 

See  Pennsylvania  R.  R.  Co.  v.  Peoples,  31 
Oh.  St.  537  (1877). 

Malicious  prosecution  of  civil  action. 

An  attachment  cannot  issue  in  an  action 
against  a  foreign  corporation  to  recover  dam- 
ages for  bringing  suit  in  violation  of  a  con- 


How  corporation  served  as  garnishee. 

See  §  5534 :  Union  Bank  v.  Union  Bank,  6 
Oh.  St.  254  (1S56)  ;  Conahan  v.  Collin,  2  Dis. 
1    (1871). 

Creditors  filing  claims  with  receivers 
of  foreign  corporations  are  estopped 
from  attaching. 

See  Rice  v.  Farnham,  7  N.  P.  189  (1896); 
s.  c,  4  Dec.  217:  Barl  our  v.  Loeka^d,  11  W.  L. 
B.  319  (1884);  Wilson  v.  Gifford,  12  O.  C.  C. 
597  (1896);  s.  c,  5  C.  D.  6S0;  President,  etc., 
of  Manhattan  Co.  v.  Maryland  Steel  Co..  31 
W.  L.  B.  100  (1894)  ;  s.  c,  1  Dec.  286. 

Creditors  in  same  jurisdiction  as  re- 
ceiver   of    corporation    cannot    attach. 

See  Besuden  v.  Besuden  Co..  3  N.  P.  165 
(1896)  ;   s.  c,  4  Dec.  406. 

Application  for  receiver,  when  fraud. 

An  application  for  the  appointment  of  a  re- 
ceiver consented  to  by  the  company  may 
amount  to  an  attempt  to  dispose  of  the  prop- 
erty with  intent  to  defraud  creditors. — 
Bacon  v.  Northwestern  Stove  Co.,  5  0.  C.  C. 
289    (1891);   s.  c,  3  C.  D.  551. 


§  5534.  HOW  CORPORATION  SERVED  AS  GARNISHEE.— If  the  garnishee 
is  a  person,  the  copy  of  the  order  and  notice  shall  be  served  upon  him  personally 
or  be  left  at  his  usual  place  of  residence;  if  a  partnership  garnisheed  by  its  company 
name,  they  shall  be  left  at  its  usual  place  of  doing  business  or  with  any  member 
of  such  partnership;  and  if  a  corporation,  they  shall  be  left  with  the  president 
or  other  principal  officer,  or  the  secretary,  cashier  or  managing  agent  thereof;  and 
if  such  corporation  is  a  railroad  company,  they  may  be  left  with  any  regular  ticket 
or  freight  agent  thereof,  in  any  county  in  which  the  railroad  is  located.  (April  16, 
1900,  94  v.  283;  March  31,  1881,  78  v.  93;  R.  S.   1880;  May  16,  1868,  65  v.  213  ) 


What   is    improper   return. 

The  following  return  of  service  dojes  not 
comply  with  the  statute:  "The  attachment 
was  served  upon  the  following  persons  and 
firms:  The  Sandasky  Gas  Light  Co.''  Prant 
v.  Post,    12  Dec.    141    (1900). 


See  Riter-Conley,  etc.,  Co.  v.  Mzik,  13  C.  D. 
164   (1901). 

See  notes  to  §  5521. 


PART    XXIV, 

RECEIVERS  OF  CORPORATIONS. 

§5587.  When  and  how  a  receiver  may  be  appointed. 

§  558S.  Who  ineligible  as  receiver. 

§  5589.  Oath  and  undertaking  by  receiver. 

§  5590.  Powers  of  receiver. 

§  5591.  Investment  of  fund  by  receiver. 

§  5592.  Disposition  of  property  in  hands  of  trustee. 

§  5593.  How  certain  orders  of  court  may  be  enforced. 

§  5587.  WHEN  AND  HOW  A  RECEIVER  MAY  BE  APPOINTED.—  A  receiver 
may  be  appointed  by  the  supreme  court  or  a  judge  thereof,  the  circuit  court  cr  a  judge 
thereof  in  his  circuit,  a  common  pleas  court  or  a  judge  thereof  in  his  district,  or  the 
probate  court,  in  causes  pending  in  such  courts  respectively,  in  the  following  cases: 

1.  In  an  action  by  a  vendor  to  vacate  a  fraudulent  purchase  of  property,  or  by  a 
creditor  to  subject  any  property  or  fund  to  his  claim,  or  between  partners  or  others 
jointly  owning  or  interested  in  any  property  or  fund,  on  the  application  of  the  plain- 
tiff, or  of  any  party  whose  right  to  or  interest  in  the  property  or  fund,  or  the  proceeds 
thereof,  is  probable,  and  when  it  is  shown  that  the  property  or  fund  is  in  danger  of 
being  lost,  removed,   or  materially  injured. 

2.  In  an  action  by  a  mortgagee,  for  the  foreclosure  of  his  mortgage,  and  sale  of 
the  mortgaged  property,  where  it  appears  that  the  mortgaged  property  is  in  danger 
of  being  lost,  removed  or  materially  injured,  or  that  the  condition  of  the  mortgage 
has  not  been  performed,  and  the  property  is  probably  insufficient  to  discharge  the 
mortgage    debt. 

3.  After  judgment,  to  carry  the  judgment  into  effect. 

4.  After  judgment,  to  dispose  of  the  property  according  to  the  judgment,  cr  to 
preserve  it  during  the  pendency  of  an  appeal,  or  when  an  execution  has  been  returned 
unsatisfied,  and  the  judgment  debtor  refuses  to  apply  the  property  in  satisfaction  of 
the  judgment. 

5.  In  the  cases  provided  in  this  title,  and  by  special  statutes,  when  a  corporation 
has  been  dissolved,  or  is  insolvent,  or  in  imminent  danger  of  insolvency,  or  has  for- 
feited its  corporate  rights. 

6.  In  all  other  cases  where  receivers  have  heretofore  been  appointed  by  the  usages 
of  equity.     (February  7,  1885,  82  v.  16,  35;  R.  S.  1880;  51  v.  57,  §  283.) 


Action    cannot    be    maintained    for    the 
sole  purpose  of  appointing  a  receiver. 

The  appointment  of  a  receiver  is  merely  a 
provisional  remedy,  ancillary  and  auxiliary  to 
the  main  action,  and  can  only  be  made  in  an 
action  brought  to  obtain  some  other  equitable        tion. 

relief,  which  the  court  lias  a  right  to  -rant.  Subdivision  5  of  this  section  does  not  au- 
and  where  it  appears  to  lie  necessary  to  make  thorize  the  appointment  of  a  receiver,  except 
such    appointment    in    order    to    preserve    the     i"   cases   provided   for   in   this   title    (1),  <>r   by 


solidated,  etc.  Co..  4  X.  P.  216    (1897);  -.  c, 
6  Dec.  246;    Callahan  v.    [ce  Co.,   13  0.  <      I 
479  (1897)  :  s.  e.,  7  C.  D.  349. 

What  cases  within   snbd.   5  of  this   sec- 


property  during  the  litigation,  so  that  the  re- 
lief awarded  by  the  final  judgment  if  anv. 
mav  be  effective. —  Cincinnati,  etc..  R.  R.  Co. 
v.  Duckworth.  2  O.  C.  (.  518  (1887);  s.  c 
1  C.  D.  618.  See  Cincinnati,  etc.  R.  R.  Co.  v. 
Sloan,  31  Oh.  St.  1,  7  (1877);  Schone  v.  Con- 

[537] 


special  statutes,  and  does  not  include  an  ac- 
tion by  a  stockholder  for  the  appointment  of 
a  receiver  because  of  fraud  of  directors. — 
Cincinnati,  etc..  R.  R.  Co.  v.  Duckworth.  2  0. 
C.  C.  518  (1SS7);  s.  c,  1  C.  D.  61S. 


588 


Private  Corporations  in  Ohio. 


Appointment,  etc,   of  Receiver,   §   5587. 


Propriety  of  appointing  receiver  to  run 
business. 

While  the  appointment  of  a  receiver  for  an 
insolvent  private  corporation  may  be,  and 
doubtless  often  is,  a  beneficent  remedy  for 
all  interested  parties,  where  a  bona  fide  wind- 
ing up  of  affairs  and  distribution  of  its  assets 
to  those  who  show  a  right  to  them  is  the  ob- 
ject sought  and  steadily  kept  in  view,  yet,  on 
the  other  hand,  to  employ  that  extraordinary 
remedy  as  a  means  by  which  to  indefinitely 
prolong,  by  aid  of  a  friendly  receiver,  the  sub- 
stantial control  of  an  insolvent  private  cor- 
poration over  its  assets  and  business,  can  be 
justified,  in  the  absence  of  statutory  au- 
thority, by  circumstances  only,  if  there  can  be 
any,  that  most  unequivocally  demand  such 
action,  or  by  the  consent  of  all  parties  in  in- 
terest.— Peter  v.  Farrell,  etc.,  Machine  Co., 
53  Oh.  St.  534,  551    (1S95). 

Simple    contract    creditor    cannot    have 
receiver  appointed. 

A  simple  contract  creditor  who  has  not  re- 
covered a  judgment  against  a  corporation  and 
exhausted  his  remedies  at  law,  has  no  right 
to  have  the  affairs  of  a  corporation  placed  in 
the  hands  of  a  receiver  on  the  grounds  that  it 
is  insolvent. —  North  Fairmount,  etc.,  Co.  v. 
Rehn.  6  N.  P.   185   (1899);   s.  c,  8  Dec.  594. 

"When    a    creditor    may    have    a    receiver 
appointed. 

It  is  not  a  sufficient  averment  for  the  ap- 
pointment of  a  receiver  to  allege  that  the  cor- 
poration is  insolvent,  or  that  it  has  no  goods 
or  property  subject  to  levy.  The  reason  is 
that  a  corporation  may  have  nothing  upon 
which  levy  may  be  made,  and  yet  be  the 
owner  of  equitable  rights  sufficient  to  satisfy 
all  debts. —  Fox  River  Paper  Co.  v.  Snider 
Paper  Co.,  30  W.  L.  B.   329    (1S96). 

Right  of  directors  to  apply  for  receiver. 

The  court  has  no  power  on  the  application 
of  the  directors  of  a  building  association,  as 
such,  and  who  assert  no  individual  rights  in 
the  property  of  the  corporation,  to  divest  the 
stockholders,  without  notice  or  consent,  of 
the  control  of  their  property  and  place  it  in 
the  hands  of  an  officer  of  the  court  for  man- 
agement and  administration.— Schone  v.  Con- 
solidated, etc.,  Co.,  4  N.  P.  216  (1897);  s.  c, 
G  Dec.  24G. 

When  receiver  appointed  on  the  ground 

of  misconduct  of  directors. 

A  court  of  equity  has  authority,  at  the  suit 
of  a  stockholder,  to  enjoin  unlawful  conduct 
on  the  part  of  the  directors  of  a  corporation, 
and  if  in  such  actions  it  may  be  made  clearly 
to  appear  to  the  court  that  the  appointment 
of  a  receiver  is  really  necessary  to  effect  the 
purpose  of  the  suit.  as.  for  instance,  if  it 
clearly  appear  that  unless  the  property  is 
placed  in  the  hands  of  an  officer  of  the  court 
it  will  be  fraudulently  and  instantly  disposed 
of  by  the  directors,  a  receiver  may  be  ap- 
pointed. But  in  the  absence  of  such  necessity, 
and  where  full  relief  may  be  afforded  by  in- 


junction, the  appointment  of  a  receiver  is  an 
abuse  of  discretion. —  Cincinnati,  etc.,  R.  R. 
Co.  v.  Duckworth,  2  O.  C.  C.  518  (1887)  ;  s.  c, 
1  C.  D.  618;  North  Fairmount,  etc.,  Co.  v. 
Rehn,  6  N.  P.  185  (1S99);  s.  c,  8  Dec.  594; 
s  c  5  N.  P.  314;  s.  c,  7  Dec.  398.  See  Robison 
v.  Cleveland,  etc.,  Ry.  Co.,  5  N.  P.  293  (1898)  ; 
s.  c,  7.  Dec.  312;  Equitable  Nat.  Bank  v.  Guck- 
enberger,  5  N.  P.  319;  s.  c,  5  Dec.  438;  Stra- 
man  v.  North  Baltimore,  etc.,  Co.,  8  0.  C.  C. 
89  (1893);  s.  c,  4  C.  D.  339;  Behrens  v. 
Equality  Bldg.  Ass"n,  2  N.  P.  259  (1S95)  ;  s.  c, 
3  Dec.  275;  Merrill  v.  Lake.  16  Oh.  373,  403 
(1847);  Baker  v.  Fraternal  Mystic  Circle,  32 
W.  L.  B.  84  (1894)  ;  s.  c,  1  Dec.  579;  Goebel 
v.  Herancourt  Brewing  Co.,  7  N.  P.  230;  s. 
c,  2  Dec.  377    (1893). 

Where  stockholder  entitled  to  appoint- 
ment of  receiver. 

Chancery  will  not.  at  the  suit  of  a  stock- 
holder, take  jurisdiction  of  distinct  and  sepa- 
rate matters  and  unite  with  them  the  set- 
tlement of  the  transactions  of  a  corporation 
in  one  suit,  because  such  single  litigation  may 
prevent  a  sacrifice  of  property,  and  be  most 
beneficial  to  stockholders  and  creditors.— 
Merrill  v.  Lake,  16  Oh.  373   (1847). 

Receiver  not  appointed  because  cred- 
itors are  pressing  claims. 

See  Moss  Nat.  Bank  v.  Lakeside  Co.,  19  0. 
C.  C.  365  (1900);  Merrill  v.  Lake,  16  Oh.  373, 

403    (1847). 

Not  appointed  when  voluntary  liqui- 
dation is  possible. 

A  receiver  will  not  be  appointed  to  wind 
up  the  affairs  oi  a  debenture  company  which 
is  desirous  of  going  into  voluntary  liquida- 
tion, the  liabilities  of  which  do  not  appear 
to  exceed  its  assets  by  an  amount  greater 
than  can  be  collected  from  its  solvent  stock- 
holders who  stand  ready   to  pay. 

Quaere. —  Can  the  corporation  be  required 
to  give  bond  for  faithful  administration? — 
See  Everhardt  v.  United  States  Investment, 
etc.,  Co.,  8  N.  P.  463   (1901). 

An  application  for  a  receiver  may  be 
such  fraud  as  to  creditors  as  to  jus- 
tify  an   attachment. 

See  Bacon  v.  Northwestern  Stove  Co.,  5  0. 
C.  C.  289   (1S91)  ;  s.  c,  3  C.  D.  143. 
When    surety   of   corporation   may   have 

receiver   appointed. 

Where  an  insolvent  corporation  is  sued  by 
one  of  its  sureties  under  §  5845,  as  a  means  of 
protecting  the  funds,  a  receiver  may  be  ap- 
pointed.—  Barbour  v.  National  Exchange 
Bank,  45  Oh.  St.  133  (1887). 
Action  to  enforce  stockholders'  lia- 
bility. 

In  an  action  to  enforce  payment  of  the 
statutory  liability  of  stockholders  in  an  Ohio 
corporation,  a  receiver  may  be  appointed  by 
the  court  to  collect  and  distribute  the  funds, 
and  such  receiver  may  be  authorized  to  main- 
tain in  his  own  name  actions  to  enforce  pay- 


I\  ECEIVERS    OF    (  !OB  PORATIONS. 


589 


Appointment,  etc.,  of,   §  5587. 


merit  of  judgments  rendered  for  statutory  lia-  Title  to  property. 

bility.     Zieverink   v.    Kemper,  50  Oh.   St.  208  Bee   Lafayette  Bank   v.  Buckingham,   L2  Oh. 

(1893).    See  Clarke  v.  Thomas,  34  Oh.  St.  46  St.    L19,   125   (1861) ;    Phoenix    Ln 

J  is77).  ersox,  6  0.  C.  C.  L,  5  i  L891  I  ;  -.  c,  3  (     D    321. 


Receiver  will  be  appointed  for  a  bond 
company  operating  on  a  lottery  basis. 
Where  a  bond  and  investmenl  company  ia 
operated  on  a  Lottery  basis,  a  court  of  equity 
will  appoint  a  receiver  to  preserve  the  funds 
for  distribution  among  those  interested. 
Shaw  v.  Interstate,  etc.,  Co.,  5  N.  P.  411 
(1898);  s.  C,  8  Dec.  510;  Central,  etc.,  Co.  V. 
Jones,  3G  W.  L.  B.  87    (1896). 

Appointment    of    receiver    without    no- 
tice. 

The  appointment,  of  a  receiver  to  take  from 
the  defendant  the  possession  of  its  property 
cannot  be  lawfully  made  without  notice,  un- 
less the  delay  required  to  give  such  notice  will 
result  in  irreparable  loss.— Railway  Co.  v. 
Jewett,  37  Oh.  St.  649  (1882). 

Consent  of  company. 

Where  there  is  no  ground  for  the  appoint- 
ment of  a  receiver,  the  consent  of  the  com 
pany  cannot  confer  jurisdiction  upon  the 
court. —  Moss  Nat.  Bank  v.  Lakeside  Co.,  19 
<>.('.('.  365  (1900)  ;  s.  c,  10  C.  D.  542. 

Where    property    is    in    another    county. 

When  after  the  appointment  of  a  receiver  it 
will  be  necessary  to  commence  ancillary  pro- 
ceedings in  another  county  to  determine  prop- 
erty rights,  the  matter  of  the  appointment  of 
a  receiver  will  be  left  to  the  court  having 
jurisdiction  of  the  property. —  Moss  Nat. 
Bank  v.  Lakeside  Co.,  19  O.  C.  C.  365  (1900)  ; 
s.  c,  10  C.  D.  542. 

Insolvency,   how   proved. 

When  the  insolvency  of  a  corporation  is  one 
of  the  essential  elements,  constituting  the 
basis  of  the  plaintiff's  claim  for  relief  against 
the  corporation,  such  insolvency  must  be 
proven  by  a  preponderance  of  the  testimony. 
It  will  not  be  sufficient  by  the  proof  to  merely 
raise  a  doubt  as  to  the  solvency  of  the  cor- 
poration.—  North  Fairmount.  etc.,  Co.  v. 
Rehn,  6  N.  P.   185   (1899)  ;  s.  c,  8  Dec.  594. 

Action   for  receiver  —  parties. 

The  creditors  are  proper  parties  to  an  ac- 
tion which  seeks  the  appointment  of  a  re- 
ceiver.—  Walbridge  v.  LTnion  Mfg.  Co.,  7  N. 
P.  430;   s.  c,  5  Dec.  203. 

Actions    against    company   while    in   re- 
ceiver's hands. 

See  Mather  v.  Cincinnati  Ry.  Co.,  3  O.  C.  C. 

2S4  (1S88)  ;  s.  c.,  2  C.  D.  161.    See  also  §  4991. 

Power   of  corporation   over  property  in 
hands    of    receiver. 

See  Donner  v.  Dayton,  etc.,  R.  R.  Co..  1  C. 

S.  C.   130   (1871). 


Receiver    is   not   the    agent    of   the    com- 
pany. 

See  ( Consolidated  <    >a  1  Co.  v.  '  'incinnat  i 
l,\   l;.  Co.,  id  W.  L.  B.  42   (1  - 

Liability  of  receiver  for  negligence. 

See  Murphy  v.  Holbrook,  20  Oh.  St.  137 
i  L870)  :  Pottei  v.  Bunnell,  20  Oh.  St.  150 
I  L870). 

Power  of  court  to  wind  up  corporation. 

In  the  absence  of  statutory  authority,  a 
court,  of  equity  has  no  right,  a1  the  suit 
stockholder,  to  take  any  step  for  the  sole  pur- 
pose, or  the  primarj  object  of  which  is  to  wind 
up  the  affairs  of  a  corporation,  or  in  ordinary 
cases  take  the  control  and  management  1 1 
from  the  directors,  even  on  the  ground  of 
fraud  or  mismanagement,  or  the  inso  irency  of 
the  company. —  Cincinnati,  etc.,  R.  R.  Co.  v. 
Duckworth.'  2  O.  C.  C.  518  i  1887)  ;  b.  e.,  1  C. 
1).  CIS:  North  Fairmount,  etc.,  I  o.  v.  Kchn. 
6  N.  P.  is:.  (1899);  s.  c,  8  Dec  594;  Cronin 
v.  Potters'  Co.-Op.  Co..  29  W.  L.  I'..  52   ' 

Bui  see  Everhardl  v.  United  state-  Invest- 
ment Co.,  8  N.  P.  525   (1901). 

■When    creditor    cannot    attach    in    for- 
eign state. 

The  court  appointing  a  receiver  has  power 
to  order  a  creditor,  residing  within  the  juris- 
diction, to  dismiss  attachment  proceeding 
gun  by  him  in  a  foreign  state.—  Besuden  v. 
Besuden  Co.,  3  N.  P.  165  (1890)  ;  s.  c,  4  Dec. 
144. 

Lien    of    attaching    creditor    as    against 
receiver. 

Where,  before  the  appointment  of  a  re- 
ceiver, an  attachment  and  levy  are  made  by  a 
creditor  on  the  assets  of  a  corporation,  carry- 
ing on  it-  business,  though  in  fact  insolvent, 
the  receiver's  rights  will  be  subject  to  the  lien 
obtained  by  attachment. —  Ford  v.  Lamson,  17 
O.  C.  C.  539  (1899).  See  New  Vor*  Rubber 
Co.  \.  Gandy  Belting  Co.,  11  O.  C.  C.  618 
(1896);  s.  c.  5  C.  D.  286. 

Liability   for   receivers   for   taxes. 

See  McNeill  v.  Hagerty,  51  Oh.  St.  255,  265 
(1894i  :  Sandheger  v.  Banner  Brewing  Co.,  6 
\.  p.    HO  I  L899)  :   3.  c,  8  He,-.  592 

Receivers  of  railroads. 

Se  •  §  3415  et  seq. 

Propriety  of  appointing  receiver   of  in- 
solvent  corporation. 
See  Cheney  v.  Maumee  Cycle  Co..  20  O.  C.  C. 

19  (1900)  :  s.  c,  Sup.  Ct.  1901.  45  W.  L.  B.  175. 


590 


Private  Corporations  in  Ohio. 


Receiver,  Eligibility,  Oath,    Bond,    Powers,    etc.,    §§    5588-5591. 


§  5588.  WHO  INELIGIBLE  AS  RECEIVER.— No  party,  attorney,  or  person, 
interested  in  an  action,  shall  be  appointed  receiver  therein,  except  by  consent  of  the 
parties.     (March   14,   1853,   51   v.   57,   §  254.) 


within  the  direct  prohibition  of  this  section. — 
Moss  Nat.  Bank  v.  Lakeside  Co.,  19  0.  C.  C. 
305   (1900) ;   s.  c,   10  C.  D.  542. 


Stockholders   and   directors  ineligible. 

The  appointment  of  one  who  at  the  time  of 
his  appointment  as  receiver  was  a  stockholder, 
director  and  treasurer  of    the   corporation,  is 

§  5589.  OATH  AND  UNDERTAKING  BY  RECEIVER.—  The  receiver,  before  he 
enters  upon  his  duties,  must  be  sworn  to  perforin  them  faithfully,  and,  with  surety 
approved  by  the  court,  judge,  or  clerk,  execute  an  undertaking  to  such  person,  and  in 
such  sum,  as  the  court  or  judge  shall  direct,  to  the  effect  that  he  will  faithfully  dis- 
charge the  duties  of  receiver  in  the  action,  and  obey  the  orders  of  the  court  therein. 
(March   14,    1853,   51   v.   57,    §   255.) 

§  5590.  POWERS  OF  RECEIVER.— The  receiver  shall  have  power,  under  the 
control  of  the  court,  to  bring  and  defend  actions  in  his  own  name,  as  receiver,  to  take 
and  keep  possession  of  the  property,  to  receive  rents,  collect,  compound  for,  and  com- 
promise demands,  make  transfers,  and  generally  to  do  such  acts  respecting  the  prop- 
erty as  the  court  may  authorize.     (March  14,   1853,   51   v.   57,   §  256.) 

Akron,   etc.,   R.   R.   Co..   6  N.  P.   291    (1899); 
s.  c,  8  Dec.  107. 


Powers  of  foreign  receivers. 

See  Bank  v.  McLeod,  38  Oh.  St.  174  (1882) 
Barbour  v.  Lockard,  11  W.  L.  B.  319   (1884) 
Wilson   v.    Gifford,    12   O.    C.    C.   597    (1896) 
President,  etc.,  of  Manhattan  Co.  v.  Maryland 
Steel   Co.,   31    W.    L,    B.    100    (1S94);    s.    c,    1 
Dec.  286 ;  Besuden  v.  Besuden  Co.,  3  N.  P.  165 
(1896);   s.   c,  4  Dec.   144. 

Power  to  sell  property. 

A  receiver  acts  under  orders  and  directions 
of  the  court,  and  the  only  title  or  property  he 
can  convey  is  that  ordered  by  the  court  to  be 
sold;  therefore,  should  he  include  in  the  sale 
property  not  ordered  sold,  and  such  sale  is 
afterward  confirmed  by  the  court,  it  must  be 
considered  as  confirmed  inadvertently. —  Cin- 
cinnati, etc.,  R.  R.  Co.  v.  Cincinnati,  etc.,  Ry. 
Co.,  6  N.  P.  427    (1899);  s.  c,  9  Dec.  493. 

Power   over  real   estate. 

See  Chenev  v.  Maumee  Cycle  Co.,  45  W.  L. 
B.  175   (1901). 

Receiver  succeeds  to  rights  of  all  par- 
ties —  may  set  aside  invalid  mort- 
gages. 

A  receiver  for  the  property  of  an  insolvent 
corporation  appointed  in  a  suit  in  behalf  of 
its  general  creditors  succeeds  to  the  rights  of 
the  creditors  as  well  as  of  the  corporation, 
and  may  avoid  a  chattel  mortgage  given  by 
the  corporation,  void  as  to  creditors  under  a 
state  statute  for  want  of  filing,  though  it  is 
valid  as  against  the  corporation. —  Bayne  v. 
Brewer  Pottery  Co.,  90  Fed.  754  (1898). 

Same  subject. 

Receivers  of  corporations  are  not  the  repre- 
sentatives of  the  corporation  alone,  but  are 
also  representatives  of  its  creditors,  subject  to 
the    orders    of    the    courts. —  See    Rogers    v. 


Same  subject  —  may  set  aside  judgment. 

A  receiver  appointed  for  a  corporation  has 
authority  under  the  control  of  the  court,  in 
his  name  as  such  receiver,  to  file  a  motion  to 
set  aside  a  judgment  entered  against  the  cor- 
poration.— Smead  Foundry  Co.  v.  Chesbrough, 
18  O.  C.  C.  783   (1895);  s.  c,  6  C.  D.  670. 

Suii:    to    set    aside    fraudulent    convey- 
ance. 

Where  a  receiver  fails  to  sue  to  set  aside  a 
fraudulent  conveyance,  a  creditor  may  com- 
mence such  suit  making  the  receiver  and  all 
interested  parties,  such  action  being  substan- 
tially an  application  to  the  court  for  an  order 
on  the  receiver. —  Monitor  Furnace  Co.  v.  Pet- 
ers, 40  Oh.  St.  575  (1884). 

Mandamus  against  receiver. 

Where  the  court  of  common  pleas,  having 
jurisdiction  in  an  action  against  a  railroad 
corporation,  has  appointed  a  receiver,  who  is 
in  possession  and  is  operating  the  road  under 
the  orders  of  the  court,  a  mandamus  will  not 
be  issued  against  such  corporation  and  re- 
ceiver directing  their  conduct  in  operating  the 
road. —  State  ex  rel.  v.  Marietta,  etc.,  R.  R. 
Co.,  35  Oh.  St.  154   (187S). 

Unrecorded    mortgage,    priority    of    re- 
ceiver. 

See  Cheney  v.  Maumee  Cycle  Co.,  45  W.  L. 
B.  175   (1901). 

Receiver  may  sue  in  name  of  company. 

See  Ohio,  etc..  R.  R.  Co.  v.  Indianapolis, 
etc.,  R.  R.  Co.,  5  A.  L.  Reg.  733  (1866):  Mi- 
ami Exporting  Co.  v.  Gano,  13  Oh.  269  (1844). 


§  5591.     INVESTMENT  OP  FUNDS  BY  RECEIVER.— Funds  in  the  hands  of  a 
receiver  may  be  invested  upon  interest,  by  order  of  the  court;  but  no  such  ordsr  shall 


Receivers  of  Corporations.  591 

Orders  of  Court  as  to  Funds,  etc.,  88  5592,  5593. 

be  made  except  upon  the  consent  of  all  the  parties  to  the  action.     (March  14,  1853,  51 
v.   57,  8  257.) 

§  5592.  DISPOSITION  OF  PROPERTY  IN  HANDS  OF  TRUSTEE.—  When  it  is 
admitted  by  the  pleading  or  on  the  examination  of  a  party  that  he  has  in  his  posses- 
sion, or  under  his  control,  any  money  or  other  thing  capable  of  delivery,  which,  being 
the  subject  of  the  litigation,  is  held  by  him  as  trustee  for  another  party,  or  which 
belongs  or  is  due  to  another  party,  the  court  may  order  the  same  to  be  deposited  in 
court,  or  delivered  to  such  party,  with  or  without  security,  subject  to  the  further 
direction  of  the  court     (March  14,  1853,  51  v.  57,  8  258.) 

§  5593.  HOW  CERTAIN  ORDERS  OF  COURT  MAY  BE  ENFORCED.— When  a 
court,  in  the  exercise  of  its  authority,  orders  the  deposit  or  delivery  of  money  or  other 
thing,  and  the  order  is  disobeyed,  the  court,  besides  punishing  the  disobedience  as  for 
a  contempt,  may  make  an  order  requiring  the  sheriff  to  take  the  money  or  thing,  and 
deposit  or  deliver  it  in  conformity  with  the  direction  of  the  court.  (March  14,  1853, 
51  v.  57,  §  259.) 


PART    XXV. 

DISSOLUTION  OF  CORPORATIONS. 

§  5G51.  When   corporation  may  petition  for  dissolution. 

§  5652.  What   the  petition  must  contain. 

§  5053.  Affidavit  to  be  attached  to  petition. 

§  5654.  Notice  of  the  pendency  of  the  petition. 

§  5G55.  Hearing  before  the  master. 

§  5656.  When  a  judgment   for   dissolution  to   be  rendered. 

§  5657.  Who  may  be   appointed  receiver. 

§  565S.  Rowers   of  receiver. 

§5659.  Unpaid  subscription  to  be  collected. 

S  5660.  Duties  of  trustees. 

§  5661.  Transfers  pending  the  action  void. 

^§  560'\  Duties  of  creditors  and  other  persons. 

§  5663.  Meeting  of  creditors. 

§  5664.  How  contingent  engagements  discharged. 

§  5665,  Receiver's  compensation. 

§  5666.  Receiver  to  retain  money  for  certain  purposes. 

§  5667.  How  distribution  to  be  made. 

§  5668.  When  dividend  may  be  made. 

§  5669.  Receiver  to  act  on  order  of  court. 

ft  S670.  Account  of  receiver  to  court. 

§  5671.  Report  of  referee  on  receivers  account. 

§  5672.  Further  duties  of  receiver. 

U—§  5673.  When  one-fifth  of  stockholders  may  require  a  dissolution. 

\^§  5674.  How  certain  corporations  may   surrender  charter. 

<;  r,074a.        Inactive    corporations,    surrender    of    corporate    power-;. 

§5075.         Directors  a1    time  of  dissolution   maj    settle  affairs  of   corporation. 

§  5676.  When  the  last  board  is  without  a  quorum. 

§  5677.  Petitions  under  preceding  section. 

■§  5678.  Trustees  appointed  succeed  to  rights  of  predecessor. 

§  5679.         No  action  shall  abate  by  dissolution  of  corporation. 

§  5680.         Judgment  by  or  against  such  corporations  may  be  enforced. 

§  5681.         Title  to  property  of  corporation  to  pass  to  trustees. 

§  56S2.         Trustees  personally  liable  for  an  abuse  of  trust. 

§  5683.         Dissolved  corporation  may  prosecute  action  in  its  own  name. 

§  5684.         May  be  sued  by  corporate  name ;  service  of  process. 

§  5685.         Judgments  for  or  against  may  be  revived. 

§  5686.         Error  may  be  prosecuted  on  judgments  for  or  against. 

%  5687.         Directors  may  appoint  trustees  to  settle  affairs  of  corporation. 

%  5688.         Removal  and  duties  of  trustees. 

§  5651.  WHEN  CORPORATION  MAY  PETITION  FOR  DISSOLUTION.— When 
a  majority  of  the  directors,  trustees,  or  other  officers  having  the  management  of  the 
concerns  of  any  corporation,  or  stockholders  representing  not  less  than  one-third  of 
the  capital  stock  of  any  corporation,  organized  under  the  laws  of  the  state,  discover 
that  the  stock,  property,  and  effects  of  the  corporation  have  been  so  far  reduced  by 
losses  or  otherwise  that  it  will  not  be  able  to  pay  all  just  demands  to  which  it  may 

[592] 


Dissolution  of  Corporations. 


593 


Petition  for,  to  Contain,  etc.,   8   5652. 


be  liable,  or  to  afford  a  reasonable  security  to  those  who  may  deal  with  it,  or  deem 
it  beneficial  to  the  interests  of  the  stockholders  that  the  corporation  be  dissolved,  or 
when  such  directors,  trustees,  or  other  officers  are  authorized,  by  a  majority  of  the 
stockholders,  to  apply  for  a  judgment  as  hereinafter  provided,  or  when  the  objects  of 
the  corporation  have  wholly  failed,  or  are  entirely  abandoned,  or  it  is  impracticable 
to  accomplish  such  objects,  they  may  apply  to  the  court  of  common  pleas  of  the 
county,  or  the  superior  court  of  the  city  or  county  in  which  the  principal  place  of  con- 
ducting the  business  of  the  corporation  is  situate,  by  petition,  for  the  dissolution  of 
such  corporation,  pursuant  to  the  provisions  of  this  chapter.  (March  29,  1875,  72 
v.  138,  §   1.) 


Modes  of  dissolution  before  Code. 

Before  the  Code,  the  modes  by  which  private 
corporations  were  dissolved  were  first,  by  the 
death  of  its  members;  second,  surrender  of  its 
franchises,  and  third,  a  judgment  of  forfeiture 
for  nonuser  or  abuse. —  Trustees,  etc.  v.  Zanes 
ville,  etc.,  Co.,  9  Oh.  203   (1839). 

Henioval  froni  state  does  not  effect  dis- 
solution. 

Lander  v.  Burke,  65  Oh.  St.  532   (1902). 

Dissolution  by  sale  of  property. 

A  corporation  is  not  dissolved  by  a  sale  of 
all  its  property. —  See  Donner  v.  Dayton,  etc.. 
R.  R.  Co.,   1  C.  S.  C.  130,  139   (1871). 

Power  of  court  to  wind  up  corporation. 

In  the  absence  of  statutory  authority,  a 
■court  of  equity  has  no  right,  at  the  suit  of  a 
stockholder,  to  take  any  step  for  the  sole  pur- 
pose, or  the  primary  object  of  which  is.  to 
wind  up  the  affairs  of  a  corporation. —  Cin- 
cinnati, etc.,  R.  R.  Co.  v.  Duckworth,  2  O.  C. 
C.  518  (1887);  s.  c,  1  C.  D.  018:  North  Fair- 
mount,  etc.,  Co.,  v.  Rehn,  G  N.  P.  185  (1899)  ; 
s.  c,  8  Dec.  594;  Robison  v.  Cleveland,  etc.. 
Ry.  Co.,  5  N.  P.  293  (1899)  ;  s.  c,  7  Dec.  312; 
Cronin  v.  Potters'  Co.-op.  Co.,  29  W.  L.  B.  52 
(1892);  Goebel  v.  Heraneourt  Brewing  Co.,  7 
N  P.  231  (1893);  s.  c,  2  Dec.  377;  Schone  v. 
Consolidated,  etc.,  Co..  4  N.  P.  216  (1897); 
s  c  6  Dee.  240:  Woods  v.  Equitable  Deben- 
ture Co.,  8  N.  P.  125   (1900). 

Question     of    jurisdiction  —  how    deter- 
mined. 

Where  the  question,  whether  the  court  in  an 
action  for  the  dissolution  of  a  corporation  had 
jurisdiction  of  the  subject-matter  thereof  is 
raised  by  the  pleadings  in  the  case,  it  is  to  be 
tried  aiid  determined  as  any  other  issue  of 
fact  arising  thereon. —  Mercantile  Trust  Co. 
v.  ^Etna  Iron  Works,  4  O.  C.  C.  579  (1890)  ; 
s.  c,  2  C.  D.  718. 

Principal  place   of   conducting  business 
—  meaning. 

The  "  principal  place  of  this  section  is  the 
same  as  principal  office  "  of  §  3855.—  Mercan- 
tile Trust  Co.  v.  .Etna  Iron  Works,  4  0.  C.  C. 
579,  588   (1890)  ;  s.  c,  2  C.  D.  718. 


Parties  —  lienholders. 

In  an  action  for  the  dissolution  of  a  cor- 
poration, the  holders  of  lien-  on  the  real  es- 
tate <>r  personal  property  of  the  corporation 
arc  proper  if  no1  necessary  parties.  Mercan- 
tile Trusl  Co.  v.  /Etna  Iron  Works,  L  O.  C.  C. 
579   (1890)  :   s.  <•..  -i  C.  1).  718. 

Appeal  and  error. 

Appeal   from   the  couri   of  common  pleas  to 

the  emu!  of  the  circuit  does  nut  lie  in  pro- 
ceedings mnlcr  this  section.  -Brown  v.  Say- 
lcr,  54  oh.   St.   246    I  L896). 

Costs. 

Where  the  directors  of  a  company  fi'e  a 
tion  under  Ihis  section,  and  it  appears  to  the 
court  that  the  corporation  ha-  no  property 
liable  to  execution  for  the  paym  :n1  of  costs  of 
the  proceedings,  the  court  may  order  that  the 
directors  pay  such  costs  (masters'  fees),  and 
that  in  default  of  such  payment  execution 
should  issue  against  them  therefor. —  Godley 
v.  Pugh,  29  oh.  St.  438  I  1876). 

Dissolution  of   building   and  loan   asso- 
ciations. 

See    §    3836-3. 

Dissolution  of  railroad  companies. 

See  §  3363. 

Dissolution     does     not     terminate     lia-  j 

bility. 

Where  a  corporation  is  liable  in  damages 
to  an  agent  for  having  wrongfully  discharged 

him  from  its  service  under  a  contract  for  a 
definite  period,  and  is  subsequently  dissolved 
on  petition  of  it-  stockholders,  iL-Xcmajji-  lia- 
ble to  the  party  injured  notwithstanding  the 
dissolution. —  Tiffin  Glass  Co."- v.  Stoehr,  54 
Oh.  St.   157    (1896). 

"When  equity   will  interfere. 

Where  a  corporation  is  proceeding  in 
faith,  under  the  statute,  to  wind  up  its  affairs, 
a  court  of  equity  will  not  interfere  unit—  it 
appears  that  the  remedy  furnished  by  the 
statute  is  inadequate.  North  Fairmount, 
etc.,  Co.  v.  Rehn,  6  N.  P.  185   (1899). 


§  5652.  WHAT  THE  PETITION  MUST  CONTAIN.— Such  application  shall 
contain  a  statement  of  the  reasons  which  induce  the  applicants  to  desire  a  dissolution 
of  the  corporation,  and  there  shall  be  annexed  thereto  — 

LAW    GOV.    PRIV.    CORP. —  3§ 


594  Private  Corporations  in  Ohio. 


Affidavit -to  Petition,  Notice,  Hearing,  Judgment,  etc.,  §§  5653-5656. 


1.  A  full,  just,  and  true  inventory  of  all  the  estate,  both  real  and  personal,  in  la-w- 
and equity,  of  the  corporation,  and  of  all  the  books,  vouchers,  and  securities  relating 

thereto. 

2.  A  full,  just,  and  true  account  of  the  capital  stock,  if  any,  of  the  corporation, 
specifying  the  names  of  the  stockholders,  their  residence  when  known,  the  number  of 
shares  belonging  to  each,  the  amount  paid  in  upon  such  shares  respectively,  and,  the 
amount  still  due  thereon. 

3.  A  statement  of  all  the  incumbrances  on  the  property  of  the  corporation,  and  of 
all  engagements  entered  into  by  it  which  have  not  been  fully  satisfied  or  canceled, 
specifying  the  place  of  residence  of  each  creditor,  and  of  every  person  to  whom  such 
engagements  were  made,  if  known,  and  if  not  known,  the  fact  to  bs  so  stated,  and 
the  sum  owing  to  each  creditor,  the  nature  of  sach  debt  or  demand,  and  the  true  causa 
and  consideration  of  such  indebtedness.      (April  15,   1867,  64  v.   153,  §  2.) 


Accounts  must  be  set  forth  in  petition. 

A  petition  under  this  section  must  contain 
the  amounts  and  inventories  of  all  the  estate 
of  the  corporation.  There  is  no  provision  of 
the  statute  for  substituting  an  excuse  for  not 
doing  what  the  statute  requires  shall  be  done. 
It  is  within  the  power  of  the  court  to  give  the 


petitioners  access  to  the  books  of  the  corpora- 
tion to  enable  them  to  furnish  the  material 
required  to  be  set  forth,  but  until  such  ma- 
terial is  set  forth,  the  court  has  no  authority 
to  make  an  order  under  §  5654. —  Fitch  v. 
Sprague  Carria2e  Co.,  19  0.  C.  C.  296  (1900); 
-.  c,  10  C.  D.  520. 


§  5653.  AFFIDAVIT  TO  BE  ATTACHED  TO  PETITION.—  To  every  such  peti- 
tion there  shall  also  be  annexed  an  affidavit  of  one  or  more  of  the  applicants,  or  in 
case  they  are  all  non-residents  of  the  county  in  which  the  petition  is  filed,  then  an 
affidavit  of  the  agent  or  attorney  of  one  or  more  of  the  applicants,  that  the  facts 
stated  in  the  application,  and  the  accounts,  inventories,  and  statements  contained 
therein  or  annexed  thereto,  are  just  and  true,  so  far  as  the  affiant  knows,  or  has  the 
means  of  knowing.      (April  25,   1902,  95  v.  274;  April  15,  1867,  64  v.  153.) 

§  5654.  NOTICE  OF  THE  PENDENCY  OF  THE  PETITION.—  Upon  such 
petition,  accounts,  inventories,  and  affidavit  being  filed,  an  order  shall  be  entered 
requiring  all  persons  interested  in  the  corporation  to  show  cause,  if  any  they  have, 
why  it  should  not  be  dissolved,  before  some  referee  or  master  commissioner  appointed 
by  the  court,  and  to  be  named  in  the  order,  at  a  time  and  place  therein  to  be  specified, 
not  less  than  three  months  from  the  date  thereof;  and  a  notice  of  the  contents  of  such 
order  shall  be  published  once  in  each  week,  for  three  weeks  successively,  in  some 
newspaper  published  and  of  general  circulation  in  the  county  wherein  the  princ'pal 
place  of  business  of  the  corporation  is  situate.     (April  15,  1867,  64  v.  153,  §§  4,  5.) 

§  5655.  HEARING  BEFORE  THE  MASTER.—  On  the  day  appointed  in  the  order 
the  referee  or  master  shall  proceed  to  hear  the  allegations  and  proofs  of  such  parties, 
take  testimony  in  relation  thereto,  and,  with  all  convenient  speed,  report  the  same  to 
the  court,  with  a  statement  of  the  property,  effects,  debts,  credits,  and  engagements 
of  the  corporation,  and  of  all  other  matters  and  things  pertaining  to  its  affairs. 
(April  15,  1867,  64  v.  153,  §  6.) 

§  5656.  WHEN  A  JUDGMENT  FOR  DISSOLUTION  TO  BE  RENDERED.— 
"When  the  report  is  made,  if  it  appear  to  the  court  that  the  corporation  is  insolvent, 
or  that  a  dissolution  thereof  will  be  beneficial  to  the  stockholders,  and  not  injurious 
to  the  public  interest,  or  that  the  objects  of  the  corporation  have  wholly  failed,  or 
been  entirely  abandoned,  or  that  it  is  impracticable  to  accomplish  such  objects,  a 
judgment  shall  be  entered  dissolving  the  corporation,  and  appointing  one  or  more 
receivers  of  its  estate  and  effects;  and  the  corporation  shall  thereupon  be  dissolved 
and  shall  cease.     (April   15,   1867,  64  v.   153.) 


When  receivers  can  be  appointed. 

Until  after  an  order  has  been  made  dissolv- 
ing the  corporation,  no  receiver  can  be  ap- 
pointed.      Section     5587     does     not     apply. — 

- 

/ 


Bacon  v.  Northwestern  Stove  Co..  5  O.  C.  C. 
289  (1891);  s.  c\,  3  C.  D.  143:  Mercantile 
Trust  Co.  v.  vEtna  Iron  Co.,  4  O.  C.  C.  579 
(1890)  ;  s.  c,  2  C.  D.  718. 


Dissolution  of  Corporations. 


595 


Receiver;  Appointment,  Duties,  etc.,   SS   5657  5661. 


§  5657.  WHO  MAY  BE  APPOINTED  RECEIVER.—  A  director,  trustee,  or  other 
officer  of  the  corporation,  or  any  of  its  stockholders,  may  be  appointed  a  receiver; 
and  a  receiver  shall,  before  entering  upon  the  duties  of  his  appointment,  give  such 
security  to  the  state,  and  in  such  penalty,  as  the  court  shall  direct,  conditioned  for 
the  faithful  discharge  of  the  duties  of  his  appointment,  and  for  the  due  accounting 
for  all  money  received  by  him.      (April  15,    1867,   64  v.    153,    §   8.) 

§  5658.  POWERS  OE  RECEIVER.—  Such  receiver  shall  be  vested  with  all  the 
estate,  real  or  personal,  of  the  corporation,  from  the  time  of  his  having  filed  the 
security  hereinbefore  required,  and  shall  be  trustee  of  such  estate  for  the  benefit  of 
the  creditors  of  the  corporation  and  its  stockholders;  and  he  shall  have  all  the  power 
and  authority  conferred  by  law  upon  trustees  to  whom  assignments  are  made  for  the 
benefit  of  creditors.      (April  15,   1867,  64  v.   153,  S§  9,   10.) 

How  receiver  forced  to  set  aside  trans- 
fer. 

Where  a  receiver,  appointed  on  the  dissolu- 
tion of  a  company,  takes  no  step  to  set  aside  a 
fraudulent  conveyance  of  corporate  property, 
a  creditor  may  commence  an  action  to  accom- 
plish that  purpose,  making  the  l-eceiver  and 
other  interested  persons  parties. —  See  Moni- 
tor Furnace  Co.  v.  Peters,  40  Oh.  St.  575 
(1884). 


Property  rights   acquired  by  receiver. 

There  passea  to  the  receiver  the  property 
and  rights  of  the  corporation,  precisely  in  the 
same  condition,  and  subjecl  to  the  same  equi- 
ties, as  they  were  held  ny  tli  corporation.  - 
Falkenbaeh  v.  Patterson,"  13  Oh.  St.  359,  367 
(1885).  See  Smith  v.  Johnson  oi  Oh.  St. 
486,  488  (1898). 


§  5659.  UNPAID  SUBSCRIPTION  TO  BE  COLLECTED—  If  there  be  any  sum 
remaining  due  upon  any  share  of  stock  subscribed  in  the  corporation,  the  receiver 
shall  immediately  proceed  and  recover  the  same,  unless  the  person  so  indebted  is 
wholly  insolvent,  and  for  that  purpose  may  commence  and  prosecute  an  action  for  the 
recovery  of  such  sum,  without  the  consent  of  any  creditor  of  the  corporation.  (April 
15,   1867,  64  v.   153,   §   11.) 


Dues   in  loan   associations. 

Payment  of  dues  in  building  and  loan  asso- 
ciations are  payments  upon  stock  subscrip- 
tions analogous  to  such  payments  in  other 
stock  corporations  upon  capital  stock.  When 
such  associations  go  into  liquidation  under 
this  act,  dues  are  no  longer  payable  except  as 
ordered  by  court  for  the  purpose  of  paying 
debts  and  equalizing  all  the  stockholders. — 
Hinman  v.  Rvan,  3  O.  C.  C.  529  (1888)  ;  s.  c, 
2  C.  D.  305. 

Collection    of    subscriptions  —  action. 

An  action  to  collect  an  unpaid  subscription 
to   the   capital   stock    of    a   corporation   com- 


menced  by  a   receiver  under  this  section  is  a 
suit  at  law  to  recover  a   money   judgment. — 

Smith  v.  Johnson,  57  Ohio  St.  -isr, 

Joinder  of  parties. 

It  is  not  proper  practice  for  such  receiver 
to  join  in  one  action  all  delinquent  stockhold- 
ers as  defendants,  those  who  reside  out  of  the 
county  where  the  suit  is  brought  as  well  as 
those  who  reside  within  such  county,  and 
issue  summons  to  another  county  to  obtain 
service  upon  such  nonresidents."  and  where 
this  is  done  a  proper  motion  to  set  a-ide 
service  will  be  sustained. —  Smith  v.  Johnson, 
57  Oh.  St.  486  (1898). 


§  5660.  DUTIES  OF  RECEIVERS.— The  receiver  shall,  immediately  on  h.s 
appointment,  give  notice  thereof,  which  shall  contain  the  same  matters  required  by 
law  in  notices  of  trustees  of  insolvent  debtors,  and  in  addition  thereto  it  shall  notify 
all  persons  holding  any  open  or  subsisting  contract  of  the  corporation  to  present  the 
same  to  him,  in  writing,  and  in  detail,  at  the  time  and  place  in  such  notice  specified, 
which  shall  be  published  for  three  weeks  in  some  newspaper  printed  and  of  general 
circulation  in  the  county  wherein  the  principal  place  of  business  of  the  corporation 
is  situate.     (April  15,    1867,  64  v.   153,   §   12.) 

i  §    5661.     TRANSFERS  PENDING  THE  ACTION  VOID.— All  sales,  assignments, 

transfers,  mortgages,  and  conveyances,  of  any  part  of  the  estate,  real  or  personal, 
including  things  in  action,  of  every  description,  made  after  the  petition  for  the  disso- 
lution of  the  corporation  is  filed,  in  payment  of  or  as  security  for  any  existing  or 


596  Private  Corporations  in  Ohio. 

Receiver;  Duties  as  to  Creditors,  Compensation,  etc.,   §§  5662-5666. 

1 

prior  debt,  or  for  any  other  consideration,  and  all  judgments  confessed  by  such  cor- 
poration after  that  time,  shall  be  absolutely  void  as  against  the  receiver  appointed 
en  such  petition,  and  as  against  the  creditors  of  the  corporation.  (April  15,  1867, 
64  v.   153,  §   13.) 


"What     is     a     preference     before     filing 
petitions. 

A  mortgage  given  to  secure  a  creditor,  made 
prior  to  the  riling  of  a  petition  under  this  act, 
but  in  contemplation  thereof,  is  fraudulent  as 
to  creditors. —  See  Damarin  v.  Huron  Iron 
Co.,  47  Oh.  St.  581    (1890). 


Assignments      after      filing      petition  — 
void. 

When  proceedings  to  dissolve  a  building 
and  loan  association  are  pending,  an  at- 
tempted assignment  of  a  mortgage  by  the  offi- 
cers of  the  corporation  is  void. — ■  Hinman  v. 
Kvan,  3  O.  C.  C.  529  (1888);  s.  c,  2  C.  D. 
305. 


§  5662.  DUTIES  OF  CREDITORS  AND  OTHER  PERSONS.— After  the  first 
publication  of  the  notice  of  the  appointment  of  a  receiver,  every  person  having  posses- 
sion of  any  property  belonging  to  the  corporation,  and  every  person  indebted  thereto, 
shall  account  and  answer  to  the  receiver  for  the  amount  of  such  debt,  and  for  the 
value  of  such  property;  and  all  the  provisions  of  law  in  respect  to  trustees  of 
insolvent  debtors,  the  collection  and  preservation  of  the  property  of  such  debtors, 
the  concealment  and  discovery  thereof,  and  the  means  of  enforcing  such  discovery, 
shall  be  applicable  to  such  receiver,  and  to  the  property  of  the  corporation,  except  as 
otherwise  provided  herein.     (April  15,  1867,  64  v.  153,  §§   14,  15.) 

§  5663.  MEETING  OF  CREDITORS. —  The  receiver  shall  call  a  general  meet'ng 
of  the  creditors  of  tne  corporation  within  four  months  from  the  time  of  his  appo  n> 
ment,  at  which  all  accounts  and  demands  for  and  against  the  corporation,  and  all  its 
open  and  subsisting  contracts,  shall  be  ascertained  and  adjusted,  as  fully  as  may  be, 
and  the  amount  of  money  in  the  hands  of  the  receiver  declared,  and  he  mry  settle 
controversies  that  arise  between  him  and  the  debtors  or  creditors  of  the  corporation 
by  arbitrament  or  reference.     (April  15,  1867,  64  v.  153,   §§  15,  16.) 

§  5664.  HOW  CONTINGENT  ENGAGEMENTS  DISCHARGED.— If  there  be 
any  open  and  subsisting  engagements  on  contracts  of  the  corporation  which  are  in  the 
nature  of  insurance,  or  contingent  engagements  of  any  kind,  the  receiver  may,  with 
the  consent  of  the  party  holding  such  engagements,  cancel  and  discharge  the  same  by 
refunding  to  such  party  the  premium  or  consideration  paid  thereon  by  the  corpora- 
tion, or  so  much  thereof  as  shall  be  in  the  same  proportion  to  the  time  which  remains 
of  any  risk  assumed  by  such  engagements,  as  the  whole  premium  bears  to  the  whole 
term  of  such  risk;  and  upon  such  amount  being  paid  by  the  receiver  to  the  person 
holding  or  being  the  legal  owner  of  such  engagement,  it  shall  be  deemed  canceled 
and  discharged  as  against  the  receiver.     (April  15,  1867,  64  v.  153,  §  17.) 

§  5665.  RECEIVER'S  COMPENSATION.—  The  receiver  shall,  in  addition  to  his 
actual  disbursements,  be  entitled  to  such  commissions  as  the  court  shall  allow,  not 
exceeding  the  sum  allowed  to  executors  or  administrators,  as  well  as  reasonable  coun- 
sel fees  for  services  rendered  him.     (April  15,  1867,  64  v.   153,  §  18.) 

§  5666.  RECEIVER  TO  RETAIN  MONEY  FOR  CERTAIN  PURPOSES  — The 
receiver  shall  retain  out  of  the  money  in  his  hands  a  sufficient  amount  to  pay  the 
sums  which  he  is  hereinbefore  authorized  to  pay,  for  the  purpose  of  canceling  and  dis- 
charging any  open  or  subsisting  engagements;  and  if  any  suit  be  pending  against 
the  corporation  or  the  receiver,  for  any  demand,  he  may  retain  the  proportion  which 
would  belong  to  such  demand  if  established,  and  the  necessary  costs  of  the  proceed- 
ings, to  be  applied  according  to  the  event  of  such  suit,  or  to  be  distributed  in  a  second 
or  other  dividend.     (April  15,  1867,  64  v.  153,  §§   19,  20.) 


Dissolution  of  Corporations.  597 


Receiver;  Distribution,  Account,  etc,   §|  5667-5672. 


5  5667.  HOW  DISTRIBUTION  TO  BE  MADE. —  The  receiver  shall  distribute 
the  residue  of  the  money  in  his  hands  in  the  payment  of  obligations  of  the  corpora- 
tion which  have  been  exhibited  by  creditors,  and  ascertained,  in  the  following  order: 

1.  Debts  entitled  to  a  preference  under  the  laws  of  the  United  States. 

2.  Mortgages,  judgments,  and  other  liens  on  the  real  estate  of  the  corporation, 
in  the  order  of  their  priority. 

3.  Debts  which  are  liens  upon  the  capital  stock  or  property  of  the  corporation, 
other  than  real  estate,  in  the  order  of  their  priority,  and  the  extent  of  the  value  of  the 
stock  or  other  property  on  which  they  are  liens.     (April  15,  1867,  64  v.   153,   j   21.) 

§  5668.  WHEN  DIVIDEND  MAY  BE  MADE.—  The  receiver  may,  from  time  to 
time,  make  dividends  of  the  money  in  his  hands,  among  the  creditors  of  the  corpora- 
tion, until  they  are  paid  in  full;  but  no  dividend  shall  be  made  to  the  stockholders 
of  the  corporation,  until  after  the  final  dividend  to  creditors;  and  if,  after  such  final 
dividend  is  made,  there  remain  any  surplus  in  the  hands  of  the  receiver,  he  shall  dis- 
tribute the  same  among  the  stockholders  of  the  corporation,  in  proportion  to  the 
respective  amounts  paid  in  by  them  severally  on  their  shares  of  stock.  (April  15, 
1867,  64  v.  153,  §§  21,  22.) 

Distribution  among  building   and  loan    association   members. 

See  In  re  Home,  etc.,  Assn,  3  N.  P.  145   (1896);  s.  c,  4  Dec.  272. 

§  5669.  RECEIVER  TO  ACT  ON  ORDER  OF  COURT.— The  receiver  shall  be 
subject  to  the  direction  and  control  of  the  court  as  to  the  time  of  making  dividends, 
both  to  the  creditors  and  stockholders  of  the  corporation,  and  as  to  the  time  of  clos- 
ing up  the  concerns  of  the  corporation,  and  rendering  his  final  accounts,  and  may  be 
compelled  to  account  at  any  time;  and  he  may  be  removed  by  the  court,  and  any 
vacancy  created  by  such  removal,  or  by  death,  or  otherwise,  may  be  filled  by  tha 
court.     (April  15,  1867,  64  v.  153,  §§  24,  25.) 

§  5670.  ACCOUNT  OF  RECEIVER  TO  COURT.— When  required  by  the  court 
the  receiver  shall  render  a  full  and  accurate  account  of  all  his  proceedings  to  the 
court,  on  oath,  which  may  be  referred  to  a  referee  or  master  commissioner  to  examine 
and  report  thereon;  but  before  he  renders  any  such  account  he  shall  insert  a  notice  of 
his  intention  to  present  the  same,  once  a  week,  for  three  consecutive  weeks,  in  some 
newspaper  printed  and  of  general  circulation  in  the  county  wherein  the  principal  place 
of  business  of  the  corporation  is  situate,  specifying  the  time  and  place  at  which  such 
account  will  be  rendered.     (April  15,  1867,  64  v.  153,  §S  26,  27.) 

§  5671.  REPORT  OF  REFEREE  ON  RECEIVER'S  ACCOUNT.— The  referee  to 
whom  such  account  is  referred  shall  hear  and  examine  the  proofs,  vouchers,  and  docu- 
ments offered  for  or  against  the  same,  and  shall  report  thereon  fully  to  the  court; 
and  when  the  report  is  made  the  court  shall  hear  the  allegations  of  all  concerned 
therein,  and  shall  allow  or  disallow  the  account,  and  may  decree  the  same  to  be  final 
and  conclusive  upon  all  the  creditors  of  the  corporation  upon  all  persons  who  have 
claims  against  it,  upon  any  open  or  subsisting  engagement,  and  upon  all  the  stock- 
holders of  the  corporation.     (April   15,   1867,  64  v.   153,   §§   28,  29.) 

§  5672.  FURTHER  DUTIES  OF  RECEIVER.—  The  receiver  shall  also  account, 
from  time  to  -cime,  in  the  same  manner,  and  with  like  effect,  for  all  money  which 
comes  to  his  hands  after  such  account  is  rendered,  and  for  all  money  retained  by  him 
for  any  of  the  purposes  hereinbefore  specified,  and  shall  pay  into  court  all  unclaimed 
dividends.     (April  15,  1867,  64  v.   153,   §  29.) 


598 


Private  Corporations  in  Ohio. 


Dissolution  by  Vote  of  Stockholders;  by  Surrender  of  Charter,   etc.,   §§    5673,   5674. 

§  5673.  WHEN  ONE-FIFTH  OF  STOCKHOLDERS  MAY  REQUIRE  A  DISSO- 
LUTION.—When  stockholders  owning  one-fifth  or  more  of  the  paid-up  stock  of  a 
corporation  organized  for  manufacturing  or  mining  file  in  the  office  of  the  clerk  of  one 
of  the  courts  mentioned  in  section  5651,  their  petition  containing  the  statement  that 
the  corporation  is  insolvent,  or  that  the  dissolution  thereof  will  be  beneficial  to  the 
stockholders,  or  that  the  objects  of  the  corporation  have  wholly  failed  or  been  entirely 
abandoned,  or  that  it  is  impracticable  to  accomplish  such  objects;  or  that  the  profits 
cf  the  business  are  being  diverted  from  the  best  interests  of  the  stockholders  equally 
or  that  the  business  of  the  corporation  cannot  be  profitably  conducted  and  that  they 
therefore  desire  a  dissolution  of  the  corporation  the  court  shall,  if  it  deem  it  beneficial 
to  the  interest  of  the  stockholders  make  an  order  requiring  the  officers  of  the  corpora- 
tion within  reasonable  time  to  file  in  court  the  inventories,  accounts  and  statements 
required  by  section  5652  and  upon  the  filing  thereof  the  court  shall  proceed  as  pro- 
vided in  section  5654  requiring  all  persons  interested  in  the  corporation  to  show  cause 
if  any  they  have  why  such  corporation  should  not  be  dissolved  and  the  court  shall, 
if  it  deem  it  beneficial  to  the  interests  of  the  stockholders,  adjudge  the  dissolution 
of  the  corporation  in  conformity  with  the  provisions  of  this  chapter  made  upon  find- 
ing that  the  statements  contained  in  the  petition  are  true  and  upon  such  proceeding 
being  had  such  other  and  further  proceeding  shall,  in  the  judgment  of  the  court,  be 
had  for  the  final  settlement  and  adjustment  of  the  affairs  of  the  corporation  as  are 
hereinbefore  provided  should  be  had.  (April  10,  1896,  92  v.  138;  March  20,  1875, 
72  v.  67,   §  1.) 


Only    legal    owners    of    stock    can    take 
proceedings. 

Only  the  registered  legal  stockholders,  and 
not  equitable  stockholders,  can  take  proceed- 
ings under  this  section. —  Armstrong  v. 
Herancourt    Brewing    Co.,    26    W.    L.    B.    39 

(1891). 

Stockholders    may    withdraw    from    the 
petition. 

It  seems  that  any  of  the  petitioning  stock- 
holders may  withdraw  and  cease  to  prosecute 
the  proceeding  at  any  time  before  dissolution 
is  ordered. —  See  Herancouit  Brewing  Co.  v. 
Armstrong,  G  O.  C.  C.  468  (1892);  s.  c,  3  C. 
D.   541. 

Ownership    of    one-fifth    of    stock  —  how 
tried. 

On  the  filing  of  a  petition  which  fills  all  the 
requirements  of  the  statute  in  form,  it  is  the 
duty  of  the  court  to  order  the  filing  of  inven- 
tories, and  before  the  trial  on  the  merits, 
under  §  5655  and  §  5656,  the  corporation  can- 
not question  the  ownership  of  stock. —  See 
Armstrong  v.  Herancourt  Brewing  Co.,  53  Oh. 
St.  467,  477    (1895). 

Lienholders  are  proper  parties. 

In  a  proceeding  under  this  section  persons 
holding  liens  on  the  property  of  the  defendant 
company  are  proper  if  not  necessary  parties. 
—  Mercantile  Trust  Co.  v.  iEtna  Iron  Works, 
4  O.  C.  C.  579   (1890);  s.  c,  2  C.  D.    718. 

§  5674.  HOW  CERTAIN  CORPORATIONS  MAY  SURRENDER  CHARTER  — 
When  a  majority  of  the  directors,  trustees,  or  other  officers  of  a  corporation  not  for 
profit  desire  to  abandon  its  corporate  existence  and  no  debts  have  been  incurred 
which  are  unpaid,  or  in  case  of  a  corporation  for  profit  when  a  majority  of  such 
officers  become  satisfied  that  the  objects  of  the  corporation  cannot  be  accomplished, 


Motion  for  new  trial. 

Before  proceedings  in  error  can  be  taken  a 
motion  for  a  new  trial  must  be  made. —  Mer- 
cantile  Trust  Co.  v.  Mtna,  Hon  Works,  4  O. 
C.  C.  579,  589   (1890);  s.  c,  2  C.  D.  718. 

Jurisdiction      as      to      subject-matter  — 

how  tried. 

See  Mercantile  Trust  Co.  v.  .Etna  Iron 
Works,  4  O.  C.  C.  579  (1890);  s.  c,  2  C.  D. 
718. 

Discretion  of  court  as  to  making  order 
on  officers. 

See  Fitch  v.  Sprague  Carriage  Co.,  19  O. 
C.  C.  296   (1900)  ;  s.  c,  10  C.  D.  520. 

Cross-petition     by     creditor     to     reach 
stockholders'  liability. 

In  an  action  under  this  section  a  creditor 
may  by  cross-petition  reach  stockholders'  lia- 
bility. —  See  Peter  v.'Farrell,  etc.,  Co.,  53  Oh. 
St.  534   (1895). 

When  proceedings  reviewable  on  *»im»qt. 

An  Ohio  corporation  has  not  the  right  to 
refuse  to  make  a  disclosure  of  its  condition 
in  an  action  under  this  section,  and  therefore 
an  order  upon  officers  of  a  corporation  requir- 
ing them  to  fi'e  in  court  an  inventory,  etc..  is 
not  an  order  afi'ecting  a  substantial  right,  and 
is  not  reviewab'e  on  error — .Armstrong  v. 
Herancourt  Brewing  Co.,  53  Oh.  St.  467 
(1895). 


Dissolution  of  Corporations.  599 

Inactive  Companies  —  Settlement  of  Affairs,  §§  5674a,  5675. 

and  that  no  installment  of  the  capital  stock  of  such  corporation  has  been  paid  and 
no  investments  have  been  made  and  no  debts  incurred  which  are  unpaid,  they,  or 
the  president  of  the  board  of  directors,  trustees,  or  other  officers,  may  call  a  meet- 
ing of  the  members  or  stockholders  of  the  corporation  at  such  time  and  place  as 
he  or  they  may  designate  by  at  least  two  weeks'  publication  in  a  newspaper  pub- 
lished and  of  general  circulation  in  the  county  wherein  the  principal  office  is 
located;  and  if  a  majority  of  the  members  of  a  corporation  not  for  profit  present  at 
such  meeting  desire  such  abandonment,  or  a  majority  in  amount  of  the  stockholders 
of  a  corporation  for  profit  present  in  person  or  by  proxy  decide  that  the  objects  of 
such  corporation  cannot  be  accomplished,  then  such  corporation  shall  be  abandoned 
or  dissolved  upon  the  filing  of  a  certificate  of  such  abandonment  or  dissolution  with 
the  secretary  of  state  in  the  manner  provided  by  law.  (April  18,  1902,  95  v.  238; 
May  4,  1869,  66  v.  94.) 

l^§  5674a.  INACTIVE  CORPORATIONS.— When  a  majority  of  the  directors  or 
other  officers  having  the  management  of  the  concerns  of  any  corporation  for  profit, 
which  has  completely  closed  its  business,  and  paid  all  the  debts  and  liabilities 
incurred  by  such  corporation  desire  to  surrender  its  corporate  authority  and  fran- 
chises, they,  or  the  president  of  said  board  of  directors,  may  call  a  meeting  of  the 
stockholders  at  such  time  or  place  as  he  or  they  may  designate  by  publication  for 
four  weeks  in  some  newspaper  published  and  of  general  circulation  in  the  county 
wherein  the  principal  office  of  the  corporation  is  located  and  by  written  notices  ad- 
dressed to  each  of  the  stockholders  whose  residence  is  known,  of  the  object,  time 
and  place  of  said  meeting;  and  if  all  the  stockholders  present  at  such  meeting  in 
person  or  by  proxy  decide  to  surrender  and  abandon  its  corporate  authority  the 
corporation  shall  be  abandoned  and  dissolved  upon  the  filing  of  a  certificate  of  such 
abandonment  or  dissolution  with  the  secretary  of  state  in  the  manner  provided  by 
law.  Provided  that  a  corporation  entitled  at  the  date  of  the  passage  of  this  act  to 
surrender  its  charter  under  the  provisions  of  this  section,  having  no  living  president 
of  its  board  of  directors  and  a  majority  of  whose  directors  are  deceased,  may  sur- 
render its  corporate  charter  by  an  application  of  one  or  more  of  the  resident  stock- 
holders thereof,  setting  forth  the  facts  required  by  this  section,  duly  filed  with  the 
secretary  of  state.     (April  18,  1902,  95  v.  208.) 

§  5675.  DIRECTORS  AT  TIME  OF  DISSOLUTION  MAY  SETTLE  AEEAIRS  OF 
CORPORATION. —  Upon  the  dissolution  of.  a  corporation  by  the  expiration  of  the 
terms  of  its  charter,  or  otherwise,  and  unless  other  persons  be  appointed  by  the  legis- 
lature, or  by  the  stockholders,  directors,  or  trustees  of  the  corporation,  or  by  a  court 
of  competent  authority,  the  directors,  trustees,  or  managers  of  the  affairs  of  such  cor- 
poration, acting  last  before  the  time  of  its  dissolution,  by  whatever  name  they  m?y 
be  known  in  law,  and  their  survivors,  shall  be  the  trustees  of  the  creditors  and  stock- 
holders of  the  dissolved  corporation,  and  shall  have  full  power  to  settle  the  affairs 
of  the  same,  collect  and  pay  the  outstanding  debts  and  divide  among  the  stockholders 
the  money  and  other  property  remaining,  in  proportion  to  the  stock  of  each  stock- 
holder paid  up,  after  the  payment  of  debts  and  necessary  expenses;  the  persons  so 
constituted  trustees  may  sue  for  and  recover  the  debts  and  property  of  the  dissolved 
corporation,  by  the  name  of  the  trustees  of  the  corporation,  describing  it  by  its  cor- 
porate name,  and  they  shall  be  jointly  and  severally  responsible  to  the  creditors  and 
stockholders  of  the  corporation,  to  the  extent  of  its  property  and  effects  that  come 
into  their  hands;  such  trustees  may  be  made  or  become  parties  to  any  action,  by  or 
against  the  corporation;  and  all  liens  of  judgment  existing  at  the  time  of  the  disso- 
lution either  in  favor  of  or  against  the  corporation,  shall  continue  in  force  in  the  same 
manner  as  if  the  dissolution  had  not  taken  place.  (March  21,  1850,  48  v.  90,  §  5; 
March  7,  1842,  40  v.  67,   §   14.) 


600  Private  Corporations  in  Ohio. 

Settlement  of  Affairs,    §§   5676-5680. 


Warrant    of   attorney   to    confess   judg- 
ment. 

The  trustees  may  have  judgment  entered 
on  a  cognovit  note  owned  by  the  corporation 
at  the  time  of  its  dissolution. —  Martin  v. 
Trustees  of  Belmont  Bank,  13  Oh.  250  (1844). 


Service    of    process. 

In  proceedings  or  actions  against  defunct 
corporations,  service  of  process  upon  the 
members  of  its  last  acting  board  of  directors 
is  sufficient,  under  the  statute,  to  give  the 
court  jurisdiction. — ■  Warner  v.  Callender,  20 
Oh.  St.  190  (1870);  Vallette  v.  Kentucky 
Trust  Co.,   1   Handy,  571    (1855). 


Suits  against  defunct   corporation. 

See  Benick  v.  Bank  of  West  Union,  13  Oh. 

298   (1844). 


/•     How  suit  brought. 

The  trustees  may  sue  in  their  collective 
names,  not  in  their  individual  names. —  Mar- 
tin v.  Trustees  of  Belmont  Bank,  13  Oh.  250 
(1844). 

§  5676.  WHEN  THE  LAST  BOARD  IS  WITHOUT  A  QUORUM.— When  the 
last  board  of  directors  or  trustees  of  an  expired  or  dissolved  corporation  becomes 
unable,  by  the  refusal  or  neglect  of  a  part  of  such  trustees  to  act,  or  for  want  of  a 
quorum,  to  act  as  trustees  for  closing  the  affairs  of  the  corporation,  any  number  of 
such  last  board  of  directors  or  trustees  may  apply  to  the  court  of  common  pleas  c£ 
the  proper  county  to  declare  vacant  the  places  of  such  directors  or  trustees  as  refuse 
or  neglect  to  act,  and  such  court  may  empower  the  remaining  directors  or  trustees, 
not  less  than  two  in  number,  or  appoint  any  other  number  of  persons,  not  exceeding 
three,  to  perform  the  duties  of  trustees  under  the  preceding  section.  (February  21r 
1849,  47  v.   15,  §  1.) 

§  5677.  PETITIONS  UNDER  PRECEDING  SECTION.— All  applications  m:.d3 
under  the  preceding  section  shall  be  by  petition,  and  the  court  hearing  the  same  may, 
on  the  same  petition,  make  needful  orders  against  any  former  trustees,  or  against 
any  assignees  of  such  corporation,  for  the  conveyance  of  property  by  them  held,  and 
for  the  assignment  of  all  rights  in  them  vested,  and  also  for  the  delivery  of  all  books 
and  papers  touching  the  affairs  of  the  corporation,  which  order  may  be  enforcsd  "by- 
process,  or  by  its  terms  operate  as  a  conveyance  and  transfer.  (February  21,  1849, 
47  v.  15,  §  2.) 

§    5678.     TRUSTEES   APPOINTED   SUCCEED  TO   RIGHTS   OF  PREDECESSOR. 

—  The  trustees  so  appointed,  and  all  successors  of  such  trustees,  shall  succeed  to  all 
the  rights  vested  in  their  predecessors,  whether  trustees  or  assignees;  and  all  securi- 
ties and  effects  by  them  held  or  acquired,  and  all  judgments  recovered,  whether  in 
favor  of  the  corporation  to  which  they  succeed,  or  in  the  names  of  the  trustees  of 
such  corporation,  shall  inure  to  the  succeeding  trustees,  and  pass  by  operation  of  law 
as  fully  as  if  the  same  were  assigned.     (February  21,  1849,  47  v.  15,  §  3.) 

§  5679.  NO  ACTION  SHALL  ABATE  BY  DISSOLUTION  OF  CORPORATION.— 
No  action  pending  in  any  court  in  favor  of  or  against  any  corporation  shall  be  dis- 
continued or  abate  by  the  dissolution  of  the  corporation,  whether  the  dissolution 
occur  by  the  expiration  of  its  charter  or  otherwise;  but  all  such  actions  may  ba 
prosecuted  to  final  judgment  by  the  creditors,  assignees,  receivers,  or  trustees  having 
the  legal  charge  of  the  assets  of  the  corporation,  in  its  corporate  name.  (March  10, 
1843,  41  v.   52,  §  1;  40  v.  67,  §   14.) 


Construction  of  former  acts. 

See  Renick  v.  Bank  of  West  Union,  13  Oh. 
298  (1844);  Miami  Exporting  Company  v. 
Gano,    14    Oh.    269     (1844);    Stetson   v.    City 


Bank,  2   Oh.  St.   167    (1853);   Stetson  v.  Citv 
Bank,  12  Oh.  St.  577   (la61). 

No  actions  abate. 

See   Lake   Superior  Iron   Co.   v.   Brown,   44 
Fed.  539   (1S90). 


§  5680.  JUDGMENTS  BY  OR  AGAINST  SUCH  CORPORATIONS  MAY  BE 
ENFORCED. —  Upon  all  judgments  in  favor  of  or  against  any  such  corporation, 
whether  such  judgments  exist  at  the  time  of  the  dissolution,  or  are  obtained  after- 
ward in  actions  pending  at  the  time  of  the  dissolution,  execution  may  be  had,  and 


Dissolution  of  Corporations.  601 

Settlement  of  Affairs,  §§  5681-5686. 

satisfaction  or  performance  of  the  same  enforced,  by  the  creditors,  assignees,  receiv- 
ers, or  trustees  having  the  legal  charge  of  the  assets  of  the  dissolved  corporation,  in 
the  corporate  name  of  the  dissolved  corporation.     (March   10,   1843,  41  v.   52,  §   2.) 

§  5681.  TITLE  TO  PROPERTY  OF  CORPORATION  TO  PASS  TO  TRUSTEES.— 
The  title  to  all  real  estate  belonging  to  any  such  corporation  shall,  at  the  time  of  the 
dissolution  of  the  same,  pass  to  the  trustees  of  the  corporation,  who  may  sell  and  d  s- 
pose  of  the  same  in  such  manner,  and  upon  such  terms,  as  they  deem  best  for  the 
interest  of  the  creditors  and  stockholders,  and,  upon  any  such  sale,  make  a  good  and 
sufficient  deed  therefor.      (March  10,  1843,  41  v.  52,  §  4.) 

§  5682.  TRUSTEES  PERSONALLY  LIABLE  FOR  AN  ABUSE  OF  TRUST.— 
The  trustees  of  any  such  corporation  shall  be  subject  to  the  control  of  the  court  of 
common  pleas,  and  be  liable  to  be  sued  on  behalf  of  any  person  interested,  on  account 
of  any  neglect  or  omission  of  duty,  or  abuse  of  trust;  in  case  of  the  removal  of  any 
such  trustee  by  the  court  for  an  abuse  of  trust,  it  may  appoint  a  suitable  person  to 
fill  the  vacancy;  and  any  such  trustee  may,  for  reasonable  cause,  upon  the  appl  ca- 
tion of  any  creditor  or  stockholder,  be  required  by  the  court  to  give  bond  and  secur  ty, 
in  such  amount,  and  subject  to  such  conditions,  as  it  may  direct.  (March  10,  1843, 
41  v.  52,  §  5.) 

§   5683.     DISSOLVED  CORPORATION  MAY  PROSECUTE  ACTION  IN  ITS  OWN 

NAME. —  A  corporation  may,  at  any  time  after  its  dissolution,  whether  the  dissolu- 
tion occur  by  the  expiration  of  its  charter  or  otherwise,  prosecute  any  action  in  and 
by  its  corporate  name,  for  the  use  of  the  party  entitled  to  receive  the  proceeds  of  such 
action,  upon  any  and  all  causes  of  action  accrued,  or  which,  but  for  such  dissolution, 
would  have  accrued,  in  favor  of  the  corporation,  in  the  same  manner,  and  with  the 
like  effect,  as  if  it  were  not  dissolved.      (March  21,  1850,  48  v.  80,   §   1.) 

§    5684.     MAY  BE   SUED   BY  CORPORATE   NAME;  SERVICE  OF   PROCESS  — 

Any  such  dissolved  corporation  may  be  sued  by  its  corporate  name,  for  or  upcn  any 
cause  of  action  accrued,  or  which,  but  for  the  dissolution,  would  have  accrued  against 
it,  in  the  same  manner,  and  with  the  like  effect,  as  if  it  were  not  dissolved;  and  all 
process  by  which  an  action  is  instituted  against  such  corporation  may  be  served  by 
the  sheriff,  or  other  proper  officer,  by  delivering  to  any  one  of  the  assignees,  trustees, 
receivers,  or  persons  having  charge  of  its  assets,  a  copy  thereof,  or  by  leaving  such 
copy  at  the  residence  of  any  such  assignee,  trustee,  receiver  or  person.  (March  21, 
1850,  48  v.  90,  §  2.) 

See  Tiffin  Glass  Co.  v.  Stoehr,  54  Oh.  St.  157    (1896). 

§  5685.  JUDGMENTS  FOR  OR  AGAINST  MAY  BE  REVIVED.—  Judgments  in 
favor  of  or  against  a  dissolved  corporation,  whether  rendered  before  or  after  its  dis- 
solution, and  which  become  dormant,  may  be  revived  in  favor  of  or  against  it,  as  the 
case  may  be,  in  and  by  its  corporate  name,  in  the  same  manner,  and  with  the  lika 
effect,  as  if  the  corporation  were  not  dissolved;  and  in  all  cases  of  such  judgments 
against  any  such  corporation  the  writ  of  summons  or  other  process  shall  be  served 
in  the  manner  prescribed  in  section  fifty-six  hundred  and  eighty-four.  (March  21, 
1850,  48  v.  90,  §  3.) 

§  5686.  ERROR  MAY  BE  PROSECUTED  ON  JUDGMENTS  FOR  OR  AGAINST. 
^-  Petitions  in  error  upon  judgments  may  be  prosecuted  in  favor  of  or  against  any 
such  dissolved  corporation,  and  by  its  corporate  name,  in  the  same  manner,  and  with 
the  like  effect,  as  if  it  were  not  dissolved;  and  process  thereon  against  it  shall  be 
served  in  the  manner  prescribed  in  section  fifty-six  hundred  and  eighty-four.  (March 
21,    1850,  48  v.  90,   §  4.) 


502  Private  Corporations  in  Ohio. 


Settlement  of  Affairs,   §§  5687,   5688. 


§  5687.  DIRECTORS  MAY  APPOINT  TRUSTEES  TO  SETTLE  AEEAIR3  GF 
CORPORATION. —  The  board  of  directors  or  other  officers  having  the  control  an  I 
management  of  any  corporation  in  this  state,  may  appoint  three  trustees  to  adjust 
and  settle  the  affairs  of  such  corporation,  and  the  trustees  so  appointed  shall'  be 
authorized  to  use  the  corporate  name  of  the  corporation,  for  such  period  as  may  be 
necessary  for  the  adjustment  and  settlement  of  its  affairs,  by  suit  or  otherwise. 
(May  1,  1852,  50  v.    272,   §  2.) 

§  5688.  REMOVAL  AND  DUTIES  OF  TRUSTEES.— The  trustees  so  appointed 
shall  report  annually  to  the  stockholders  of  the  corporation  a  full  and  succinct  state- 
ment of  its  affairs;  and  a  majority  in  interest  of  the  stockholders  may  remove  a 
trustee,  or  appoint  a  person  to  a  vacancy  occasioned  by  the  death,  resignation,  or 
removal  of  a  trustee.     (May  1,  1852,  50  v.  272,  §§  3,  4.) 


PART    XXVI. 

PROCEEDING  TO   CURE  CERTAIN    DEFECTS,    ERRORS    AND   OMISSIONS. 

§5867.  When  court  must  give  effect  to  the  intention   of  the   parties. 

§  5868.  Certain  errors,  defects,  and  omissions  may   be  corrected  by  action. 

§  5S69.  In  what  county  petition  to  be  filed. 

§  5870.  How  service  to  be  made. 

§  5871.  Judgment  of  the  court  and  its  effect. 

§  5867.  WHEN  COURT  MUST  GIVE  EFFECT  TO  THE  INTENTION  OF  THE 
PARTIES. —  When,  in  an  instrument  in  writing,  or  in  a  proceeding,  there  is  an  omis- 
sion, defect,  or  error,  by  reason  of  the  inadvertence  of  an  officer,  or  a  party,  person, 
or  body  corporate,  whereby  the  same  is  not  in  strict  conformity  with  the  laws  of  this 
state,  the  courts  of  this  state  may  give  full  effect  to  such  instrument  or  proceeding, 
according  to  the  true  and  manifest  intention  of  the  parties  thereto.  (March  10,  1859, 
56  v.  40,  §   1.) 

See  Warner  v.  Callender,  20  Oh.  St.  190  (1870)  ;  Spinning  v.  Home,  etc.,  Ass'n,  26  Oh.  St. 
483   (1875);   Clarke  v.  Thomas,  34  Oh.  St.  46,  59   (1877). 

§  5868.  CERTAIN  ERRORS,  DEFECTS,  AND  OMISSIONS  MAY  BE  COR- 
RECTED BY  ACTION. —  When  any  such  error,  omission,  or  defect  occurs  in  an 
instrument  or  proceeding  which  is  required  to  be  made  a  matter  of  record,  any  party, 
person,  body  corporate,  or  persons  intending  and  undertaking  to  become  a  body  cor- 
porate, having  or  claiming  an  interest  in  the  correction  of  such  error,  omission,  or 
defect,  may  file  a  petition  in  the  court  of  common  pleas,  setting  forth  particularly  the 
error,  defect,  or  omission  complained  of,  and  asking  an  order  for  the  correction 
thereof.     (March  10,   1859,  56  v.   40,   §  2.) 

§  5869.  IN  WHAT  COUNTY  PETITION  TO  BE  FILED.—  When  the  record  to 
he  corrected  is  in  any  way  connected  with  a  body  corporate,  the  petition  shall  be  filed 
in  the  county  wherein  the  principal  office  of  such  corporation  is  located,  and  in  all 
other  cases  in  the  county  wherein  the  record  is  kept.     (March  10,  1859,  56  v,  40,  §  3.) 

§  5870.  HOW  SERVICE  TO  BE  MADE.— When  the  application  is  made  by  a 
body  corporate,  or  by  persons  intending  and  undertaking  to  become  a  body  corporate, 
notice  of  the  application,  specifying  the  error,  defect,  or  omission  complained  of,  and 
the  time  and  place  of  hearing  the  same,  shall  be  published  for  six  consecutive  weeks 
in  some  newspaper  of  general  circulation  in  the  county  where  the  application  is  made; 
and  in  all  other  cases  service  shall  be  made  in  the  manner  prescribed  by  law  for  mak- 
ing service  in  civil  actions.      (March  10,  1859,  56  v.  40,  §  2.) 

§  5871.  JUDGMENT  OF  THE  COURT  AND  ITS  EFFECT.—  The  court,  upon 
being  satisfied  that  such  mistake,  error,  or  omission  has  been  made,  shall  grant  and 
make  an  order  to  correct  the  same,  which  order  shall  be  filed  in  the  office  in  which 
such  record  is  required  to  be  kept;  and  from  and  after  such  filing,  such  record,  and 
the  order  correcting  the  same,  shall  be  received  as  evidence  in  all  cases,  in  all  courts, 
the  same  as  if  no  such  error,  omission,  or  defect  had  ever  existed.     (March  10,  1859, 

56  v.  40,  §  2.) 

[603] 


PART  XXVII. 

APPROPRIATION  OF  PROPERTY. 

§  6414.  Appropriations  to  be  made  as  provided  in  this  chapter. 

§  6415.  When  appropriation  can  be  made. 

§  6415a.  Appropriation  of  property  of  minor,  etc. 

§  6416.  Petition  for  appropriation,  and  in  what  court  to  be  filed. 

§  6417.  In  what  county  petition  to  be  filed. 

§6418.  Summons;  its  command,  and  service  thereof. 

§  6419.  Service  by  publication. 

§  6420.  Jurisdictional  questions  to  be  first  determined. 

§  6421.  Jurors  to  be  drawn  from  the  box,  and  venire  issued. 

§  6422.  Who  entitled  to  separate  trial,  and  how  trial  conducted. 

§6423.  The  court  may  allow  any  amendment. 

§  6424.  Time  of  trial,  adjournment,  and  discharge  of  juries. 

§  6425.  How  panel  to  be  filled;  jurors  to  be  interrogated  by  court. 

§  6426.  Challenges  to  jurors,  and  how  vacancies  in  jury  box  filled. 

§  6427.  The  oath  to  be  administered  to  jury. 

§  6428.  The  form  of  writ  to  sheriff. 

§  6429.  Judge  must  deliver  certain  copies  to  sheriff. 

§  6430.  Witnesses  may  be  examined  before  jury. 

§  6431.  When  a  structure  is  partly  on  land  sought  to  be  appropriated. 

§  6432.  Verdict  and  confirmation  thereof. 

§  6433.  When  and  how  corporations  may  have  possession. 

§  6434.  When  and  how  corporation  may  abandon  proceedings. 

§  6435.  When  action  may  be  brought  for  costs  and  expenses. 

§6436.  New  trial;  proceedings  thereon. 

§  6437.  Either  party  may  file  a  petition  in  error. 

§  6438.  Proceedings  in  the  common  pleas  on  error. 

§  6439.  How  school  land  may  be  appropriated. 

§  6440.  When  proceedings  to  appropriate  private  property  may  be  commenced  in  court  of 

common  pleas. 

§  6441.  Court  to  appoint  attorney  for  party  absent  or  under  disability. 

§  6442.  Conflicting  claims  not  to  be  passed  upon. 

§  6443.  But  to  be  adjudicated  in  the  common  pleas. 

§  6444.  Such  proceeding  a  civil  action. 

§  6445.  Unfinished  road-bed  of  railroad  company  may  be  condemned. 

§  6446.  Proceedings  in  such  case. 

§  6447.  In  what  court  such  proceedings  may  be  commenced. 

§  6448.  Proceedings  when  land  is  held  without  agreement  by  a  corporation. 

§6449.  Summons  in  such  case;  judgment  and  execution. 

§  6450.  When  injunction  may  issue  against  corporation. 

§  6451.  Fees  of  witnesses,  officers,  and  probate  judge,  and  how  costs  adjudged. 

§  6452.  When  costs  may  be  apportioned. 

§  6453.  When  this  chapter  does  not  apply. 

APPROPRIATION  OF  PROPERTY. 

§  6414.  APPROPRIATIONS  TO  BE  MADE  AS  PROVIDED  IN  THIS  CHAPTER. 

Appropriations  of  private  property  by  corporations  must  be  made  according  to  the 

provisions  of  this  chapter.     (April  23,  1872,  69  v.  88,  §  1.) 

[604J 


Appropriation  of  Property. 


605 


Made  when,  §§  6415,  6415a. 


These    statutes    should    he    strictly    con- 
strued. 

The  rule  that  statutes  conferring  the  power 
of  eminent  domain  are  to  be  strictly  construed 
is  one  not  to  be  asserted  and  then  disregarded, 
hut  to  be  rigidly  enforced. —  Piatt  v.  Penn- 
sylvania Co.,  43  Oh.  St.  228,  244  (1885). 

Power   not    conferred  hy   constitution. 

Neither  section  of  the  constitution  confers 
the  power  of  eminent  domain;  they  simply 
prescribe  modes  for  and  limitations  upon  its 
exercise.  The  power  itself  is  an  inseparable 
incident  of  sovereignty,  and  its  exercise  was 
delegated  by  the  sovereign  power  to  the  gen- 
eral assembly  in  the  grant  of  legislative  au- 
thority. In  this  state  the  power  is  lodged 
with  the  general  assembly,  to  be  used  when 
necessary  to  the  attainment  of  its  lawful  pur- 
poses.—  Giesy  v.  Cincinnati,  etc.,  R.  R.  Co., 
4  Oh.  St.  308,  323   (1854). 

Purpose  for  which  power  may  he  exer- 
cised. 

The  power  may  be  used  to  appropriate  lands 
for  a  public  highway  of  any  kind;  and  this 
whether  the  road  is  built  and  owned  by  the 
public  or  by  a  corporation  as  a  public  instru- 
mentalitv. —  Giesv  v.  Cincinnati,  etc.,  R.  R. 
Co.,  4  Oh.  St.  308,  324   (1854). 

Function    of   legislature    and   judiciary. 

The  power  may  be  exercised  directly  or  in- 
directly by  the  legislature,  without  the  inter- 
vention of  the  judiciary,  except  for  determin- 
ing the  amount  of  compensation.  But  the 
courts  possess  full  power  to  determine  its 
proper  limits,  and  to  prevent  abuses  in  its 
exercise. —  Giesv  v.  Cincinnati,  etc.,  R.  R. 
Co.,  4  Oh.  St.  308   (1S54). 


Appropriations  for  depots. 

Depots  being  essential  to  the  practical 
operation  of  railroads,  the  appropriation  of 
land  for  depot  purposes  is  authorized  under 
this  act.  Giesy  v.  Cincinnati,  etc.,  R.  R.  Co., 
4  Oh.  St.  308    (1854). 

Appropriation  to  divert  streams. 

When     it     becomes    necessary    to    divert    a 
stream  from   its  course  a  company  may  appro- 
priate   land    necessary    for   a    new    channel. 
Valley  Ry.  Co.  v.  Bohm,  34  Oh.  St.  114  (18771 

Appropriation   of  highways. 

The  fact  that  a  mad  has  been  occupied  by  a 
company  under  an  agreement  with  the  officials 

in  charge  of  the  mad.  as  provided  in  §  3283, 
does  not  in  any  way  affect  the  righl  oJ 
owner  in  fee  of  the  soil  of  the  road  or  the 
rights  fii  abutting  owners,  to  he  compensated 
for  the  appropriation  of  Ins  property. —  Rail- 
road Co.  v.  O'Harra,  48  Oh.  St.  343,  :',:>:>, 
(1891).  See  Railway  Co.  v.  Gardner,  45  Oh. 
St.  309,  318  (1887);'  Kramer  v.  Toledo,  etc.. 
R.  R.  Co.,  53  Oh.  St.  436,  444  (1895);  Rail- 
way Co.  v.  Lawrence,  38  Oh.  St.  41  (1882); 
Railroad  Co.  v.  Hambleton,  40  Oh.  St.  496, 
501  (1884).  See  Belmer  v.  Cincinnati,  etc., 
R.  R.  Co.,  10  W.  L.  B.  232  (1883)  ;  Cincinnati, 
etc.,  Ry.  Co.  v.  Pntzer,  1  Goebel,  248  (1889). 

Appropriation   of  streot-car   tracks. 

Where  one  company  desires  to  appropriate 
the  tracks  of  another  company  under  §  3440, 
it  may  institute  proceedings  under  this  sec- 
tion.—Street  R.  R.  Co.  v.  Street  Ry.  Co.,  50 
Oh.  St.  603  (1S93):  s.  c,  6  0.  C.  C.  362.  See 
Toledo,  etc.,  Ry.  Co.  v.  Toledo,  etc..  Ry.  Co., 
10  O.  C.  C.  108  (1S9.5);  Consolidated,  etc., 
Ry.  Co.  v.  Toleao,  etc.,  Ry.  Co.,  6  X.  P.  537 
(1892);  Kinsman,  etc.,  R.  R.  Co.  v.  Broadwav, 
etc.,  R.  R.  Co.,  36  Oh.  Si.  239   (1880). 


§  6415.  WHEN  APPROPRIATION  CAN  BE  MADE.— Appropriations  can  only 
be  made  when  the  corporation  is  unable  to  agree  with  the  owner,  or  his  guardian  or 
trustee,  as  to  the  compensation  to  be  paid  for  the  property,  or  easement  or  interest 
therein,  sought  to  be  appropriated,  or  when  the  owner  is  incapable  of  contracting  in 
person  or  by  agent,  and  has  no  guardian  or  trustee,  or  is  unknown,  or  his  residence 
is  beyond  the  state,  or  unknown.  (May  4,  1891,  88  v.  555;  R.  S.  1880;  April  23, 
1872,  69  v.  88,  §  2.) 


minors    without    authority    from    the    probate 
court. —  See    State   v.    Commissioners,    39    Oh. 

St.  58   (1883). 


Agreement   with   guardian. 

Where  the  road  passes  through  land  owned 
by  minors,  the  right  of  way  cannot  be  secured 
by  a  deed  executed  by  the  guardian  of  such 

§  6415a.  APPROPRIATION  OF  PROPERTY  OF  MINOR,  ETC.— Whenever 
under  this  chapter  the  property  of  any  minor,  idiot,  imbecile,  or  insane  person,  or  my 
easement  or  interest  therein,  is  sought  to  be  appropriated  by  a  corporation  and  there 
is  a  legally  appointed  guardian  of  the  person  and  estate  or  of  the  estates  cr  a  trustee 
of  such  minor,  idiot,  imbecile  or  insane  person,  and  the  said  guardian  has  agreed  with 
said  corporation  upon  the  amount  of  compensation  to  be  paid  for  such  property,  ease- 
ment, or  interest  therein,  he  may  file  with  the  probate  court  of  the  county  whsrsin 
said  property  is  situated,  a  written  application  for  authority  to  convey  to  said  corpora- 
tion the  said  property  or  interest;  which  said  application  shall  fully  describe  the 
property,  right,  easement  or  interest  therein,  sought  to  be  conveyed,  and  shall  fully 
set  out  the  price  agreed  to  be  paid  for  the  same,  the  probate  judge  shall  order  said 


606 


Private  Corporations  in  Ohio. 


Petition  for  Appropriation,  §  6416. 


guardian  to  give  such  notice  as  said  judge  shall  deem  reasonable,  to  the  said  ward, 
of  the  filing  of  said  application  and  of  the  time  set  for  the  hearing  of  the  same.  At 
the  time  set  for  the  hearing  of  said  application,  if  the  judge  shall  find  that  notice  was 
given  as  ordered  of  the  time  set  for  the  hearing  of  the  same,  and  that  the  price  to  be 
paid  is  reasonable  and  just,  and  that  the  said  conveyance  would  be  to  the  best  inter- 
est of  said  ward,  he  shall  order  said  guardian  to  make  and  execute  a  deed  to  said  cor- 
poration for  said  property  or  interest  upon  the  payment  of  the  said  price  agreed  upon 
by  said  guardian  and  said  corporation.     (May  4,   1891,  88  v.   554.) 

§   6416.     PETITION  FOR   APPROPRIATION,  AND   IN   WHAT  COURT   TO  BE 

FILED. —  In  any  such  case  the  corporation  may  file  with  the  probate  judge  a  peti- 
tion, verified  as  in  a  civil  action,  containing  a  specific  description  of  each  parcel  of 
property,  interest,  or  right,  within  the  county,  sought  to  be  appropriated,  the  work, 
if  any,  intended  to  be  constructed  thereon,  the  use  to  which  the  same  is  to  be  applied, 
the  necessity  for  the  appropriation,  the  name  of  the  owner  of  each  parcel,  if  known, 
or  if  not  known,  a  statement  of  that  fact,  the  names  of  all  persons  having  or  claiming 
an  interest,  legal  or  equitable,  in  the  property,  so  far  as  the  same  can  be  ascertained, 
and  a  prayer  for  the  appropriation  of  the  property.    (April  23,  1872,  69  v.  88,  §§2, 19.) 

Jurisdiction  —  constitutionality. 

This  act  is  a  constitutional  enactment  under 
article  4,  §  8.  of  the  constitution. —  Giesy  v. 
Cincinnati,  etc.,  R.  R.  Co.,  4  Oh.  St.  308 
(1854).  See  Railroad  Co.  v.  O'Harra,  48  Oh. 
St.  343   (1891). 


Removal  to   federal  court. 

it  has  been  held  by  Wing.  J.,  in  the  United 
States  circuit  court  (N.  D.  0.  W.  D.)  on  a 
motion  to  remand,  that  appropriation  eases 
are  not  removable  from  the  probate  court. — 
Toledo  Rv.  &  Terminal  Co.  v.  Ann  Arbor 
R.  R.  Co." 

Mode    of   exercising  jurisdiction. 

The  probate  court  under  this  act  has  a  spe- 
cial and  limited  jurisdiction,  to  be  exercised 
in  the  cases  and  in  the  mode  prescribed  in  the 
act;  and  that  court  cannot,  under  an  order  of 
the  court  of  common  pleas,  and  to  carry  into 
effect  that  order,  take  jurisdiction  of  a  case  or 
proceed  in  a  mode  not  authorized  by  the  act. 
—  Dayton,  etc.,  R.  R.  Co.  v.  Marshall,  11  Oh. 
St.  497   (1860). 

Pleadings    after    petition    not    required. 

See  Cincinnati,  etc.,  Rv.  Co.  v.  Ptitzer,  1 
Goebel,  248  (1889). 

Rules  of  pleading. 

As  to  whether  the  rules  of  code  pleading  are 
applicable  to  a  petition  to  appropriate  private 
property  for  public  uses,  filed  under  the  stat- 
ute, in  the  probate  court,  quaere.  In  case  of 
doubt,  the  judgment  rendered  in  such  proceed- 
ing will  not  be  reversed  for  failure  to  strictly 
observe  such  rules. —  Toledo,  etc.,  Ry.  Co.  v. 
Toledo,  etc.,  Ry.  Co.,  6  O.  C.  C.  362   (1892). 

Object  and  purpose  of  section. 

See  Pittsburg,  etc.,  R.  R.  Co.  v.  Perkins, 
22  O.  C.  C.  630   (1888). 

Description  of  lands  must  be   certain. 

See  Cleveland,  etc.,  R.  R.  Co.  v.  Prentice,  13 
Oh.  St.  373    (1862). 


Proof  of  land  desired. 

Where  the  company  hies  a  written  state- 
ment, specifically  describing  the  property 
sought  to  be  appropriated,  no  further  written 
or  record  evidence  of  the  line  of  the  road  is 
essential  to  the  right  of  the  company  to  have 
compensation  fixed. —  Powers  v.  Hazelton, 
etc.,  Ry.  Co..  33  Oh.  St.  429  (1878). 

Purpose  and  necessity  must  be  alleged. 

The  purpose  and  necessity  of  the  appropria- 
tion must  be  clearly  stated  to  enable  the 
court  to  determine  the  necessity  and  to  secure 
fair  compensation  to  the  owner. —  Valley  Ry. 
Co.  v.  Bohm,  34  Oh.  St.   114   (1877). 

Necessity. 

The  power  of  eminent  domain  is  based  upon 
the  public  necessity,  and  can  only  be  exer- 
cised where  such  necessity  exists,  but  this 
necessity  relates  rather  to  the  nature  of  the 
property  and  the  uses  to  which  it  is  applied 
than  to  the  exigencies  of  the  particular  case; 
and  it  is  no  objection  to  the  exercise  of  the 
power  that  lands,  equally  feasible,  could  be 
obtained  bv  purchase. —  Giesv  v.  Cincinnati, 
etc.,  R.  R.  "Co.,  4  Oh.  St.  308  (1854);  Toledo, 
etc.,  Rv.  Co.  v.  Toledo,  etc.,  Ry.  Co.,  6  O.  C.  C. 
362,  389  (1892);  s.  c,  26  W.  L.  B.  172;  Pow- 
ers v.  Hazelton,  etc.,  Ry.  Co.,  33  Oh.  St.  429 
(1878). 

See  also  statutes,  act  of  April  30,  1852,  50 
v.  201,   §§   6416,  6420. 

Note. —  In  a  recent  case  in  the  Lucas 
county  common  pleas  court  (Ann  Arbor  Rv. 
Co.  v."  Toledo  Ry.  &  T.  Co.).  Kinkade.  J.,  held 
that  the  question  of  necessity  includes  the 
question  whether  or  not  any  railroad  is  re- 
quired by  the  public  between  the  termini 
named,  and  if  so,  whether  or  not  the  particu- 
lar property  described  and  sought  to  be  taken 
is  necessary. 

Amount  that  can  be  taken. 

The  quantity  of  land  that  may  be  appro- 
priated   is    left   very    indefinite,    but    only    so 


Appropriation  of  Property. 


607 


Petition  and  Summons  in,   §§  6417,  6418. 


much  can  be  taken  as  is  necessary  to  be  used, 
and  if  more  is  taken  than  can  be  used,  the 
owner  may  recover  such  excess. —  Set;  Piatt  v. 
Pennsylvania  Co.,  43  Oh.  St.  228  (1885); 
Giesy  v.  Cincinnati,  etc.,  R.  P.  Co.,  4  Oh.  Gt. 
308  (1854). 

Company   cannot  be  made   to   appropri- 
ate more  land  on  motion. 

See  Schaible  v.  Lake  Shore,  etc.,  R.  11.  Co., 
10  O.  C.  C.  334   (1895). 

Company  cannot  sell  land  unnecessarily 
taken. 

Where  a  corporation  appropriates  more 
land  than  is  necessary,  it  cannot  subject  the 
landowner  to  the  additional  burden  of  another 
railroad  by  selling  such  additional  land  to 
such  ether  road. —  Piatt  v.  Pennsylvania  Co., 
43  Oh.  St.  228  (1885).  See  Pittsburg,  etc., 
Ry.  Co.  v.  Garlick,  20  ( ).  ( '.  C.  561   (1900). 

What  interest  can  be  appropriated. 

Only  such  interest  in  lands  can  be  taken  as 
will  answer  the  public  wants,  and  it  can  only 
be  held  so  long  as  it  is  used  by  the  public, 
and  cannot  be  diverted  to  any  other  purpose. 
—  Giesy  v.  Cincinnati,  etc.,  R.  R.  Co..  4  Oh. 
St.  308  (1854).  See  Pittsburg,  etc.,  Ry.  Co. 
v.  Garlick,  20  O.  C.  C.  5(51    (1900). 

Rights  retained  by  owners. 

\Y  here  the  interest  acquired  is  only  an  ease- 
ment, the  owner  of  the  fee  retains  every  righl 
in  the  land  appropriated,  not  inconsistent  with 
the  paramount  authority  of  the  company 
freely  and  unobstructed'y  to  build,  repair  and 
operate  its  railroads,  and  use  therefor  ma- 
terial fairly  within  the  condemnation.  One 
of  the  rights  so  retained  is  that  of  access  to 
lands  severed  by  the  strip  appropriated  — 
Piatt  v.  Pennsylvania  Co.,  43  Oh.  ist.  228,  244 
(1885). 

Permanent   interest  must  be   taken. 

The  company  cannot  appropriate  anything 
but  a  permanent  estate  in  the  lands  upon 
which  its  right  of  way  is  to  be  constructed. — 
Gorrill  v.  Toledo,  etc.,  Ry.  Co.,  4  O.  C.  C.  398, 
403  (1890). 

Interest  of  remainderman  must  be   ap- 
propriated. 

A  railroad  cannot  appropriate  a  temporary 
interest,  therefore,  though  it  has  full  rights 
as  against  the  tenant  for  life,  it  must  appro- 

§  6417.  IN  WHAT  COUNTY  PETITION  TO  BE  FILED.—  The  petition  may 
include  one  or  more  of  the  parcels  of  property,  rights,  or  interests  in  the  county  in 
which  it  is  filed;  and  when  any  such  parcel,  right,  or  interest  is  situated  in  two  or 
more  counties,  the  petition  may  be  filed  in  either  of  the  counties  in  which  an  owner  is 
resident,  and  if  no  owner  is  resident  therein,  it  may  be  filed  in  either.  (March  23, 
1875,  72  v.  71.) 

§  6418.  SUMMONS:  ITS  COMMAND,  AND  SERVICE  THEREOF.— Upon  the 
filing  of  a  precipe  therefor,  the  probate  judge  shall  issue  summons  for  the  owners, 


priate  as  against  the  remainderman,  <>i  he  is 
en!  ii  led  i  o  real  rain  I  be  use  of  t  In-  land  unl  il 
his  interest- has  been  paid.  Gorrill  v.  Toledo, 
etc.,    Ry.   Co..    l    0.   < '.   C.   398    |  L890), 

Property    subject   to    public    use    cannot 
be  taken. 

It    is  a   well-settled   rule   thai    propertj    al 
ready  appropriated,   in  the  proper  exercise  of 
i  h<   povt  it  of  eminent  domain,  ca  nnol  be  I 
for  another  public  use   which    will   wholly   de- 
feat or  supersede  the  former  use,  unless  power 
to  make  such  second  appropriation  be  granted 
expressly,     or     by     necessary     implication. 
Railroad  Co.  v.  Village  of  Belle  Center,  is  Oh. 
St.  27:5   (1891)  ;   Little  Miami,  etc..   R.   l:.  I  ... 
v.  Dayton.  23  Oh.  St.  510   (1872). 

Land  used  for  parks  may  be  taken. 

See   Colby    V.    Toledo.   11   (  ).    (   .    ('.    732    i  I'.HIl  ,. 

Land  not  used  and  unnecessary  subject 
to    second    appropriation. 

Where  land  is  held  by  a  corporation, 
whether  acquired  by  purchase  or  appropria- 
tion, which  is  not  employed  in  or  needed  for 
the  proper  exercise  of  its  franchises,  such  land 
is  not  within  the  general  rule  which  prohibits 
the  appropriation  of  land  already  subject  to  a 
public  use. —  Railroad  Co.  v.  Village  of  Belle 
Center.   48   Oh.    St.  273    (1891). 

Rights   of  lessees. 

See  Foote  v.  Cincinnati.  11  Oh.  408  (1842)  ; 
Cleveland  v.  Cuvahoga,  etc.,  Society,  41  oh. 
St.  GOO    (1885). 

Mortgagees  must  be  made  party. 

See  Harrison  v.  Village  of  Sabina,  14  W.  L. 
B.  27   I  1885). 

Revivor  on  daath  of  defendant. 

On  the  death  of  a  defendant,  revivor  of  the 
proceedings  must  be  had  in  the  name  of  the 
heirs  or  devisees,  and  not  of  the  administrator 
of  the  deceased. —  Valley  Ry.  Co.  v.  Bohiu,  29 
Oh.  St.  633  (1876). 

■When    company    may    dismiss    proceed- 
ings. 

In  a  proceeding  to  appropriate  property  the 
company  is  the  actor,  and  may  discontinue 
the  pioceedings  at  any  time,  at  least  before  the 
matter  is  submitted  to  the  jurv. —  Dayton, 
etc.,  R.  R.  Co.  v.  Marshall,  11  Oh.  St.  497 
(I860). 


608 


Private  Corporations  in  Ohio. 


Appropriation;  Service  and  Trial  in,   §§  6419-6421. 


and  persons  named  in  the  petition  as 
■which  may  be  directed  to  the  sheriff  of 
the  persons  named  therein  of  the  filing 
to  be  fixed  by  the  judge,  and  named 
teen  days  from  the  date  thereof,  and 
civil  action.  When  a  writ  is  returned 
until  the  parties  are  duly  summoned. 


residents  of  the  state  and  having  an  interest, 
any  county,  and  shall  command  him  to  notify 
of  the  petition,  and  to  appear  thereto  at  a  time 
therein,  not  less  than  five  nor  more  than  fif- 

which  shall  be  served  and  returned  as  in  a 
"  not  summoned,"  other  writs  may  be  issued, 

(March  23,  1875,  72  v.  71,  §  1.) 


§  6419.  SERVICE  BY  PUBLICATION.—  When  a  person  having  an  interest  is 
unknown,  or  his  residence  is  beyond  the  state,  or  unknown,  the  corporation  may  make 
service  by  publication  against  him,  by  publishing  in  a  newspaper  of  general  circula- 
tion in  the  county  where  the  petition  is  filed,  for  four  consecutive  weeks,  a  notice  con- 
taining a  summary  statement  of  the  object  and  prayer  of  the  petition,  so  far  as  it 
relates  to  the  property  of  the  person  thus  to  be  notified,  the  court  in  which  it  is  filed, 
and  the  time  when  such  person  is  to  appear  thereto,  not  less  than  ten  or  more  than 
twenty  days  after  the  last  publication;  and  the  fact  of  publication  may  be  proved  by 
the  affidavit  of  any  person  knowing  the  same.     (March  23,   1875,  72  v.  71,  §  3.) 

§  6420.     JURISDICTIONAL    QUESTIONS    TO    BE    FIRST   DETERMINED.— On 

the  day  named  in  any  summons  first  served,  or  publication  first  completed,  the  pro- 
bate judge  shall  hear  arid  determine  the  questions  of  the  existence  of  the  corporation, 
its  right  to  make  the  appropriation,  its  inability  to  agree  with  the  owner,  and  the 
necessity  for  the  appropriation.  Upon  these  questions  the  burden  of  proof  shall  be 
upon  the  corporation,  and  any  interested  person  shall  be  heard.  (March  23,  1875, 
72  v.  71,  §  4.) 


Proof  of  existence. 

It  is  essential  to  the  exercise  of  the  right  of 
eminent  domain  for  the  company  to  prove  that 
it  has  fully  organized  by  the  e'ection  of  direct- 
or-, and  that  the  company,  through  its  board 
of  directors,  has  been  unable  to  agree  with  the 
landowners. —  Powers  v.  Hazelton,  etc.,  Rv. 
Co..  33  Oh.  St.  429  (1878);  Atlantic,  etc..  R. 
R.  Co.  v.  Sullivant,  5  Oh.  St.  ^76  (1855); 
Atkinson  v.  Marietta,  etc.,  R.  R.  Co.,  15  Oh. 
St.  21   (1864). 

Proof  of  existence  of  corporation. 

Proof  of  the  existence  of  a  corporation  may 
be  made  by  offering  a  certified  copy  of  articles 
■of  incorporation,  and  such  parts  of  the  cor- 
porate records  as  are  pertinent. —  Toledo  Rv. 
Co.  v.  Toledo,  etc.,  Ry.  Co.,  6  0.  C.  C.  362,  391 
(1892);  s.  c.  26  W.  L.  B.  172;  Toledo,  etc., 
Ry.  Co.  v.  Toledo,  etc.,  Ry.  Co.,  12  0.  C.  C. 
367,  384  (1893). 

Incorporation  for  private  benefit. 

It  is  incompetent  for  a  landowner  to  prove 
for   the  purpose   of  defeating   the   proceeding. 

§   6421.     JURORS  TO  BE  DRAWN  FROM  THE  BOX,  AND  VENIRE  ISSUED.— 

If  the  judge  determine  these  questions  for  the  corporation,  as  to  any  or  all  of  the 
property,  and  persons  interested  therein,  he  shall  issue  an  order  to  the  clerk  and 
sheriff  to  draw  sixteen  names  from  the  jury  box,  as  in  other  cases,  and  within  two 
days  after  the  receipt  of  the  same,  they  shall  execute  the  order,  and  the  clerk  shall 
forthwith  return  it  to  the  probate  judge,  with  a  list  of  the  names  drawn  indorsed 
thereon;  and  the  judge  shall  issue  to  the  sheriff  a  venire  for  the  jurors  so  drawn  to 
attend  at  his  office,  at  a  time  to  be  fixed  by  him,  and  named  in  the  writ,  not  exceed- 
ing ten  days  from  the  date  thereof,  which  shall  be  served  and  returned  as  in  other 
cases.     (March  23,  1875,  72  v.  71.) 


that  the  corporation  procured  the  incorpora- 
tion of  the  company,  not  for  a  public  use,  but 
for  their  private  purpose  merely,  and  were 
exercising  the  corporate  privi'eges  in  abuse  of 
the  law. —  Powers  v.  Hazelton,  etc.,  Ry.  Co., 
33  Oh.  St.  429   (1878). 

Proof  of  inability  to  agree. 

Where  it  is  claimed  there  is  no  proof  of 
inability  to  agree,  a  reviewing  court  will  look 
into  the  whole  record. —  Toledo,  etc.,  Ry.  Co. 
v.  Toledo,  etc..  Rv.  Co.,  6  0.  C.  C.  362,  388 
(1892)  ;  s.  c,  26  W.  L.  B.   172. 

Findings   of    fact    and   law  —  sufficiency. 

See  Toledo,  etc..  Rv.  Co.  v.  Toledo,  etc.,  Ry. 
Co.,  6  0.  C.  C.  362, '394    (1S92). 

Jurisdictional  facts  must  be  found  be- 
fore jury   is  ordered. 

See  Kramer  v.  Toledo,  etc.,  R.  R.  Co.,  53  Oh. 

St.  436,   444    (1895). 


Appropriation  of  Property 


609 


Trial  in,  etc,  SS  6422  6426. 


§  6422.  WHO  ENTITLED  TO  A  SEPARATE  TRIAL,  AND  HOW  TRIAL  CON- 
DUCTED.—  The  owners  of  each  separate  parcel,  right,  or  interest,  shall  be  entitled 
to  a  separate  trial  by  jury,  verdict,  and  judgment.  They  shall  hold  the  affirmative 
on  the  trial,  which  shall  be  conducted,  and  evidence  shall  be  admitted,  and  bills  of 
exception  may  be  taken,  as  provided  in  civil  actions.  (March  23,  1875,  72  v.  71, 
§§  1,  3;  April  23,  1872,  69  v.  88,  §§  8,  12,  23.) 


Separate   trials. 

Proceedings  under  the  act  of  April  30.  1852, 
might  bo  instituted  jointly,  againsl  all  own- 
ers of  property  lying  in  the  county  and  soughl 
to  be  appropriated;  but  after  the  return  of 
the  jury  from  the  view  each  owner  of  distinct 
property  is  entitled  to  a  separate  trial. — 
Giesy  v.  Cincinnati,  et-..  R.  R.  Co.,  4  Oh.  St. 
308  (1854);  Cincinnati  v.  Neff,  19  W.  I..  B. 
404   (1888). 


What  is  a  jury. 

'!'!m'  word  '"jury'*  in  S  10.  art.  1.  of  the 
constitution  means  a  tribunal  of  twelve  men, 
presided  over  by  a  court,  and  hearing  tin-  alle- 
gations, evidence,  and  arguments  of  the  par- 
ties. They  may  !»•  Beni  t<>  inspect  the 
premises.-  -  Lamb  v.  Lane,  4  Oh.  St.  167 
ils:.4):  Shaver  v.  Starrett  4  Oh.  Si  194 
i  1855)  :  Smith  v.  Atlantic,  etc.,  P.  P.  '  <>..  25 
Oh.  St.  «.t|  (1874).  Sec  Wagner  v.  Railway 
Co.,  38  Oh.  St.  32,  35    I  1 882  I . 


§  6423.  THE  COURT  MAY  ALLOW  ANY  AMENDMENT.— The  court  may 
amend  any  defect  or  informality  in  any  of  the  proceedings  authorized  or  required  by 
this  chapter,  or  cause  new  parties  to  be  added,  and  direct  such  further  notice  to  be 
given  to  any  party  in  interest  as  it  deems  proper.      (April  23,  1872,  69  v.  88,   8   17.) 

§  6424.  TIME  OF  TRIAL,  ADJOURNMENT,  AND  DISCHARGE  OF  JURIES.— 
The  court  may  direct  the  order  and  fix  the  time  of  the  several  trials;  may  adjourn  or 
continue  any  trial  for  the  purpose  of  obtaining  proper  service  upon  any  property 
owner,  or  when  deemed  necessary  for  the  proper  and  convenient  trial  of  the  several 
cases;  and  may  discharge  any  jury,  and  cause  other  juries  to  be  impaneled,  as  pro- 
vided in  this  chapter.     (March  23,   1875,  72  v.  72,  §  5.) 

§  6425.  HOW  PANEL  TO  BE  FILLED;  JURORS  TO  BE  INTERROGATED  EY 
COURT. —  When,  by  reason  of  non-attendance,  sickness,  or  other  cause,  any  of  the 
sixteen  persons  are  not  present  and  in  condition  to  serve  as  jurors,  the  judge  shall 
order  the  sheriff  to  fill  the  vacancies  with  talesmen;  and  when  the  list  of  sixteen  is 
full,  the  judge  shall  call  upon  each  separately,  beginning  with  the  first  named  on  the 
list,  to  take  his  place  in  the  jury  box,  and  shall  personally  inquire  of  each,  as  called, 
whether  he  is  interested  in  any  way  in  any  of  the  property,  rights,  or  interests  sought 
to  be  appropriated,  or  in  the  corporation  which  filed  the  petition,  either  as  owner, 
stockholder,  agent,  attorney,  or  otherwise;  and  if  such  person  answer  in  the  affirma- 
tive, or  if  it  be  shown  to  the  judge,  by  satisfactory  evidence,  that  he  is  so  interested, 
he  shall  be  excused  from  serving  on  the  jury,  and  the  next  person  on  the  list  shall  be 
called,  and  interrogated  in  like  manner;  and  if  the  list  of  sixteen  be  exhausted  before 
a  proper  jury  of  twelve  men  is  taken  and  accepted  therefrom,  the  judge  shall  order 
the  sheriff  to  fill  the  remaining  vacancies  in  the  jury  box  required  to  make  up  the 
number  of  twelve,  with  talesmen,  who  shall  be  interrogated  as  hereinabove  provided. 
(March  23,   1875,  72  v.  73,   §  6.) 

§  6426.  CHALLENGES  TO  JURORS,  AND  HOW  VACANCIES  IN  JURY  BOX 
FILLED. —  When  the  jury  box  is  filled  with  twelve  disinterested  jurors,  the  owners 
of  the  property  which  is  the  subject  of  the  trial,  jointly,  and  the  petitioner,  shall  each 
have  the  right  to  two  peremptory  challenges,  and  to  challenge  for  cause;  and  all 
vacancies  arising  in  the  jury  from  challenge,  or  otherwise,  shall  be  filled  by  tales- 
men having  the  qualifications  prescribed  in  the  last  section,  to  be  ascertained  as 
therein  provided.     (March  23,    1875,72  v.  73,  §  6.) 


Peremptory  challenges  by  owners. 

Where  proceedings  are  commenced  against 
the  owners  of  several  tracts  of  land,  all  the 
defendants  are  entitled  to  but  two  peremptory 

LAW    GOV.    PRIV.    CORP. —  39 


challenges:  not  each  defendant  entitled  to  two. 
—  Ohio.  etc..  R.  R.  Co.  v.  Kloeb.  5  X.  P.  4 
(1898);    Cincinnati   v.  Neff,   19  W.   L.   B.  404 

(1888). 


610 


Private  Corporations  in  Ohio. 


Trial  in;  Oath  of  Jury,   §  6427. 


§  6427.  THE  OATH  TO  BE  ADMINISTERED  TO  JURY.— When  the  jury  is 
filled,  the  probate  judge  shall  administer  to  them  the  following  oath:  "  You,  and 
each  of  you,  do  solemnly  swear  that  you  will  justly  and  impartially  assess,  according 
to  your  best  judgment,  the  amount  of  compensation  due  to  the  proper  owners  in  the 
cases  which  will  be  brought  before  you  in  this  proceeding,  by  reason  of  the  appro- 
priation of  their  property  described  in  the  petition,  to  the  use  of  (here  name  the  cor- 
poration), in  the  proceeding  now  pending,  irrespective  of  any  benefit  from  any 
improvement  proposed  by  such  corporation;  and  you  do  further  swear  that  you  will, 
in  assessing  any  damages  that  may  occur  to  such  property  owners,  by  reason  of  the 
appropriation,  other  than  the  compensation,  further  ascertain  how  much  less  valu- 
able the  remaining  portion  of  said  property  will  be  in  consequence  of  such  appropria- 
tion; this  you  swear  as  you  shall  answer  to  God."      (March  23,  1875,  72  v.  73,  §  5.) 


Compensation  —  constitutional         provi- 
sions. 

The  provisions  of  art.  1,  §  19,  and  art.  13, 
§  5,  of  the  constitution,  the  one  requiring 
compensation  to  be  made  without  deduction 
for  benefits,  when  property  is  appropriated  to 
a  public  use,  and  the  other  providing  for  com- 
pensation irrespective  of  benefits,  where  it  is 
taken  by  a  corporation  for  a  right  of  way,  are, 
in  legal  effect,  identical.  When  property  is 
taken  under  either  section,  its  fair  market 
value  in  cash,  at  the  time  it  is  taken,  must  be 
paid  to  the  owner;  and  the  jury  in  assessing 
the  amount,  have  no  right  to  consider  or  make 
any  use  of  the  fact  that  it  has  been  increased 
in  value  by  the  proposal  or  construction  of  the 
improvement. —  Giesy  v.  Cincinnati,  etc.,  R. 
R.  Co.,  4  Oh.  St.  308  (1854). 

Same    subject  —  where    benefits    and    in- 
juries are   blended. 

In  case  an  appropriation  of  a  strip  causes 
incidental  and  local  injury  to  the  residue  of 
the  tract,  although  general  resulting  benefits 
from  the  railroad  to  the  value  of  such  residue 
of  the  land  cannot  be  taken  into  account  in 
estimating  the  compensation  to  be  paid  to  the 
owner,  yet  where  a  local  incidental  benefit  to 
the  residue  of  the  land  is  blended  or  connected, 
either  in  locality  or  subject-matter,  with  a 
local  incidental  injury  to  such  residue  of  the 
land,  the  benefit  may  be  considered  in  fixing 
the  compensation  to  be  paid  the  owner, 
not  by  way  of  deduction  from  the  com- 
pensation, but  of  showing  the  extent  of 
the  injury  done  the  value  of  the  residue  of 
the  land.  *  But  whether  a  local  incidental  ben- 
efit can  be  considered  when  not  connected  or 
blended  either  in  locality  or  subject-matter 
with  the  injurv,  quaere. —  Cleveland,  etc.,  R. 
R.  Co.  v.  Ball,  5  Oh.  St.  568  (1S56).  See  To- 
ledo Bending  Co.  v.  Manufacturers'  Ry.  Co..  2 
N.  P.  317  (1895);  Little  Miami,  etc.,  R.  R. 
Co.  v.  Collett,  G  Oh.  St.  182  (1856);  Ohio 
Southern  R.  R.  Co.  v.  Rawlins,  29  W.  L.  B. 
260  (1892);  Lotze  v.  Cincinnati,  4  N.  P.  311 
(1897)  :  Schaible  v.  Lake  Shore,  etc.,  Ry.  Co., 
10  O.  C.   C.   334    (1895). 

Benefits  could  be  set  off  before   1851. 

Under  the  constitution  of  1802,  benefits 
could  be  estimated  and  set  off  against  the 
value  of  lands  and  damages  so  as  to  permit 


the  land  to  be  taken  without  the  payment  of  a 
dollar  in  money. —  Piatt  v.  Pennsylvania  Co., 
43  Oh.  St.  228,"  244  (1885);  Kramer  v.  Cleve- 
land, etc.,  E.  R.  Co.,  5  Oh.  St.  140  (1855); 
Columbus,  etc.,  R.  R.  Co.  v.  Simpson,  5  Oh.  St. 
251   (1855). 

Compensation  must  be  in  money. 

See  Central  Ohio  R.  R.  Co.  v.  Holler,  7  Oh. 
St.  220   (1857). 

Rule        of        compensation  —  speculative 
damages. 

Where  land  is  appropriated  for  a  public 
use,  a  compensatory,  not  speculative  re- 
muneration is  guaranteed  by  the  law  for  land 
taken,  and  for  the  damage  occasioned  thereby 
to  the  remainder  of  the  premises.  The  differ- 
ence in  the  value  of  the  owners'  property,  with 
the  appropriation,  and  that  without  it.  is  the 
rule  of  compensation.  This  difference  must  be 
ascertained  with  reference  to  the  value  of  the 
property  in  view  of  its  present  character,  situ- 
ation and  surroundings.  It  cannot  be  en- 
hanced by  proving  facts  of  a  contingent  and 
prospective  ?haracter,  such  as  the  probable 
rents  that  may  be  derived  from  the  property, 
or  its  special  value  as  a  prospective  monopoly 
of  a  roadway  to  the  adjoining  lands  of  other 
persons. —  Powers  v.  Hazelton,  etc.,  Ry.  Co., 
33  Oh.  St.  429  (1878)  ;■  Schaible  v.  Lake 
Shore,  etc.,  R.  R.  Co.,  10  O.  C.  C.  334  (1895). 

Elements  of  compensation  when  land  is 
severed. 

Where  a  piece  or  strip  of  land  is,  by  appro- 
priation, severed  from  its  connection  with  the 
other  land  of  the  owner,  in  estimating  the 
compensation  to  be  made  to  the  owner,  not 
only  is  the  abstract  value  of  the  strip  taken 
to  be  considered,  but  also  its  relative  value, 
and  the  effect  arising  from  its  severance  from 
the  residue  of  the  owner's  land  as  well  as  the 
uses  to  which  it  is  to  be  appropriated. — 
Cleveland,  etc..  R.  R.  Co.  v.  Ball,  5  Oh.  St. 
568  (1856):  Schaible  v.  Lake  Shore,  etc.,  Ry. 
Co.,  10  O.  C.  C.  334  (1895). 

Basis  of  valuation. 

The  rule  of  valuation  is,  what  the  interest 
in  the  property  is  worth,  not  for  any  particu- 
lar use,  but  generally  for  any  and  all  uses 
for  which  it  may  be  suitable. —  Goodin  v.  Cin- 
cinnati, etc.,  Canal  Co.,  18  Oh.  St.  169  (1868). 


Appropriation  of  I  'roperi  y, 


611 


View  of  Premises,  §§  6428,  6429. 


Time  when  value  of  land  is  to  be  taken. 

See  Schaible  v.  Lake  Shore,  etc.,  Ry.  Co  ,  LO 
0.  C.  C.  334    (1895). 


Market   value,   what   is. 

See   Cincinnati,   etc.,    Ry. 

GoebeL  248   (1889). 


Co.   v.    Pfitzer,    1 


Damage  by  smoke,  noises,  and  sparks. 

It  is  competent  to  take  into  consideration 
evidence  of  substantial  injury  and  loss  to  the 
property  (not  common  to  the  community  at 
large)  caused  by  smoke,  noises  and  sparks  of 
fire,  occasioned  by  running  of  locomotives  and 
cars  along  the  track  in  front  of  the  property. 
—  Railway  Co.  v.  Gardner,  45  Oh.  St.  309 
(1887). 

Damage   to   lands   adjacent   when   canal 
is    converted    into    railroad. 

"Where  a  canal  company  transfers  its  lands 
to  a  railroad  company,  the  owner  of  the  fee  is 
entitled  to  damages  for  the  additional  burdens 
imposed  on  his  land. —  See  Hatch  v.  Cincin- 
nati, etc..  R.  R.  Co.,  18  Oh.  St.  92  (1868); 
Cincinnati,  etc.,  R.  R.  Co.  v.  Zinn,  18  Oh.  St. 
417  (1868);  Vought  v.  Columbus,  etc.,  R.  R. 
Co.,  58  Oh.  St.  123   (1898). 

Damage   to   highway. 

A  landowner  must  recover  damages  suffered 
by  a  change  in  a  highway  in  a  separate  action, 
not  in  appropriation  proceedings. —  Schaible 
v.  Lake  Shore,  etc.,  Ry.  Co.,   10  0.  C.  C.  334 

(1898). 

Injury  to  access  to  river. 

"Where  compensation  is  claimed  for  injury 
to  access  to  river,  thereby  damaging  die  ship- 
ping facilities,  it  is  competent  to  show  that 
river  transportation  had  ceased  to  be  valuable. 


<  !eveland,  etc.,  R.  R.  Co.  v.  Ball.  S  Oh    St 
568    (1856). 

Interest  —  when  allowed. 

A    property    owner    is    entitled    to    ii, 
from    and    after    the    time   his    property 
taken,  and  even  though  the  money  may  have 
been  paid   into  court   on  one  verdid .  inti  res! 
will  be  allowed  in  a  second  verdict   from  the 
time  the  laud  was  taken.— Atlantic,  etc.,  Ry. 
Co.  v.    Koblentz,  2]    Oh.   St.  334    |  L871  I  ;    (  in 
cinnati  v.   William-.  9   W.   L.   B.  24<j 
See  i  ity   v.   English,  5  W.   L.  J'..  7    I 
Cincinnati    v.     Whetstone,     17    Oh.    St.     196 
(1890);   Longworth   v.  Cincinnati,   48  Oh.   St 
G37,  047   (1891). 

Appropriation    of    street-car    tracks    by 
another    company  —  compensation. 

See    Toledo    Rv.    Co.    V.    Toledo,    etc.,    Rv.    (   0 

0  O.  C.  C.  302    (1892);    Kinsman,  etc.,  R.    R. 

Co.   v.  Broadway,   etc.,  R.   R.   Co.,  3G  Oh.    St. 
239   (1880).     See  Cincinnati,  etc.,  R.  R.  ( 
Zinn,  18  Oh.  St.  417    (1868). 

Railroad  crossing  appropriation  —  com- 
pensation. 

In  a  proceeding  to  appropriate  a  right  of 
way  across  the  track  of  an  existing  railroad, 
to  be  used  in  common,  as  a  railroad  crossing, 
the  owner  of  such  track  is  entitled  to  com- 
pensation for  the  property  or  interest  therein 
actually  appropriated,  and  for  such  conse- 
quential damages  as  are  the  direct  and  prox- 
imate consequence  of  .-uch  appropriation,  but 
it  cannot  recover  as  consequential  damages 
the  additional  expense  rendered  necessary  in 
operating  its  road  in  complying  with*  the 
crossing  law,  nor  can  the  jury  take  into  ac- 
count the  detention  of  trains  or  loss  of  future 
business. —  Lake  Shore,  etc.,  Ry.  Co.  v.  Cin- 
cinnati, etc.,  Ry.  Co.,  30  Oh.  St.  604  (1876). 


§  6428.     THE  FORM  OF  WRIT  TO   SHERIFF.—  The  probate  judge   may,   upon 
motion  of  either  party,  issue  the  following  writ  to  the  sheriff,  to-wit:    "  To  the  sheriff 

of  county:     You  are  hereby  commanded  to  conduct  the  twelve  jurors  named 

in  the  panel  to  this  writ  annexed,  to  view  the  property  or  premises  sought  to  be  appro- 
priated by  (here  state  the  name  of  the  corporation),   and   owned  by  (here  state  the 

name  of  the  owner  or  owners),  on ,  the day  of ,  then  and 

there  to  view  the  premises  or  property  aforesaid,  (in  the  presence  of  A.  B.  on  the  part 
of  the  corporation  aforesaid,)  and  C.  D.  on  the  part  of  the  owner,  appointed  by  this 
court,  and  you  shall  make  return  of  the  manner  you  have  executed  this  writ  to  this 

court,    on   the  day  of  ,    A.    D.   ."      The  writ  shall   be   signed 

by  the  probate  judge,  and  certified  under  his  seal  of  office.  (April  23,  1872,  69  v. 
88,   §   9.) 


§  6429.  JUDGE  MUST  DELIVER  CERTAIN  COPIES  TO  SHERIFF.—  The  judge 
shall  also  deliver  to  the  sheriff  a  copy  of  that  part  of  the  petition  containing  a  separate 
description  of  each  parcel  of  property,  and  rights  or  interests  sought  to  be  appro- 
priated within  the  county,  which  the  jury  is  required  to  view;  he  may  appoint,  to  be 
present  at  the  view,  the  two  persons  named  in  the  writ;  and  the  sheriff  who  is  to  exe- 
cute the  writ  shall,  by  a  special  return  upon  the  same,  certify  under  his  hand  that 
the  view  has  been  made  according  to  the  command  thereof.     The  expenses  of  taking 


612 


Private  Corporations  in  Ohio. 


Trial   in;  Witnesses,   Verdict,   etc.,    SS   6430-6432. 


the  view  shall  be  taxed  in  the  bill  of  costs,  and  no  evidence  shall  be  given  on  either 
side  at  the  taking  thereof.     (April  23,   1872,  69  v.  88,   §  9.) 


§  6430.  WITNESSES  MAY  BE  EXAMINED  BEFORE  JURY.—  Witnesses  may 
be  examined  before  the  jury  after  its  return  to  the  court;  but  if  more  than  three  wit- 
nesses be  examined  by  either  party,  on  the  same  point  in  the  same  case,  the  judge  may 
tax  the  costs  of  such  additional  witnesses  to  the  party  calling  them.  (April  23,  1872, 
69  v.  88,   §  9.) 


How  difference  in  value  proved. 

It  is  improper  to  ask  a  witness  how  much 
less  valuable  a  piece  of  land  would  be  in  con- 
sequence of  the  appropriation,  or  what  the 
difference  in  value  would  be  with  the  appro- 
priation and  without  it.  The  proof  should  be 
confined  to  the  value  with  the  appropriation 
and  value  without  it.  The  jury  is  to  ascer- 
tain the  difference  or  damage. —  Powers  v. 
Hazelton,  etc.,  Ry.  Co.,  33  Oh.  St.  429  (1878)  ; 
Railway  Co.  v.  Gardner,  45  Oh.  St.  309,  322 
(1887). 

Proof  of  value  by  account  books. 

Where  no  special  ground  is  laid  therefor,  ac- 
count books  of  persons  not  parties  to  the  pro- 
ceedings are  not  of  themselves  admissible  in 
evidence  to  prove  the  value  of  the  property 
affected  by  the  appropriation,  and  quantity 
of  products  transported  over  it  from  the  lands 
of  other  parties. —  Powers  v.  Hazelton,  etc., 
Ry.  Co.,  33  Oh.  St.  429   (1878). 

Opinions  as  to  injuries  to  land. 

\Y  here  in  a  proceeding  it  is  claimed  that  the 
land  will  be  injured  by  severing  it,  thus  in- 
juring the  shipping  facilities,  it  is  proper  to 
ask  the  opinion  of  a  witness  on  cross-exami- 


nation   as    to    the    extent    of    such    injury. — 
Cleveland,    etc.,   R.   R.   Co.   v.   Ball,   5   Oh.   St. 

508   (1S56). 

Opinions  as  to  damages. 

The  opinion  of  a  witness  as  to  the  amount 
of  damages  which  a  landowner  will  sustain  by 
the  appropriation  of  a  part  of  his  land  is  not 
admissible,  but  opinions  may  be  given  as  to 
the  value  of  the  land. —  Cleveland,  etc.,  R.  R. 
Co.  v.  Ball,  5  Oh.  St.  568  (1856)  ;  Atlantic,  etc., 
R.  R.  Co.  v.  Campbell,  4  Oh.  St.  583  (1855); 
Railway  Co.  v.  Gardner,  45  Oh.  St.  309,  322 
(1887)/ 

Proof  of  diminished  rents. 

Damages  or  value  cannot  be  shown  by  the 
rents  received  from  the  property. —  See  Rail- 
way Co.  v.  Gardner,  45  Oh.  St.  309,  324  (1887)  ; 
Lake  Shore,  etc.,  Ry.  Co.  v.  Cincinnati,  etc., 
Ry.  Co.,  30  Oh.  St.  604,  623  (1876)  ;  Powers  v. 
Hazelton,  etc.,  Ry.  Co.,  33  Oh.  St.  429,  425 
(1878). 

Charge  to  jury. 

See  Ohio  Southern  R.  R.  Co.  v.  Snyder,  5  N. 
P.  461    (1898). 


§  6431.  WHEN  A  STRUCTURE  IS  PARTLY  ON  LAND  SOUGHT  TO  BE 
APPROPRIATED. —  When  a  building  or  other  structure  is  situated  partly  upon  land 
sought  to  be  appropriated,  and  partly  upon  adjoining  land,  and  such  structure  cannot 
be  divided  upon  the  line  between  such  two  tracts  of  land  without  manifest  injury, 
the  jury,  in  assessing  the  compensation  to  any  owner  of  the  lands,  shall  assess  the 
value  of  the  same  exclusive  of  the  structure,  and  make  a  separate  estimate  of  the 
value  of  the  structure;  the  owner  of  the  structure  may  elect  to  retain  the  ownership 
of  the  same,  and  to  remove  it,  or  accept  the  value  thereof  as  estimated  by  the  jury; 
if  he  fail  to  make  such  election  within  ten  days  from  the  date  of  the  report  of  the  jury, 
or  within  ten  days  from  the  termination  of  the  cause  in  any  higher  court  to  which  it 
may  be  taken,  he  shall  be  deemed  to  have  elected  to  retain  and  remove  the  structur-; 
but  if  he  elect  to  accept  the  value  of  the  structure,  the  title  thereto  shall  vest  in  the 
corporation  making  the  appropriation,  which  shall  have  the  right  to  enter  upon  the 
land  for  the  purpose  of  removing  the  structure  therefrom.  (April  11,  1876,  73  v. 
210,    §    1.) 


■When   election  must  be  made. 

An  election  may  be  made  either  ten  days 
after  the  date  of  the  verdict,  or  ten  days  after 
the  overruling  of  a  motion  for  a  new  trial,  or 


ten  days  after  the  termination  of  the  proceed- 
ing in  error. —  Covington  Bridge  Co.  v.  Devoto, 

5  N.  P.  330  (1898)  ;  s.  c,  8  Dec.  268. 


§  6432.  VERDICT  AND  CONFIRMATION  THEREOF.—  The  jury  shall  render 
its  verdict  in  writing,  signed  by  the  foreman,  to  the  judge,  who  shall  cause  it  to  be 
entered  of  record;  and  unless  for  good  cause  shown,  upon  motion  to  be  filed  within 


Appropriation  of  Property. 


613 


Possession  under  —  Costs,  etc.,  SS  6433  6435. 


ten  days  after  the  verdict  is  rendered,  a  new  trial  be  granted,  the  judge  shall  enter 
a  judgment  confirming  such  verdict.     (March  23,   1875,   72  v.   71.) 


Verdict     must     be     in     money  —  nothing 
else  authorized. 

A  verdict  assessing  damages  in  the  sum  of 
$150,  with  a  wagonway  and  stop  for  cattle,  is 


not    in  conformity  with  the  statutes  nor  the 
consl  it  hi  ion.     <  mi  i  ;il     Ohio     R.     R.     I 
Holier,  7  Oh.  St.  220  I  1857). 


§  6433.  WHEN  AND  HOW  CORPORATIONS  MAY  HAVE  POSSESSION  — 
Upon  payment  to  the  party  entitled  thereto,  or  deposit  with  the  probate  judge,  of  the 
amount  of  the  verdict,  and  such  costs  as  have  lawfully  accrued  in  the  case  up  to  the 
time  against  the  corporation,  the  corporation  shall  be  entitled  to  take  possession  of, 
and  shall  hold,  the  property,  rights,  or  interests  so  appropriated,  for  the  uses  and  pur- 
poses for  which  the  appropriation  was  sought,  as  set  forth  in  the  petition,  and  the 
judge  shall  enter  of  record  an  order  to  that  effect,  and  if  necessary,  proper  process 
shall  be  issued  to  place  the  corporation  in  possession  thereof.  (March  23,  1875,  72 
v.   71.) 


Refusal  of  owner  to  accept  money. 

Appropriation  proceedings  arc  effectual,  al- 
though the  owner  may  have  refused  to  submit 
to  such  proceedings,  or  to  receive  the  amount 
awarded  to  him,  and  deposited  for  his  use. — 
Hueston  v.  Eaton,  etc.,  R.  R.  Co.,  4  Oh.  St. 
685   (1855). 


Possession  cannot  'be  taken  before  final 
order. 

Before  a  corporation  can  have  possession  it 
must    make  a   deposit    of  the  amouni    of  the 

\enlict.  and  a    final  order  ,c  i-l    In-  made   in  the 
proceedings.-  -Wagner  \     l.ailwav- <  o., 
St.   32    (1882). 


§  6434.  WHEN  AND  HOW  CORPORATION  MAY  ABANDON  PROCEEDINGS 
—  The  corporation  may  abandon  any  case  or  proceeding  after  paying  into  court  the 
amount  of  the  defendant's  costs,  expenses,  and  attorney  fees,  as  found  ty  the  court. 
If  the  corporation  fail  in  any  case  to  make  payment  or  deposit,  as  provided  in  the  pre- 
ceding section,  within  thirty  days  after  confirmation  of  the  verdict,  the  probate 
judge,  on  motion  of  the  party  entitled  to  such  payment,  to  be  filed  within  ten  days 
after  the  expiration  of  said  thirty  days,  shall  enter  an  order  directing  the  corporation 
to  make  such  payment  or  deposit  within  thirty  days  after  the  date  of  such  order;  and 
unless  such  corporation,  within  said  thirty  days,  make  such  payment  or  deposit,  it 
shall  be  held  and  considered  to  have  thereby  abandoned  the  property,  rights,  or 
interests  so  appropriated,  and  all  claims  thereon  under  its  proceeding,  and  the  judge 
shall  issue  an  order  to  that  effect;  the  judge  shall  also  enter  a  judgment  against  the 
corporation,  and  in  favor  of  the  party  entitled  to  such  payment,  for  such  amount  of 
expenses,  including  time  spent,  and  attorney  fees,  incurred  by  him  in  the  proceeding, 
as  the  court,  upon  the  evidence  offered  in  that  behalf,  deems  just  and  reasonable,  for 
which  execution  may  be  issued  against  the  corporation;  and  the  directors  of  the  cor- 
poration, individually,  shall  be  liable  upon  such  judgment,  and  may  be  made  parties 
thereto  by  action.     (March  23,   1875,  72  v.  71,  §   10.) 


Right  to  abandon  proceedings. 

See  State  ex  rel.  v.  Cincinnati,  etc.,  R.  R.  Co.,  17  Oh.  St.  103 
nation  Proceedings,  7  N.  P.  605. 


;1866).     See  In  re  Condem- 


§  6435.  WHEN  ACTION  MAY  BE  BROUGHT  FOR  COSTS  AND  EXPENSES.— 
If  such  judgment  be  not  satisfied  within  thirty  days  after  the  rendition  thereof,  or  if 
the  party  entitled  thereto  be  not  satisfied  with  the  amount  thereof,  such  party  shall 
have  a  right  (of  action)  against  the  petitioner  for  his  expenses  aforesaid,  inc'uding 
time  spent,  and  attorney  fees,  and  also  for  his  expenses,  including  reasonable  attorney 
fees,  incurred  in  prosecuting  such  action;  but  the  action  shall  be  brought  within  six 
months  after  the  rendition  of  the  judgment  in  the  probate  court.  (March  23.  1875, 
72  v.  71,  §  10.) 


614 


Private  Corporations  in  Ohio. 


New  Trial  —  Petition  in  Error,   §§  6436,  6437. 


§  6436.  NEW  TRIAL;  PROCEEDINGS  THEREON.— A  new  trial  shall  be 
granted  for  cause  only,  shall  take  place  in  the  same  court  where  the  first  trial  was 
had,  and  shall  be  conducted  in  accordance  with  the  provisions  of  this  chapter  for  the 
first  trial,  so  far  as  they  are  applicable;  and  upon  the  granting  of  the  motion  for  a 
new  trial,  if  the  amount  of  the  first  verdict  has  been  paid  into  court,  the  probate 
judge  shall  retain  the  same  until  the  final  termination  of  the  second  trial;  but  if, 
upon  the  new  trial,  the  verdict  of  the  jury  exceed  the  amount  of  the  first  verdict,  the 
corporation  shall  pay  the  amount  of  the  first  verdict,  together  with  the  excess,  to  the 
owner  of  the  property;  and  if  the  verdict  upon  the  second  trial  be  less  than  that  of 
the  first,  the  probate  judge  shall  repay  to  the  corporation  the  difference.  If  a  new 
trial  be  granted  at  the  instance  of  the  owner  of  the  property,  and  the  verdict  of  the 
jury  be  the  same  or  less  in  amount  than  that  first  rendered,  the  owner  shall  pay  the 
whole  costs  of  the  second  trial;  and  if  it  be  more  than  that  first  rendered,  the  costs 
of  the  second  trial  shall  be  paid  by  the  corporation.     (April  23,  1872,  69  v.  88,  §  11.) 


trial. —  See  Wagner  v.  Railway  Co.,  38  Oh. 
St.  32,  39  (1882)  ;  Trustees  v.  Banning,  21  W. 
L.  B.  9    (1888). 

Injunction    against    appropriation. 

The  remedy  of  a  landowner  dissatisfied  with 
an  appropriation,  and  claiming  the  company 
has  varied  from  the  route  specified  in  its 
charter,  lies  in  the  appropriation  proceedings, 
not  in  equity. —  Walker  v.  Mad  River,  etc., 
R.  R.  Co.,  8  Oh.  3S    (1837). 

§  6437.  EITHER  PARTY  MAY  FILE  A  PETITION  IN  ERROR.—  Either  party 
may  file  a  petition  in  error  in  the  court  of  common  pleas  of  the  proper  county,  within 
thirty  days  from  the  rendition  of  the  final  judgment  in  the  probate  court  and  the 
proceedings  in  error  shall  be  conducted  as  in  civil  actions;  but  the  corporation  may, 
on  the  rendition  of  the  final  judgment  in  the  probate  court,  pay  into  said  court  the 
amount  of  the  judgment  for  compensation  and  costs  therein  rendered,  and  proceed  to 
enter  upon  and  appropriate  the  property,  notwithstanding  the  pendency  of  the  pro- 
ceedings in  error.     (April  23,   1872,  69  v.  88,  §   12.) 


When  owner  entitled  to  payment. 

The  money  paid  in  on  the  first  verdict, 
which  is  afterward  set  aside.,  remains  the 
property  of  the  corporation  until  the  final  de- 
termination of  the  second  trial;  and  if  the 
second  verdict  is  less  than  the  deposit,  the 
excess  is  returned  to  its  owner,  but  if  greater, 
the  corporation  must  increase  the  deposit  to 
equal  the  second  verdict,  to  entitle  it  to  take 
the  property.  This  section  gives  no 'right  to 
appropriate  the   property  pending   the  second 


When  petition  in  error  can  be  filed. 

When  a  verdict  fixing  the  amount  of  com- 
pensation to  be  paid  has  been  rendered  by  the 
jury,  and  an  order  or  judgment  of  confirma- 
tion of  such  verdict  entered  by  the  court 
under  §  0432,  proceedings  in  error  may  be 
prosecuted  by  the  defendant  in  the  proceed- 
ings to  reverse  such  order  or  judgment 
of  confirmation,  before  the  compensation 
awarded  by  the  jury  has  been  paid,  or 
the  order  provided  for  in  §  6433  made. — 
Toledo,  etc..  Rv.  Co.  v.  Toledo,  etc.,  Ry.  Co., 
6  0.  C.  C  362  (1892);  Cincinnati,  etc..  R.  R. 
Co.  v.  Barcalow.  4  O.  C.  C.  49  (1889).  See 
Toledo,  etc.,  Ry.  Co.  v.  Toledo,  etc.,  Ry.  Co..  6 
O.  C.  C.  521  (1892). 

Limitation  of  thirty  days. 

The  limitation  fixed  by  this  section  is  not 
affected  bv  §  6723. —  See  Buckingham  v. 
Steubenville,  etc.,  R.  R.  Co.,  10  Oh.  St.  25 
(1859). 

Petition    must    be    filed    within    thirty 
days. 

The  proceedings  of  the  probate  court  can  be 
reviewed  by  the  common  pleas  court  only 
when  the  petition  in  error  is  filed  within 
thirty  days  from  the  rendition  of  final  judg- 


ment, and  whether  a  petition  was  filed  in 
time  or  not  is  to  be  determined  by  the  record. 
This  limitation  applies  to  proceedings  begun 
by  the  landowner  as  well  as  those  begun  by 
the  company. —  Cleveland,  etc..  Rv.  Co.  v. 
Wick.  35  Oh.  St.  247  (1879);  Little* Miami  R. 
R.  Co.  v.  Hopkins,   19  Oh.   St,  279    (1S69). 

Owner  is  entitled  to  money  when   land 
is  taken. 

When  a  company  pays  into  court  the  ' 
amount  of  the  compensation  under  this  sec- 
tion, it  is  the  duty  of  the  probate  judge,  on 
the  demand  of  the  owner,  to  pay  over  to  him 
the  amount  of  such  judgment,  notwithstand- 
ing the  pendency  of  proceedings  in  error,  and 
the  objection  of  the  corporation.  His  official 
bond  is  liable  for  his  failure  in  this  regard. — 
Meily  v.  Zurmehlv,  23  Oh.  St.  627  (1873).  See 
Wagner    v.    Railroad    Co.,   38   Oh.    St.    32,   39 

(1882);    Trustees  v.  Banning  21   W.  L.  B.  9 

(1888). 

Review      of     findings      on      preliminary 
matters. 

The  finding  and  order  of  the  probate  court 
made  upon  the  preliminary  hearing  may  be 
reviewed  on  petition  in  error. — -Toledo,  etc., 
Ry.  Co.  v.  Toledo,  etc.,  Ry.  Co.,  6  O.  C.  C.  362 


Appropriation  01   Property.  615 

Error  —  School  Lands,  etc.,    SS    6438  0440. 

Motion  for  next  trial,  orhen  t«  be  I  Led, 
etc. 

Bee  C.  C.  i  il  Tel. 

Co.,  22  0.  C.  C.  556   I  1901). 


(1892);  Toledo,  etc..  Ily.  < '».  v.  Toledo,  etc., 
Ry.  Co.,  (i  O.  C.  C.  521  (1892).  Contra,  Ohio 
Postal,  etc.,  Co.  v.  Railway  Co.,  8  N.  1'.  121 
(1900). 


§  6438.  PROCEEDINGS  IN  THE  COMMON  PLEAS  ON  ERROR.—  If  the  court 
of  common  pleas,  upon  the  hearing  of  the  cause,  affirm  the  judgment  of  the  probate 
court,  all  the  costs  in  the  court  of  common  pleas  shall  be  paid  by  the  plaintiff  in  error; 
and  if  it  reverse  such  judgment,  it  shall  retain  the  cause  for  trial  and  final  judgment, 
as  in  other  cases,  which  trial  shall  be  had  at  the  term  of  reversal  of  the  judgment, 
unless  for  good  cause  shown  by  either  party  the  court  grant  a  continuance;  and  on 
the  trial  of  the  cause  in  the  court  of  common  pleas,  the  same  inquiry  shall  be  made 
as  to  the  interest  of  the  jurors,  and  the  same  oath  shall  be  administered  to  the  jury, 
as  is  provided  for  in  sections  sixty-four  hundred  and  twenty-five  and  sixty-four 
hundred  and  twenty-seven.     (April  23,  1872,  69  v.  88,  §  13.) 


Proceedings  in  error  from  judgment  of 
reversal. 

Where    an   order   of   the   probate   court    ap- 


latter  assessment,  to  allow  and  include  in  the 
\  erdicl .  interesl   from  and  after  t  he  t  imi 
session    of    I  he    prop*  i  ty     appropi  iatei 


propriating  land  for  right  of  way  of  a  railway     taken,  and  while  the  money   was  retained  by 


company  is  reversed  in  the  court  of  common 
pleas,  error  will  not  lie  to  reverse  such  judg 
ment  of  reversal. —  Railway  Co.  v.  Bailey,  39 
Oh.  St.  170  (1883).     See  Cincinnati,  etc.,  R.  R. 
Co.  v.  Barcalow,  4  O.  C.  C.  49,  50   (1889). 

Interest  may  be   allowed. 

Where  a  company  pays  into  court  the  dam- 
ages assessed,  and  takes  possession  of  the 
property,  and  upon  petition  in  error,  the  as- 
sessment is  set  aside  and  a  new  one  awarded, 
it   is  competent  for  the  jury,  in   making  the 


the    court.  -Atlantic,   etc.,    Ry,   (  o.   v.    Kob* 
lentz,  2]  Oh.  St.  334  (1871). 

Common     pleas      court     cannot      render 

personal   judgment. 

The  court   of  common   pleas,  on  petition  in 
error,  is  not  authorized,  on  affirming  th< 
ment.    to    render    a    judgmenl     in    personam 
againsl    the   corporation   for  the   amount 
judged    against    it     in    the    probate    court. — 

land,  etc.,   Ry.  <  o.   v.  Wick,  ! 
247    (1879). 


§  6439.  HOW  SCHOOL  LAND  MAY  BE  APPROPRIATED.— When  a  raiiroad 
company,  incorporated  in  this  state,  has  located  its  railroad  through  any  part  of 
reserved  sections  twenty-nine  or  sixteen,  or  through  any  part  of  sections  granted  by 
congress  in  lieu  of  section  sixteen,  for  school  purposes,  and  such  lands  remain  unsold, 
or  through  any  town  lot  or  parcel  of  ground  used  for  or  devoted  to  school  purposes,  it 
may  appropriate  so  much  of  such  land  or  lots  as  may  be  necessary  for  the  purposes 
aforesaid;  and  service  of  the  summons  made  on  such  trustees  or  school  officers  as  have 
possession  or  control  of  the  lands,  shall  have  the  same  force  and  effect  as  service  in 
any  other  case  on  owners  of  land  sought  to  be  appropriated.  The  money  arising  from 
such  appropriation  shall  be  disposed  of  by  such  trustees  or  school  officers  in  accord- 
ance with  the  law.     (April  23,  1872,  69  v.  88,  §   14.) 

Purpose   of   section. 

See  State  ex  rel.  v.  Cincinnati,  etc.,  Ry.  Co.,  37  Oh.  St.  157,  171   (1881). 

§  6440.  WHEN  PROCEEDINGS  TO  APPROPRIATE  PRIVATE  PROPERTY 
MAY  BE  COMMENCED  IN  COURT  OF  COMMON  PLEAS.— When  the  probate  judge 
is  interested,  either  as  stockholder,  director  or  otherwise,  in  a  corporation  seeking  to 
appropriate  private  property  to  its  use,  or  if  before  filing  the  petition,  it  is  made  to 
appear  to  the  satisfaction  of  a  judge  of  the  court  of  common  pleas  of  the  county 
wherein  the  action  is  sought  to  be  brought,  that  such  probate  judge  is  interested 
either  as  owner  or  otherwise  in  the  property  sought  to  be  appropriated,  or  by  reason 
of  sickness,  absence  or  other  incapacity  is  and  will  be  unable  to  preside  at  the  trial, 
the  proceedings  authorized  by  this  chapter  may  be  commenced  in  the  court  of  com- 
mon pleas  of  the  county;  and  in  that  case  the  proceedings  shall  conform  in  all 
respects,  so  far  as  applicable,  to  the  provisions  of  this  chapter,  and  all  the  powers 


616  Private  Corporations  in  Ohio. 


Attorney,   Appointment  of  —  Conflicting  Claims,   §§   6441-6444. 


conferred  and  duties  imposed  thereby  upon  the  probate  court  shall  devolve  upon  the 
court  of  common  pleas;  and  said  court  may  make  such  orders  and  direct  such  pro- 
ceedings to  be  had  as  may  be  necessary  to  do  full  justice  between  the  parties  accord- 
ing to  the  true  spirit  and  intent  of  this  chapter;  and  after  final  judgment  the  cor- 
poration may,  on  depositing  the  amount  of  the  judgment  and  costs  assessed  in  said 
court  -with  the  clerk  thereof,  be  entitled  to  enter  into  possession  of  the  property 
sought  to  be  appropriated.  In  case  such  court  is  not  in  session  when  the  proceedings 
are  commenced  therein,  nor  on  the  day  fixed  for  the  inquiry  and  assessment  of  com- 
pensation, a  special  term  thereof  shall  be  held  in  the  same  manner  as  provided  in  sec- 
tion 2239  of  said  statute.  (April  6,  1891,  88  v.  281;  April  19,  1883,  80  v.  218; 
R.  S.  1880;  April  23,  1872,  69  v.  88,  §  15.) 

§  6441.  COURT  TO  APPOINT  ATTORNEY  FOR  PARTY  ABSENT  OR  UNDER 
DISABILITY. —  When  a  party  in  interest  is  unknown,  or  his  residence  is  unknown, 
and  when  service  has  been  made  by  publication,  and  the  party  has  not  appeared  in 
the  proceedings  by  agent  or  attorney,  or  when  such  party  in  interest  is  under  any 
legal  disability,  and  has  no  legal  guardian  or  trustee  within  the  county  where  the 
action  is  brought,  the  court  shall  appoint  some  competent  attorney  to  attend  upon  the 
proceedings,  and  protect  the  rights  and  interests  of  such  party;  and  the  court  shall 
fix  the  amount  of  the  fees  of  the  attorney  for  such  service,  which  shall  be  payable 
out  of  any  money  paid  on  the  judgment  rendered  in  such  case  for  property  appro- 
priated.    (April  23,  1872,  69  v.  88,  §  16.) 

§  6442.  CONFLICTING  CLAIMS  NOT  TO  BE  PASSED  UPON.— When  there 
are  diverse  or  conflicting  claims,  legal  or  equitable,  to  the  real  estate,  or  any  interest 
therein,  sought  to  be  appropriated  under  the  provisions  of  this  chapter,  the  jury  or 
court  shall  not  pass  upon  the  same  in  the  proceedings  for  appropriation,  but  such 
claims  shall  be  reseryed  for  adjudication  as  hereinafter  provided.  (April  23,  1872, 
69  v.  88,  §   18.) 

§  6443.  BUT  TO  BE  ADJUDICATED  IN  THE  COMMON  PLEAS.—  Upon  the 
payment  of  the  money  into  court  by  the  corporation,  a  party  claiming  a  legal  or  equi- 
table interest  in  the  property,  or  the  money  arising  therefrom  by  such  appropriation, 
may  file  his  petition  in  the  court  of  common  pleas  of  the  proper  county,  making  the 
other  claimants  to  the  property  or  money  parties  thereto,  setting  forth  the  facts  on 
which  the  claim  is  founded,  the  fact  of  the  appropriation  of  the  property,  the  amount 
of  money  so  paid  in  therefor,  and  such  other  facts  as  are  proper  to  enable  the  court  to 
hear  and  determine  the  matter  between  the  claimants;  and  the  court  shall  forthwith 
appoint  some  master  of  the  court,  or  other  suitable  person  selected  by  the  parties,  to 
hold  and  safely  keep  such  fund,  or  invest  the  same  in  the  manner  the  court  shall 
direct,  after  hearing  the  parties;  and  such  fund  shall  thenceforth  represent  the  land, 
and  the  interests  therein,  and  be  subject  to  the  control  of  the  court  having  jurisdiction 
of  the  case,  by  orders  entered  in  the  action,  according  to  the  rights  of  the  parties  to 
the  land  or  fund,  as  from  time  to  time  the  court  may  determine.  (April  23,  1872, 
69  v.  88,  §   19) 

§  6444.  SUCH  PROCEEDING  A  CIVIL  ACTION.—  Such  proceeding  in  the  court 
of  common  pleas,  shall  be  considered  and  held  to  be  a  civil  action;  and  the  conflict- 
ing claims  of  parties  to  the  fund  aforesaid  shall  be  determined  by  the  court,  or  by  a 
jury  trial,  according  as  the  claim  is  equitable  or  legal,  in  the  same  manner  as  if  the 
land  had  not  been  converted  into  money.     (April  23,  1872,  69  v.  88,  §  20.) 

Right  to  trial  by  jury.  I  rights.—  See     Skerrett     v.     Presbyterian     So- 

These   sections   do  not  grant   any   right   to     ciety,  41  Oh.  St.  606  (1885). 
trial   by    jury.     They   only    preserve   existing  I 


Appropriation  of   Property.  617 

Unfinished  Road-bed  of  Railroad,  8§  6445  6447. 


§  6445.  UNFINISHED  ROAD-BED  OF  RAILROAD  COMPANY  MAY  BE  CON- 
DEMNED.—  Any  railroad  corporation  of  this  state  may  condemn  and  appropriate  to 
its  own  use  the  interest  and  easement  in  and  quiet  title  to,  any  unfinished  road-bed, 
or  part  thereof,  lying  within  the  state,  and  on  the  line  of  its  proposed  road,  owned  or 
claimed  by  any  other  railroad  company  or  companies,  person  or  persons,  partnership 
or  corporation,  when  such  road-bed,  or  part  thereof  has  remained,  or  shall  heif- 
remain,  in  an  unfinished  condition,  and  without  having  the  ties  and  iron  placed,  and 
continued  thereon  for  the  period  of  five  years  or  more,  immediately  preceding  the 
commencement  of  proceedings  to  condemn  or  appropriate  the  same  as  herein  author- 
ized, and  every  such  company,  or  companies,  person  or  persons,  partnership  or  corpo- 
ration, shall  be  made  a  party  defendant  to  such  proceedings  to  condemn  or  appro- 
priate the  same,  and  shall  be  required  to  answer  therein,  setting  forth  fully  its  or 
their  title  to  or  interest  in  such  road-bed,  or  part  thereof,  so  sought  to  be  appropriated, 
or  condemned,  if  any,  it  or  they  may  claim,  to  which  answer  the  plaintiff  shall  plead 
issuably,  unless  it  admit  the  validity  of  the  defendant's  claim;  and  in  such  case,  if 
such  party  defendant  be  a  non-resident  of  this  state,  or  a  foreign  corporation,  service 
of  summons  may  be  made  by  publication,  under  subdivision  three  of  section  five  thou- 
sand and  forty-eight  of  the  revised  statutes  of  Ohio,  and  that  the  terms  company  or 
companies,  as  used  in  this  chapter,  shall  be  held  to  embrace  also  person  or  persons, 
partnership  or  corporation  as  used  in  this  section.  (April  5,  1882,  79  v.  65;  R.  S. 
1880;  March  23,   1875,  72  v.   71,  §  2.) 

No  application  to  ordinary  proceedings. 

See  Valley  Ry.  Co.  v.  Pouchot,  4  O.  C.  C.  187,  103  (1889). 

§  6446.  PROCEEDINGS  IN  SUCH  CASE.—  When  it  is  determined  by  the  court, 
upon  issue  of  law,  or  by  the  jury  upon  issue  of  fact,  or  by  the  admission  of  the  plead- 
ings, or  by  reason  of  failure  to  plead  that  any  such  company  asserting  such  owner- 
ship or  claim  is  not  entitled  thereto,  judgment,  including  costs,  shall  be  rendered 
accordingly;  but  when  it  in  like  manner  is  determined  that  any  such  company  has  an 
interest  in  such  road-bed,  or  part  thereof,  so  sought  to  be  appropriated,  the  jury  shall 
determine  and  state  the  amount  of  compensation  due  to  such  company,  according  to 
law,  on  account  of  the  appropriation  of  such  interest.     (March  23,  1875,  72  v.  71,  g  9.) 

§  6447.  IN  WHAT  COURT  SUCH  PROCEEDINGS  MAY  BE  COMMENCED.— 
Proceedings  under  this  act  may  be  commenced  in  the  probate  court,  the  court  of 
common  pleas  or  the  superior  court  of  any  county  in  this  state  in  which  such  road-bed 
or  part  thereof  so  sought  to  be  appropriated  or  condemned  may  be  situated,  all  or  part 
only  of  such  road-bed,  within  this  state  may  be  included  in  one  proceeding,  and  when 
such  proceeding  is  commenced  in  the  court  of  common  pleas  or  superior  court,  the 
same  proceeding  shall  be  had  as  is  prescribed  in  this  chapter  for  the  conduct  of  the 
same  in  the  probate  court,  so  far  as  the  same  may  be  applicable  to  such  common 
pleas  or  superior  court,  and  not  excepted  in  this  section,  and  the  case  shall,  on  motion, 
be  taken  out  of  its  order  by  the  court  or  by  any  reviewing  court,  and  determined 
without  any  unnecessary  delay;  and  proceedings  in  error  to  such  common  pleas  or 
superior  courts,  may  be  commenced  directly  in  the  supreme  court,  but  the  provisions 
of  this  chapter  as  to  viewers  shall  not  apply  to  appropriations  authorized  by  such 
sections,  and  when  any  railroad  corporation  shall  commence  proceedings  under  this 
act,  the  president  of  said  corporation  shall  make,  subscribe  and  file  in  the  court 
where  any  such  proceedings  is  had,  a  statement  under  oath,  declaring  that  it  is  the 
bona  fide  intention  of  said  corporation  to  complete  and  operate  a  railroad  on  th3 
road-bed  so  sought  to  be  appropriated;  and  if  said  corporation  shall  for  a  period  cf 
one  year  after  it  shall  have  acquired  right  to  occupy  the  road-bed.  fail  to  expend  in 
and  about  the  completion  of  a  railroad  thereon  a  sum  equal  to  twenty-five  per  centum 
of  the  total  cost  of  completing  the  same,  to  be  estimated  by  the  commissioner  of  rail- 


618  Private  Corporations  in  Ohio. 

Action  to   Compel  Appropriation,    §   6448. 

roads  and  telegraphs,  then  and  in  such  case  the  said  road-bed  shall  be  open  to  appro- 
priation and  condemnation  under  this  act  by  any  other  railroad  corporation.  The 
words  road-bed  used  in  this  act  shall  be  held  to  include  right  of  way,  depot  grounds 
and  other  easements  connected  therewith,  and  it  shall  be  sufficient  in  the  petition 
and  proceedings  under  this  act  to  designate  the  road-bed  as  the  road-bed  of  the  rail- 
road corporation  by  which  the  route  of  the  road  was  located  and  established  with 
the  terminal  points  within  which  appropriation  is  sought.  (April  5,  1882,  79  v.  65; 
R.   S.    1880;  March  23,   1875,   72  v.    71,   §   9.) 

§  6448.  PROCEEDINGS  WHEN  LAND  IS  HELD  WITHOUT  AGREEMENT  BY 
A  CORPORATION  —  When  a  corporation,  authorized  by  law  to  make  appropriation 
of  private  property  or  the  land. named  in  section  six  thousand  four  hundred  and 
thirty-nine  of  this"  chapter,  has  taken  possession  of,  and  is  occupying  or  using  the 
land  of  any  person,  or  the  land  mentioned  in  said  section  six  thousand  four  hundred 
and  thirty-nine,  for  any  purpose,  and  the  land  so  occupied  or  used  has  not  been 
appropriated  and  paid  for  by  the  corporation,  or  is  not  held  by  any  agreement  in 
writing  with  the  owner  thereof,  or  the  trustees  or  school  officers  having  possession  or 
control  of  the  lands  named  in  said  section  six  thousand  four  hundred  and  thirty- 
nine,  such  owner  or  owners,  or  either  of  them,  or  said  trustees  or  school  officers,  may 
serve  notice,  in  writing,  upon  the  corporation  in  the  manner  provided  for  the  service 
of  summons  against  a  corporation,  to  proceed,  under  this  chapter  to  appropriate  the 
lands,  and  on  failure  of  such  corporation  for  ten  days  so  to  proceed,  said  owner  or 
owners,  or  said  trustees  or  school  officers  may  file  a  petition  in  the  probate  court  of  the 
proper  county  setting  forth  the  fact  of  such  use  or  occupation  by  the  corporation,  that 
the  corporation  has  no  right,  legal  or  equitable,  thei'eto,  and  in  cases  of  reserved  sec- 
tions sixteen  (16)  and  twenty-nine  (29),  or  any  part  of  sections  granted  by  congress 
in  lieu  of  section  16,  for  school  purposes,  named  in  section  six  thousand  four  hundred 
and  thirty-nine,  no  right,  legal  or  equitable,  derived  from  the  trustees  and  officers 
named  therein,  that  the  notice  provided  in  this  section  has  been  duly  served,  that 
the  time  of  limitation  under  the  notice  has  elapsed,  and  such  other  facts,  including 
a  pertinent  description  of  the  land  so  used  or  occupied,  as  may  be  proper  to  a  full 
understanding  of  the  facts.  Such  owner  or  owners,  or  such  trustees  or  school  officers, 
intending  to  institute  said  proceeding,  may  demand,  in  writing,  from  the  president 
or  chief  officer  of  such  corporation  a  specific  description  of  each  parcel  of  land  so  used 
or  occupied  without  appropriation  by  it,  of  the  work,  if  any,  constructed  or  intended 
to  be  constructed  thereon,  and  the  use  to  which  the  same  is  to  be  applied,  and  upon 
failure  of  said  corporation  for  ten  days  to  furnish  the  same,  as  fully  and  completely 
as  would  be  required  of  it  in  proceeding  under  section  six  thousand  four  hundred  and 
sixteen,  the  fact  of  such  demand  and  failure  may  be  alleged  in  the  petition  in  such 
proceeding,  and  on  notice  to  the  corporation  and  proof  thereof  being  made  to  the  pro- 
bate judge  having  jurisdiction  of  such  appropriation,  he  shall  restrain  said  corpora- 
tion from  the  use  and  occupation  of  said  land  until  said  demand  has  been  complied 
with,  or  such  owner  or  owners,  or  said  trustees  or  school  officers  may  cause  the  neces- 
sary surveys  to  be  made  therefor,  and  the  costs  thereof  shall  be  taxed  to  said  cor- 
poration in  said  proceeding.  (April  12,  1883,  80  v.  114;  R.  S.  1880;  April  23,  1872, 
69   v.    88,    §    21.) 

Constitutionality.  I  track,  with  the  verbal  consent  of  the  owner, 

Ihis  section  does  not  violate  art.  14  of  the     on  condition  of  compensation  verbally  prom- 


TJnited    States    Constitution. —  In   re    George, 
5  O.  C.  C.  207    (1891). 

Rights    -where    land    is    held    on    verbal 

en:reemen+. 

Whore  a  railroad  company  has  taken  posses- 
sion of  land  for  its  right  of  way,  and  incor- 
porated it  as  a  part  of  its  permanent  railroad 


ised,  but  refused  and  not  performed,  and  with- 
out appropriation  proceedings  and  without 
any  agreement  in  writing  with  the  owner, 
such  owner  may  elect  to  proceed  under  this 
section  or  proceed  on  the  verbal  agreement 
for  compensation. —  Fries  v.  Wheeling,  etc., 
Ey.  Co.,  56  Oh.  St.  135  (1S97) ;  s.  c,  IS  0.  C.  C. 
721. 


Appropriation  of  Property. 


619 


Action  to   Compel   Appropriation,    §   6448. 


No  action  under  this  section  after 
breach  of  covenant  and  condition  to 
build  road  in  certain  time. 

See   Field  v.   Lake  Shore,  etc.,  Ry.   Co.,   13 
C.  D.  1  (1897)  :  s.  c.  62  oil.  St.  633. 

Jurisdictional  facts. 

One  of  the  jurisdictional  facts  to  be  averred 
in  the  petition  and  proven  is  that  the  corpo- 
ration "  has  no  right,  legal  or  equitable,  in  the 
premises,"  otherwise  the  court  has  no  juris- 
diction to  impanel  a  jury  to  assess  damages. 
—  In  re  George,  5  0.  C.  C.  207    (1891). 

Jurisdictional  averments. 

See  Pittsburg,  etc.,  R.  R.  Co.  v.  Perkins, 
22  0.  C.  C.  630   (1888). 

Jurisdictional  facts  —  how  found. 

Jurisdiction  of  a  proceeding  under  this  sec- 
tion is  conferred  upon  the  probate  court,  and 
the  facts  which  entitle  the  owner  to  maintain 
such  suit,  being  issuable  and  subject  to  deter- 
mination in  the  exercise  of  the  jurisdiction 
so  conferred,  need  not  be  found  by  the  couri 
before  impaneling  a  jury. — ■  Kramer  v.  To- 
ledo, etc.,  R.  R.  Co.,  53  Oh.  St.  436  (1895). 
See  In  re  George,  5  0.  C.  C.  207,  213    (1891). 

"Who    is    an    owner   of    land   within    this 
section. 

The  plaintiff  must  be  the  owner  of  the  legal 
title  to  the  lands  involved. —  See  Rapp  v. 
Ohio  Southern  R.  R.  Co..  5  X.  P.  497  (18118)  ; 
Harrison  v.  Village  of  Sabina,  14  W.  L.  B.  27 
(1885);  Railroad  Co.  v.  Davis,  19  O.  C.  C.  589 
(1900). 

Action    must    be    by    the    owner    or    his 
heirs,   not  his  administrator. 

An  action  by  an  administrator  to  recover 
of  a  railroad  company  compensation  and  dam- 
ages for  wrongfully  taking  and  appropriating 
lands  of  the  decedent  during  his  lifetime  can- 
not be  maintained,  for  the  reason  that  such 
wrongful  taking  did  not  divest  the  decedent 
of  his  title  to  the  land,  and  it.  therefore,  de- 
scended at  his  death  to  his  heirs. —  Railway 
Co.  v.  O'Harra,  50  Oh.  St.   067    (1893). 

Parties  —  when  company  is  in  hands  of 
receiver. 

When  the  title  and  estate  of  the  road  is 
not  in  the  receiver,  the  company  is  the  proper 
party  to  enforce  appropriation. —  Pittsburg, 
etc..*  R.   R.    Co.    v.    Perkins,   22    0.   C.    C.    630 

(1888). 

Ownership   of  land  —  how  tried. 

In  a  proceeding  under  this  section,  either 
party  is,  on  demand,  entitled  to  trial  by  jury 
on  an  issue  of  fact  as  to  the  ownership  of  the 
land.  But  where  no  demand  is  made,  the  ques- 
tion may  be  heard  and  determined  by  the 
court.  The  jurisdiction  of  the  probate  court 
is  not  defeated  by  a  denial  of  the  title  of  the 
plaintiff:  and  the  court  may.  on  the  demand 
of  either  party,  proceed  and  impanel  a   jury 


for  the  trial  of  the  issue,  in  any  of  the  ap- 
propriate mode-  provided  by  Btatute  for  the 
impaneling  of  juries  in  the  common  pleas 
court.  Railroad  Co.  v.  O'Harra,  ;-  Oh.  St. 
343   (1891). 

Wrongful   taking   does   not   divest   title. 
The  wrongful  taking  of  land  by  a   railroad 
company   for  a   right   of  \\;>\    does  nol    divest 
the  title  of  the  owner,  and  reduce  hie  remedy 
to  a    lucre  claim    for  compensal  ion  and  dam- 
ages.      He    continue-,    the    legal    owner    of    the 
land  urn  il  he  loses  the  til  le  by  adverse  pi 
Bion. —  Railway   Co.    v.    O'Harra,   50   Oh.    St. 
667,  678   i  L893)  ;    Fries  v.   Wheeling,  et< 
<  o.,  56  Oh.   St.    L35    l  1897) ;    Railroad   <  o.  v. 
Perkins,  49  Oh.  St.  362   (1892)  ;   Railroad  Co. 
\.  Mllarra.  is  in,.  St.  343  i  1891  i.     See   Hatry 
\.    Painesville,  etc.,    Ry.   I  o.,    I    0.   C.   C.    126 
i  lSSli)  ;    Atlantic,   etc.,    R.   R.   I  ...   ...    Robbins, 

35  Oh.  St.  531,  540  I  1880). 

Joint  liability. 

The  lessor  and  lessee  of  a  railroad  may  be 
jointly  liable  for  permanent  injuries  to  land 
abutting  on  a  highway.  Railroad  I  o  v 
Hambleton,  40  Oh.  St.  496   (1884). 

Interest  in  highways. 

Though  the  land  taken  is  a  public  highway, 

ii-    occupation    for    railway    pui  posi  - 
upon  ii  an  additional  servitude  for  which  the 
owner  of  the  fee  is  entitled  to  compensation, 
and  may  enforce  hi-  rights  under  this  Bection. 
—  Kramer  v.  Toledo,  etc.,  R.  R.  I  ....  53  Oh.  St. 
136,  441   i  1895)  ;    Railroad  Co.  v.  O'Harra,  4s 
Oh.  St.  343  i  1891  I  ;  Valley  Ry.  Co.  v.  Pouchot, 
4  O.  C.  C.   187    (1889)  :    Lawrence   K.   R.  I 
William-.  35  Oh.  St.   Mis     is;-,  :   Railroad  Co. 
v.  Wartenbee,  35  W.  L.  B.  2   (1895)  ;  -. 
Oh.   St.   089. 

Raising  track  in  street  is  taking  prop- 
erty. 

See  Railroad  Co.  v.   Hambleton.   40  Oh.   St. 
196    I  1884). 

Estoppel. 

While  an  owner,  who  stands  by.  and  with- 
out objection,  sees  a  public  railroad  con- 
structed on  his  land.  will,  after  the  road  is 
completed,  or  large  expenditures  have  been 
made  thereon,  upon  the  faith  of  his  apparent 
acquiescence,  be  estopped  from  reclaiming  the 
land,  on  enjoining  its  use  by  the  railroad 
company,  he  i-  nol  thereby  estopped  from 
claiming  compensation. —  Pennsylvania  Co.  v. 
Piatt,  47  Oh.  St.  366  (1890)  ;  G lin  v.  Cin- 
cinnati, etc.,  Canal  Co.,  Is  |  lh.  St.  II 
See  Gorrill  v.  Toledo,  etc..  Ry.  I  ....  4  0." 
398,  406  (1890);  Pries  v.  Wheeling,  etc.,  Rv. 
Co.,  56  Oh.  St.  135  (1897);  Longworth  v.  Cin- 
cinnati. 48  Oh.  St.  ti37  (1891  .  :  Cleveland,  etc.. 
Ry.  Co.  v.  Reid.  4  X.  P.  127       -  atral 

Trust  Co.  v.  Valley  Ry.  Co.,  37  W.  L.  B.  210 
(1897):  Coe  v.  Columbus,  etc.,  R.  R.  Co..  10 
Oh.   St.   411    (1S59). 


620 


Private  Corporations  in  Ohio. 


Action  to   Compel  Appropriation,    §   6449. 


Same  subject. 

When  a  company  enters  upon  land  wrong- 
fully, it  cannot  claim  an  estoppel,  and  it  must 
either  yield  possession  or  pay  for  the  land. — 
Railroad  Co.  v.  Perkins,  49  Oh.  St.  326.  332 
(1892)  :  Atlantic,  etc..  R.  R.  Co.  v.  Robbins,  35 
Oh.  St.  531,  538  (1880).  See  Teegarden  v. 
Davis.  36  Oh.  St.  601  (1881):  Daily  v.  State. 
51  Oh.  St.  348,  363  (1894);  Bothe  v.  Dayton, 
etc.,  R.  R.  Co.,  37  Oh.  St.  146  (1881). 

Measure  of  compensation. 

In  a  proceeding  under  this  section  the 
measure  of  compensation  is  the  value  of  the 
land  at  the  time  it  is  assessed  in  the  pro- 
ceeding.—  Railroad  Co.  v.  Perkins,  49  Oh.  St. 
326   (1892);  s.  c,  22  0.  C.  C.  631   (1888). 

What    damages    cannot    be    recovered. 

Where  the  action  is  by  ths  heirs  of  the 
owner  they  can  only  recover  the  compensa- 
tion for  the  land  taken  and  damages  to  the 
remaining  land,  but  not  such  damages  to  the 
lands  of  the  decedent  as  he  could  have  re- 
covered in  his  lifetime  in  an  action  of  tres- 
pass.—  Railway  Co.  v.  O'Harra,  50  Oh.  St. 
667  (1893).  See  Railroad  Co.  v.  Campbell,  51 
Oh.  St.  328  (1894)  ;  Baltimore,  etc.,  R.  R.  Co. 
v.  Lersch.  58  Oh.  St.  639,  652  (1898)  ;  Railroad 
Co.   v.  Hambleton,   40  Oh.   St.  496    (1884;.        | 

§  6449.  SUMMONS  IN  SUCH  CASE;  JUDGMENT  AND  EXECUTION.—  A  sum- 
mons shall  issue  and  be  served  upon  the  corporation,  and  thereafter  the  proceedings 
in  said  court  shall  be  conducted  to  final  judgment  in  all  respects  as  provided  in  this 
chapter;  and  if  the  corporation  fail  to  pay  the  judgment  and  costs  awarded  against 
it  in  the  proceeding,  the  same  may  be  collected  by  execution  as  in  other  cases;  but 
this  section  shall  not  be  construed  to  impair  or  lessen  in  any  manner  the  right  the 
owner  or  owners  or  the  trustees  or  school  officers  named  in  section  six  thousand  four 
hundred  and  thirty  nine  of  this  chapter  may  have  to  proceed  against  the  corporation 
as  in  all  other  cases  of  the  unlawful  entry  upon  lands.  (April  12,  1882,  80  v.  114; 
B.  S.  1880;  April  23,  1872,  69  v.  88,  §  21.) 
Section   6448   is   cumulative. 


Statute   of  limitations. 

A  proceeding  under  this  section  is  not 
barred  by  the  statute  of  limitations  in  less 
than  twenty-one  years. —  Fries  v.  Wheeling, 
etc.,  Ry.  Co.,  56  Oh.  St.  135  (1897);  Railroad 
Co.  v.  *0'Harra,  48  Oh.  St.  343  (1891);  Rail- 
road Co.  v.  Davis,  19  O.  C.  C.  589   (1900). 

Same  subject. 

The  right  to  compel  appropriation  of  the 
land  of  a  highway  taken  by  a  railroad  com- 
pany by  agreement  with  the  officials  in  charge 
thereof  is  not  barred  by  the  lapse  of  less  than 
twenty-one  years  from  the  time  of  such  occu- 
pation by  the  company.  The  limitation  of 
two  years  in  §  3283  applies  only  to  incidental 
injuries  to  property  on  or  adjacent  to  the 
roadway,  occasioned  by  the  location  and  con- 
struction of  the  railroad,  and  does  not  in- 
clude the  remedy  for  injuries  to.  or  the  taking 
of,  the  land  itself. —  Railroad  Co.  v.  O'Harra, 
48  Oh.  St.  343  (1891);  Railroad  Co.  v.  Ham- 
bleton, 40  Oh.  St.  496  (1884). 

Liien  of  judgment   under  this  section. 

See  Central  Trust  Co.  v.  Valley  Ry.  Co.,  37 
W.  L.  B.  210  (1897). 


The  remedy  provided  in  §  6448  is  not  a  sub- 
stitute for  the  right  to  recover  possession, 
but  it  is  cumulative. —  Railroad  Co.  v.  Per- 
kins, 49  Oh.  St.  326,  330   (1S92). 

Injunction   against    use    of   land    before 
appropriation. 

An  owner  of  land  may  enjoin  the  company 
from  entering  upon  it  before  it  has  been  ap- 
propriated and  paid  for. —  Gorrill  v.  Toledo, 
etc.,  Ry.  Co.,  4  O.  C.  C.  39S,  404  (1890)  ;  Rail- 
way Co.  v.  Lawrence,  38  Oh.  St.  41  (1882); 
Hathaway  v.  Springfield,  etc.,  R.  R.  Co.,  2  W. 
L.  M.  481  (1860).  See  Dayton,  etc.,  R.  R.  Co. 
v.  .Marshall,  11  Oh.  St.  497  (1860);  Coe  v. 
Columbus,  etc.,  R.  R.  Co.,  10  Oh.  St.  411  (1859). 

Same  subject  —  highways. 

The  owner  of  land  abutting  on  a  highway 
may  enjoin  the  construction  of  a  railroad 
therein  until  he  shall  have  been  fully  com- 
pensated, and  in  a  proper  case  a  mandatory 
injunction  may  issue  requiring  the  company 
to  restore  the  street. —  Toledo  Bending  Co.  v. 
Manufacturers'  Ry.  Co.,  2  N.  P.  317   (1895). 


Action   for  ejectment. 

An  owner  of  land  wrongfully  occupied  may 
proceed  under  §  6448  or  bring  his  action  for 
ejectment. —  See  Raymond  v.  Toledo,  etc.,  Ry. 
Co..  57  Oh.  St.  271  (1897),  16  O.  C.  C.  639; 
Atlantic,  etc.,  R.  R.  Co.  v.  Robbins,  35  Oh.  St. 
531  (1880);  Bothe  v.  Dayton,  etc.,  R.  R.  Co., 
37  Oh.  St.  147   (18S1). 

Ejectment  on  breach   of  condition  sub- 
sequent. 

Where  the  owner  of  land,  by  his  written 
contract,  gives  a  company  a  right  of  way  on 
the  payment  of  a  stipulated  price,  with  a  pro- 
vision in  the  contract  that  on  the  completion 
of  the  road  the  company  shall  fence  the 
same,  after  the  road  is  completed,  the  owner 
of  the  land  cannot,  upon  failure  to  put  up 
the  fence,  eject  the  company  from  the  land. 
— ■  Hornback  v.  Cincinnati,  etc.,  R.  R.  Co.,  20 
Oh.  St.  81   (1870). 

Suit  for  compensation  in  common  pleas 
court. 

Where  land  is  held  by  a  company  under  a 
verbal    agreement,    and    the    owner    elects    to 


Appropriation   of   Property 


621 


Action  to  Compel  Appropriation,  8  6450. 


i  in-  company  agreed  to  paj   a  eei  tain  sum  of 
money  at  a  future  day,  and  construe!  certain 
road   crossings   and    cattle-guards,    The   com- 
pany took  possession  and  constructed  h 
e   rec<  i\  ing  a   deed   for  i  he  i  igh(   ol 
and    before    paymenl    of    the    n  con- 

si  ruct  ing  i  he  cro  guards,      i  he  owner 

ia  mi  it  led  to  an  equitabli  lien  upon  i  he  prop- 
erty sold  as  veil  for  1  he  damages  foi  no1  con 
-1  rud  ing  1  he  road  in  i  he  pi  oper  ma  nn< 
for  the  unpaid  purchase  money.  Dayton, 
etc  .  Et.  R.  Co.  v.  Lewton,  20  Oh.  Bt.  401 
(1870).  Sec  Seasongood  v.  Miami,  etc.,  Ry. 
Co.,  9   W.  L.   B.  256     I- 

Same   subject. 

The  owner  entered  into  an  agreemenl  to 
convey  to  it  the  right  of  way  through  his 
land  at  a  certain  price  per  acre,  he  agreeing  to 
take  such  purchase  money  in  hares  ol  the 
capita]  stock  of  the  company  if  the  same 
should  at  the  end  of  two  years  be  worth  its 
face  value,  otherwise  to  be  paid  in  cash.  Tin- 
stock  being  of  no  value  at  the  end  of  two 
years,  he  demanded  the  cash,  which  was  r< 
"fused,  and  suit  brought  to  enforce  his  ven- 
dor's lien  and  to  enforce  the  same  a-  against 
subsequent  purchasers  of  the  road  under  fore- 
closure proceedings  to  which  he  was  not  a 
party.— Ames  v.  Wheeling,  etc.,  Ry.  Co.,  17 
0.  C.  C.  684  (1899). 

Same   subject,  remedy. 

In  Buch  case  the  owner  may  seek-  his  remedy 
by  either  compelling  specific  performance  of 
the  contract,  or  by  enforcing  his  specific  lien. 
—  Dayton,  etc.,  R.  It.  Co.  v.  Lewton,  20  Oh. 
St.  401    (1870). 

Foreclosure   of  lien  —  sale. 

Where  a  person  has  a  lien  on  a  portion  of 
the  road  and  public  interests  preclude  the 
right  of  selling  the  portion  covered  by  the 
lien,  a  necessity  arises  to  decree  the  Bale  of 
the  whole  road,  in  order  that  equity  may  be 
done.— Dayton,  etc..  R.  R.  Co.  v.  Lewton,  'J" 
Oh.  St.  401  (1870).  See  Seasongood  v.  Miami 
\  alley  Rv.  c<...  '•>  W.  L.  P..  256  '  1^:;'  =  A">'-- 
v.  Wheeling,  etc.,  Ry.  Co.,  17  O.  C.  <  684 
(1889);  Stewart  v.  Railway  Co.,  53  oh.  St. 
i:.|    (1895). 

§  6450.  WHEN  INJUNCTION  MAY  ISSUE  AGAINST  CORPORATION.— If 
execution  issued  as  provided  in  the  last  section  be  returned  unsatisfied,  in  whole  or 
in  part,  with  the  endorsement  that  no  goods  or  chattels,  lands  or  tenements,  can  be 
found  whereon  to  levy,  or  if  the  judgment  remain  unsatisfied  for  more  than  sixty  days 
from  the  rendition  thereof,  the  court  may,  by  injunction,  restrain  the  corporation 
from  using  or  occupying  the  lands  until  the  judgment  and  costs  are  fully  paid. 
(April  23,   1872,   69  v.  88,    §   22.) 


treat  it  as  an  appropriation  in  fact  and  ten- 
ders conveyance,  and  sues  in  the  common 
pleas  court,  he  cannot  enlarge  his  Buit  bo  as 
to  include  an  inquiry  of  damages  to  other 
land-,  but  allegations  of  such  damage  will  not 
affect  the  jurisdiction  of  the  common  pleas 
Court.  Sec  also  as  to  statute  of  limitation. 
Fries  v.  Wheeling,  etc.,  Ry.  Co.,  56  Oh.  St. 
135  (1897)  :  s.  c.  is  o.  C.  C.  721,  I  I  0.  C.  C.  55. 

Action  for  trespasr. 

See  Little  Miami  R.  R.  Co.  v.  Whit  acre,  8 
Oh.  St.  590  (1858);  Cleveland.  <-\r..  R.  R.  Co. 
v.  Stackhouse.  in  Oh.  St.  567  (1860);  Hatha- 
way v.  Springfield,  etc.,  R.  R.  Co.,  2  W.  L.  M. 
481  (18(50);  Ward  v.  Marietta,  etc.,  Bridge 
Co.,   6   Oh.    St.    15    (1856). 

Action    for    trespass    not   barred   by   ap- 
propriation. 

See  Schaible  v.  Lake  Shore,  etc.,  Ry.  Co.,  10 
O.  C.  C.  334  (1895). 

No    action   can    be    maintained   for   con- 
version   of   land. 

Where  land  is  taken  wrongfully,  the  owner 
cannot  sue  for  compensation  and  damages  ex- 
cept under  §  6448.  He  cannot  maintain  such 
action  if  the  circumstances  are  such  that  he 
may  recover  the  land. —  Atlantic,  etc.,  R.  R. 
Co.  V.  Robbins,'  35  Oh.  St.  531  (1880);  Co- 
lumbia, etc.,  Turnpike  Co.  v.  Cincinnati,  etc., 
R.  R.  Co.,  5  W.  L.  B.  643   (1880). 

Sale  of  land  on  contract,  notice  to  sub- 
sequent purchasers. 

Where  the  owner  sells  the  right  of  way  to 
the  company  on  contract,  and  retains  the  le- 
gal title,  that  fact  is  sufficient  to  put  subse- 
quent mortgagees  and  purchasers  of  the  road 
upon  inquiry  as  to  the  rights  of  the  owner. — 
Dayton,  etc.,  R.  R.  Co.  v.  Lewton,  20  Oh.  St. 
401  (1870);  Seasongood  v.  Miami  Valley  Ry. 
Co.,  9  W.  L.  B.  256  (1883). 

"When  owner  has  equitable  lien  on  land 
sold. 

When  the  owner  agreed  in  writing  with  the 
railroad  company  to  release  the  right  of  way 
and  the  right  to"enter  upon  and  construct  the 
road  through  his  lands  in  consideration  that 


Payment  must  be  made  —  a  bond  to  pay 
is  not  siifficient. 

By  reason  of  the  constitutional  provision 
prohibiting  the  taking  of  land  without  first 
making  compensation,  a  payment  of  judgment 
must  be  made  within  sixty  day-,  an  undertak- 
ing given  on  filing  the  petition  in  error  is  not 
sufficient.— In  re  George,  5  O.  C.  C.  207,  216 
(1891). 


When  injunction   may  issue. 

The  filing  of  a  petition  in  error  and  the  giv- 
ing of  an  undertaking  does  not  prevent  the 
court  from  enjoining  the  corporation  from 
using  the  property,  but  the  court  ha-  no  ju- 
risdiction to  enjoin  before  the  expiration  of 
sixty  days,  nor  without  an  undertaking  hav- 
ing first  been  given. —  In  re  George,  5  O. 
207    (1891). 


622  Private  Corporations  in  Ohio. 


Fees  and  Costs  in  Appropriation,  etc.,  §§  6451-6453. 


§  6451.  FEES  OF  WITNESSES,  OFFICERS,  AND  PROBATE  JUDGE,  AND  HOW 
COSTS  ADJUDGED. —  The  jurors  summoned,  and  attending  or  serving,  in  accord- 
ance with  the  provisions  of  this  chapter,  shall  each  receive  the  same  fees  per  day  as 
are  provided  by  law  for  jurors  in  the  court  of  common  pleas,  and  also  five  cents  per 
mile  for  each  mile  of  the  distance  they  are  compelled  to  travel  in  the  discharge  of 
their  duties;  the  witnesses  shall  be  allowed  the  same  fees  and  mileage  as  are  allowed 
for  attendance  at  the  court  of  common  pleas;  the  sheriff  shall  be  entitled  to  such 
fees  as  he  is  allowed  by  law  for  similar  services  in  other  cases,  but  he  shall  not  be 
allowed  anything  in  the  way  of  poundage,  except  on  money  made  on  execution; 
the  clerk  shall  be  entitled  to  a  fee  of  one  dollar  and  fifty  cents  for  drawing,  and  certi- 
fying to  the  probate  judge,  the  list  of  jurors;  the  probate  judge  shall  be  allowed  to 
enter  a  charge  of  five  dollars  in  the  cost  bill  for  each  day  occupied  in  the  trial  of  a 
cause,  in  addition  to  his  other  fees  provided  by  law;  and  the  whole  costs  so  taxed 
shall  be  adjudged  against  and  paid  by  the  corporation,  except  as  provided  in  the  next 
section.     (April  23,   1872,  69  v.  88,  §  24.) 

§  6452.  WHEN  COSTS  MAY  BE  APPORTIONED.—  A  corporation,  by  its  proper 
officer,  agent,  or  attorney,  may,  at  the  time  cf  filing  the  petition  With  the  probate 
judge,  deposit  with  such  judge  such  sum  of  money,  for  each  separate  parcel  of  prop- 
erty as  it  deems  a  just  and  equitable  compensation  for  the  property,  rights,  and  inter- 
ests described  in  the  petition,  and  sought  to  be  appropriated;  and  when  the  final  ver- 
dict of  the  jury  as  to  any  parcel  of  property  does  not  exceed  the  amount  so  deposited, 
and  the  owner  has  refused,  after  notice  of  such  deposit,  to  accept  the  same,  the  whols 
costs  of  the  proceeding  as  to  such  parcel  shall  be  equally  divided  between  the  cor- 
poration and  the  owner  or  owners  of  the  property;  and  when  the  final  verdict  as  to 
any  parcel  or  parcels  exceeds,  and  as  to  other  parcel  or  parcels  does  not  exceed,  the 
amount  deposited,  the  probate  judge  shall  apportion  the  costs  in  such  manner  as  he 
may  deem  equitable  and  just.     (April  23,  1872,   69  v.  88,  §  24.) 

§  6453.  WHEN  THIS  CHAPTER  DOES  NOT  APPLY. —  The  provisions  of  this 
chapter  shall  not  apply  to  proceedings  by  state,  county,  township,  district,  or  munici- 
pal authorities,  to  appropriate  private  property  for  public  uses,  or  for  roads  or  ditches; 
and  in  all  such  cases  it  shall  be  optional  with  such  authorities  to  pay  the  judgment 
rendered  against  them  according  to  section  sixty-four  hundred  and  thirty-two,  or  to 
pay  the  costs  and  decline  to  take  the  property  sought  to  be  appropriated.  (April  23, 
1872,  69  v.   88,    §   25.) 


PART    XXVIII. 

CIVIL  PROCEEDINGS    BEFORE   Jl  STICES   OF   THE    PEA(  E. 

§6477.         Its  service  on   corporations. 

§6478.        Suits  before  justice  against  railroad  company;   process;  upon  whom;  and  wliei 

how,  service  of  process  tnaj   be  made;  when  summons  to  be  issued  i"  sheriff,  and 

how  served  and  returned, 
§  6479.        Insurance  company. 
§  6480.        Foreign  corporations. 

§6489.         Afndavil   for  attachment;  what,  to  contain. 
§6499.         How  corporation  served  as  garnishee. 

§  6477.  ITS  SERVICE  ON  CORPORATIONS. —  A  summons  against  a  corpora- 
tion, except  as  hereinafter  specially  provided,  may  be  served  upon  the  president, 
mayor,  chairman  of  the  board  of  directors  or  trustees,  or  other  chief  officer;  or,  if  its 
chief  officer  is  not  found  in  the  county,  upon  its  cashier,  treasurer,  secretary,  clerk,  or 
managing  agent;  or,  if  none  of  the  aforesaid  officers  can  be  found,  by  a  copy  left  at 
the  office,  or  usual  place  of  business  of  such  corporation,  with  the  person  having 
charge  thereof;  but  if  the  defendant  be  an  incorporated  river  transportaticn  company, 
whether  organized  under  the  laws  of  the  state  or  another  state,  the  service  of  a  sum- 
mons may  be  upon  the  master  or  other  chief  officer  of  any  of  its  steamboats  or  other 
craft,  or  upon  any  of  its  authorized  ticket  or  freight  agents,  at  any  port  where  it  may 
transact  business.     (March   14,   1853,  51  v.   179,   §   15.) 

See  §  5041. 

§  6478.  SUITS  BEFORE  JUSTICE  AGAINST  RAILROAD  COMPANY;  PRO- 
CESS; UPON  WHOM,  AND  WHEN  AND  HOW,  SERVICE  OF  PROCESS  MAY  BE 
MADE;  WHEN  SUMMONS  TO  BE  ISSUED  TO  SHERIFF,  AND  HOW  SERVED 
AND  RETURNED.— Suit  may  be  brought  before  a  justice  of  the  peace  against  any 
railroad  company,  in  the  township  in  which  the  president  of  the  company  may 
reside,  or  in  any  township  into  or  through  which  the  road  owned  or  leased  by  said 
company  may  be  located,  whether  such  company  be  foreign  or  created  under  the  laws 
of  this  state,  and  whether  the  charter  thereof  prescribes  the  place  where  suit  must 
be  brought  against  it,  or  the  manner  or  place  of  service  of  process  thereon;  ;:nd  if  the 
principal  business  office  of  the  company  is  not  kept  in  the  township  in  which  any  such 
suit  may  be  brought,  it  shall  be  the  duty  of  the  justice  of  the  peace  to  issue  a  writ 
of  summons  against  said  company,  directed  to  any  constable  in  the  township  in 
which  said  suit  may  be  brought.  The  constable  shall,  on  receipt  of  such  summons, 
forthwith  serve  the  same  personally  upon  the  president  of  such  company,  if  he  be  a 
resident  of  the  county  in  which  suit  is  brought,  or  by  leaving  a  certified  copy  at  h's 
place  of  business,  if  the  same  be  within  such  county:  Provided,  that  if  the  presi- 
dent of  any  such  company  shall  not  be  a  resident  of,  or  have  a  place  of  business 
within,  the  county  in  which  such  suit  shall  be  brought,  it  shall  be  lawful  for  the 
constable  having  such  summons,  to  serve  the  same  personally  upon  the  person  havin-r 
charge  of  a  ticket  office,  or  on  the  person  having  charge  of  a  freight  depot,  owned  by 
or  under  the  control  of  such  company,  if  such  ticket  office  or  freight  depot  be  situ- 
ated within  the  county  where  such  suit  shall  be  brought;  and,  provided,  further,  that 
when  such  summons  shall  be  served  on  either  of  such  last  described  persons,  it  sha  1 
be  done  at  least  eight  days  prior  to  trial;  but  when  served  upon  the  president,   as 

[623] 


624  Private  Corporations  in  Ohio. 


Summons  —  Attachment,   §§  C479-6489. 


aforesaid,  it  may  be  served  in  accordance  with,  the  law  for  serving  summons  issued 
by  justices  of  the  peace:  provided,  that  when  the  president  of  such  company  does  not 
reside,  and  there  is  no  such  officer  or  depot  in  said  county,  then  it  shall  be  the  duty 
of  the  justice  of  the  peace  to  issue  a  writ  of  summons  directed  to  the  sheriff  of  the 
county  where  the  principal  business  office  of  the  company  is  located,  with  an  indorse- 
ment on  the  back  of  the  writ,  of  the  name  of  the  post-office  to  which  said  writ  shall 
be  returned;  and  the  sheriff,  upon  the  receipt  of  said  writ,  shall  forthwith  serve  the 
same  personally  upon  the  president,  if  found,  or  by  leaving  a  copy  at  the  business 
office  of  said  company  with  the  person  having  charge  thereof,  and  immediately  return 
the  said  writ  to  the  justice  of  the  peace  issuing  the  same,  by  mail,  directed  to  the 
post-office  named  on  the  back  of  the  writ.  (March  21,  1850,  48  v.  52,  §  1;  March  31, 
1866,  63  v.  63,   §§  2,  3;  April  30,  1868,  65  v.  116,  §  66;  R.  S.   1880.) 


Section    6477    does    not    apply    to    rail- 
roads. 

See  North  v.   Cleveland,   etc.,  R.  R.  Co.,   10 
Oh.  St.  548   (1860). 
See  generally   §   5041. 


Not   applicable   to   street  railways. 

See  Greene  v.  Woodland,  etc.,  R.  R.  Co.,  62 
Oh.   St.   67    (1900). 

What  is  proper  return. 

See  Jones  v.  Toledo,  etc.,  Ry.  Co.,  20  O.  C. 
C.  63    (1900). 


§  6479.  INSURANCE  COMPANY.— Where  the  defendant  is  an  incorporated 
insurance  company,  and  the  action  is  brought  in  a  county  in  which  there  is  an  agency 
thereof,  the  service  may  be  upon  the  chief  officer  of  such  agency.  (March  14,  1853, 
51  v.   179,  §  16.) 

See  §  5042. 

§  6480.  FOREIGN  CORPORATIONS.—  Where  the  defendant  is  a  foreign  corpo- 
ration, having  a  managing  agent  in  this  state,  the  service  may  be  upon  such  agent. 
(March  14,  1853,  51  v.  179,  §  17.) 

See  §  5043. 

§  6489.  AFFIDAVIT  FOR  ATTACHMENT:  WHAT  TO  CONTAIN.— The  plain- 
tiff shall  have  an  order  of  attachment  against  any  property  of  the  defendant  (except 
as  hereinafter  provided)  in  a  civil  action  before  a  justice  of  the  peace,  for  the  recovery 
of  money,  before  or  after  the  commencement  thereof,  when  there  is  filed  in  this  [his] 
office  an  affidavit  of  the  plaintiff,  his  agent  or  attorney,  showing  the  nature  of  the 
plaintiff's  claim,  that  it  is  just,  the  amount  the  affiant  believes  the  plaintiff  ought  to 
recover,  and  that  the  property  sought  to  be  attached  is  not  exempt  from  execution, 
and,  if  the  personal  earnings  of  the  defendant  are  sought  to  be  attached,  that  the 
defendant  is  not  the  head  or  support  of  a  family,  and  has  not  in  good  faith  the  main- 
tenance and  support  of  a  widowed  mother,  wholly  dependent  upon  him  for  support,  or 
that  such  earnings  are  not  for  services  rendered  within  three  months  before  the  com- 
mencement of  this  action,  or,  that  being  earned  within  that  time,  the  same  amourt  to 
more  than  one  hundred  and  fifty  dollars,  and  that  only  the  excess  over  that  amount 
is  sought  to  be  attached;  or  that  the  claim  on  which  judgment  is  sought  is  for  work 
or  labor  or  for  necessaries;  and  except  when  the  claim  is  for  work,  or  labor  or  for 
necessaries;  also  the  existence  of  some  one  or  more  of  the  following  particulars: 

1.  That  the  defendant,  or  one  of  several  defendants,  is  a  corporation,  having  no 
officer  upon  whom  a  summons  can  be  served,  or  place  of  doing  business  in  the  county, 
or  is  a  non-resident  of  the  county;  provided,  that  no  proceedings  in  attachment  shall 
be  had  to  garnishee  the  salary  or  wages  of  the  employes  of  a  railroad  company  by 
reason  of  his  non-residence,  except  before  a  justice  or  on  account  of  his  being  a  non- 
resident of  the  county  in  which  his  liability  was  incurred;  or, 

2.  Has  absconded  with  intent  to  defraud  his  creditors;  or, 


Actions  Before  Justices  ob  the  Pea<  i.  625 

Attachment,  etc.,   8  6499. 

3.  Has  left  the  county  of  his  residence  to  avoid  the  service  of  a  summons;  or, 

4.  So  concealed  himself  that  a  summons  cannot  be  served  upon  him;  or, 

5.  Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the  county,  with 
intent  to  defraud  his  creditors;  or, 

6.  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money,  for  the  purpose 
of  placing  it  beyond  the  reach  of  his  creditors;  or, 

7.  Has  property  or  rights  of  action  which  he   conceals;  or, 

8.  Has  assigned,  removed  or  disposed  of,  or  is  about  to  assign,  remove  or  dispose 
of  his  property,  or  a  part  thereof,  with  intent  to  defraud  his  creditors;   or, 

9.  Fraudulently  or  criminally  contracted  the  debt,  or  incurred  the  obligation,  for 
which  suit  is  about  to  be  or  has  been  brought. 

When  the  defendant  is  a  corporation,  having  no  officer  in  the  county  upon  whom 
a  summons  can  be  served,  or  place  of  doing  business  in  the  county,  or  is  a  non-res'dent 
of  the  county,  the  attachment  shall  noi  be  granted,  unless  the  claim  is  for  a  debt  or 
demand  arising  upon  contract,  judgment  or  decree,  and  no  attachment  shall  issue  by 
virtue  of  this  chapter  against  the  personal  earnings  of  any  defendant  for  services 
rendered  by  such  defendant  within  three  months  before  the  commencement  of  the 
action  or  the  issuing  of  the  attachment,  unless  the  defendant  is  not  the  head  or  sup- 
port of  a  family,  or  unless  the  amount  of  such  earnings  exceeds  one  hundred  and 
fifty  dollars,  and  then  only  as  to  the  excess  over  that  amount,  or  unless  the  claim 
is  one  for  necessaries,  and  then  for  only  ten  per  centum  of  such  personal  earnings. 
(February  28,  1862,  59  v.  17,  §  28;  June  9,  1879,  76  v.  165,  §  17;  B.  S.  1880;  April 
3,   1891,  88  v.  277;  April  26,    1898,  93  v.   319.) 


Exemption       of      foreign       corporations 
from  attachment. 

See  §§  148c',  148d. 

What  is  a  foreign  corporation. 

The  words  "  foreign  corporation "  do  not 
include  a  domestic  corporation. —  Boley  v. 
Ohio,  etc.,  Trust  Co.,  12  Oh.  St.  139   (1861). 


Domestic  corporation  may  be    nonresi- 
dent. 

A  domestic  corporation  may  be  proceeded 
against  under  this  section  on  the  grounds  that 
it.  is  a  nonresident  of  this  county. —  Champion 
Machine  Co.  v.  Huston,  24  Oh.  St.  503  (1874). 
Garnishment   of   railroad    companies. 

See  §  5465. 
Attachment   in   other   courts. 
See  §  5521. 


§  6499.  HOW  CORPORATION  SERVED  AS  GARNISHEE.—  If  the  garnishee  is 
a  person,  the  copy  of  the  order  and  notice  shall  be  served  upon  him  personally,  or  left 
at  his  usual  place  of  residence;  if  a  partnership  is  garnisheed  by  its  company  name, 
they  shall  be  left  at  its  usual  place  of  doing  business  or  be  served  personally  on  a 
member  of  said  partnership;  and  if  a  corporation,  they  shall  be  left  with  the  president 
or  other  principal  officer,  or  the  secretary,  cashier,  or  managing  agent  thereof;  and 
if  such  a  corporation  is  a  railroad  company,  they  may  be  left  with  any  regular  ticket 
or  freight  agent  thereof  in  the  county.  (May  4,  1885,  82  v.  261;  R.  S.  1880;  March 
14,  1853,  51  v.  179,  §  38.) 

LAW   GOV.    PRIV.   COR. —  40. 


PART    XXIX. 

QUO    WARRANTO. 

§  6760.  When  proceedings  in  quo  warranto  may  be  instituted  against  a  person. 

§  6761.  Where  action  of  quo  warranto  may  be  brought  against  a  corporation. 

§  6762.  Who  may  commence  action. 

§  6763.  Upon  whose  relation. 

§  6765.  Who  to  prosecute,  in  absence,  etc.,  of  prosecuting  attorney. 

§  6767.  All  claiming  same  office  or  franchise  to  be  made  defendants. 

§  6768.  Actions  in  quo  warranto ;  where  brought. 

§  6769.  Application  for  leave  to  file  petition,  and  notice  to  defendant. 

§  6770.  Issue  of  summons,  and  service. 

§  6771.  Service  by  publication. 

§  6772.  Pleading  after  petition. 

§  6773.  Court  may  extend  time  for  pleading. 

§  6774.  Judgment  where  office,   franchise,  etc.,  found  to  have  been  usurped. 

§  6775.  Judgment  where  a  director  of  a  corporation  found  to  have  been  illegally  elected. 

§  677G.  When  court  may  order  new  election  in  such  case. 

§  6777.  Rights  of  person  adjudged  to  be  entitled   to  an  office. 

§  6778.  Action  for  damages  against  person  ousted. 

§  6779.  How  judgment  of  court  enforced. 

§  6780.  Judgment  when  corporation  has  forfeited  its  rights. 

§  6781.  Appointment  of  trustees  when  corporation  dissolved. 

§  6782.  Power  and  duties  of  trustees. 

§  0783.  How  trustees  placed  in  possession. 

§  6784.  Judgment  for  costs. 

§  6785.  Proceedings  to  enforce  judgment  ordering  delivery  of  property. 

§  6786.  When  injunction  allowed  ancillary  to  proceedings  in  quo  warranto  against  banking 

association. 

§  6787.  Court  may  require  bank  directors  to  give  security,  etc. 

§  6788.  Directors  may  be  enjoined  from  borrowing  or  issuing  money,  etc. 
§  6789.         Limitations. 

§  6790.  Action  for  damages  against  officers,  etc.,  of  ousted  corporation. 

§  6791.  Provisions  of  this  chapter   cumulative  to  other  remedies. 

§  6792.  Disposition  o'f  fines. 

§  6793.  Actions  under  this  chapter  to  have  precedence,  etc. 

§  6760.  WHEN"  PROCEEDINGS  IN  QUO  WARRANTO  MAY  BE  INSTITUTED 
AGAINST  A  PERSON. —  A  civil  action  may  be  brought  in  the  name  of  the  state  — 

1.  Against  a  person  who  usurps,  intrudes  into,  or  unlawfully  holds  or  exercises, 
a  public  office,  civil  or  military,  or  a  franchise,  within  this  state,  or  an  office  in  a  cor- 
poration created  by  the  authority  of  this  state. 

2.  Against  a  public  officer,  civil  or  military,  who  does  or  suffers  an  act  which,  by 
the  provisions  of  law,  works  a  forfeiture  of  his  office. 

'     3.     Against  an  association  of  persons  who  act  as  a  corporation  within  this  state 
without  being  legally  incorporated.      (March  17,   1838,  36  v.   68,   §  1.) 


Power  of  court   of  equity. 

The  legality  of  the  election  of  persons  as 
trustees  of  a  company,  and  their  right  to  exer- 
cise the  powers  and  conduct  the  affairs  of  a 


company,  are  questions  which  cannot  be  judi- 
cially tested  in  a  court  of  equity,  but  fall 
within  the  jurisdiction  of  proceedings  in  quo 
warranto.—  Hullman  v.   Honcamp,  5   Oh.   St. 


[626] 


Qi  o  Warranto. 


627 


Action  Brought  When,    §  6761. 


237  (is.")."));  First,  etc.,  Society  v.  Smithers, 
12  Oh.  St.  248  (1861).  See  Moses  v.  Tomp- 
kins, 84  Ala.  613  (1887);  Bartholomew  v. 
Lutheran  Congregation,  35  Oh.  St.  567,  575 
(1880);  Messenger  v.  Wardens  of  Trinity 
Church,  6  W.  L.  B.  397  (1881);  Eooe  v.  Ball, 
9  0.  C.  C  054  (1893);  Earding  v.  Eichinger, 
57  Oh.  St.  371  (1898);  Reemelin  v.  Mosby, 
47  Oh.  St.  570   (1890). 

How  continuance  in  office  pleaded. 

Where  the  information  avers  continued 
usurpation  of  the  ollice  of  directors,  the 
answer  must  set  out  expressly  ihe  continu- 
ance of  every  qualification  necessary  to  the 
enjoyment  of  the  ollice.  It  is  not  sufficient  to 
state  the  qualifications  necessary  to  appoint- 
ment, and  rely  upon  the  presumption  of  their 
continuance. —  State  ex  rel.  v.  Beecher,  15  Oh. 
723    (1846). 

■When  terni   of   office  has   expired. 

A  proceeding  cannot  be  maintained  where 
the  term  of  office  has  expired  or  is  about  to 
expire. —  See  State  ex  rel.  v.  Ward,  17  Oh.  St. 
543,  54S  (1867);  State  ex  rel.  v.  Jacobs,  17 
Oh.  143  (1848). 

Resignation  no   defense. 

The  resignation  of  defendants,  after  they 
have  been  served  with  process  in  a  quo  war- 
ranto proceeding,  in  which  they  are  charged 
with  usurping  an  office,  constitutes  no  answer 
to  the  information.  Their  successors,  as  to 
the  unoccupied  term,  stand  in  their  shoes, 
and  will  be  bound  bv  the  judgment. —  State 
ex  rel.  v.  McOaniel,  22  Oh.  St."  354   (1872). 

Parties. 

Where  the  franchise  to  be  a  corporation  is 
intended  to  be  drawn  in  question,  the  proceed- 
ing should,  under  our  statute,  be  against  the 
individuals  who  usurp  such  franchise.— 
State  ex  rel.  v.  Cincinnati,  etc.,  Coke  Co..  18 
Oh.  St.  262  (1868).  See  State  ex  rel.  v.  Rob- 
inson, 12  W.  L.  B.  269  (1884). 


Where   parties   are   numerous. 

Where,  in  a  proceeding  in  quo  warranto, 
certain  named  persons,  and  others  said  to  he 
too  numerous  to  be  brought  upon  the  record, 
were  charged  with  usurping  the  franchise  of 
being  a  corporation,  and  the  defendants  named 
pleaa  thai  they  were  the  directors  of  the  cor- 
poration, without  denying  that  they  were  cor- 
porators therein,  and  averred  the  legs 
istence  of  the  corporation,  in  the  absence  of 
allegations  or  proof  to  the  contrary,  the  de- 
fendants are  to  be  regarded  as  claiming  to  be 
members  of  t  he  corporal  ion.  rel.  v. 

Sherman,  22  Oh.  St.  411   (1872). 

Proceedings  against  associations  acting 
as    corporation. 
To  bring  a  case  within   this  section   it    i-  not 

necessary  that  the  association  or  persons  com- 
posing it  claim  to  ad  as  a  corporation,  or 
assume  to  do  so;  it  is  sufficienl  if  the  acts  are 
such  as  appertain  to  corporations,  or  are  done 
after  the  manner  of  corporations.  Sti  I 
rel  v.  Ackerman,  51  Oh.  St.  163   (1894). 

Proceedings    against    foreign    insurance 
associations. 

The  authority  of  foreign  insurance  com- 
panies to  do  business  in  the  state  is  a  fran- 
chise,   the    right    to    exercise    which    may    he 

tested    under    this    section. —  State    ex    rel.    v. 
Ackerman,  51  Oh.   St.    L63    (1894). 

Burden    of    proof  —  right    to    open    and 
close. 

The  burden  is  on  the  defendants  to  show  by 
what  authority  they  claim  to  exercise  the 
jiouers  complained  of.  and  they  are  entitled 
to  open  and  close  the  argument. —  State  ex 
rel.  v.  Vanderbilt,  37  Oh.  St.  590,  631   (1882). 

Amendment    of    charter    while    proceed- 
ings  are   pending. 

See  State  ex  rel.  v.  Mutual,  etc.,  Ass'n.  20 
Oh.  St.  19  (1875). 


§  6761.  WHEN  ACTION  OF  QUO  WARRANTO  MAY  BE  BROUGHT  AGAINST 
A  CORPORATION.— A  like  action  may  be  brought  against  a  corporation: 

1st.  When  it  has  offended  against  a  provision  of  an  act  for  its  creation  or  renewal, 
or  any  act  altering  or  amending  such  acts. 

2nd.     When  it  has  forfeited  its  privileges  and  franchises  by  non-user. 

3d.  When  it  has  committed  or  omitted  an  act  which  amounts  to  a  surrender  of  its 
corporate  rights,  privileges  and  franchises. 

4th.  When  it  has  misused  a  franchise,  privilege  or  right  conferred  upon  it  by 
law,  or  when  it  claims  or  holds  by  contract  or  otherwise,  or  has  exercised  a  franchise, 
privilege  or  right  in  contravention  of  law.  (March  9,  1881,  78  v.  43;  R.  S.  1880; 
March  17,  1838,  36  v.  68,  §  8.) 

Scope  of  information.  I  and  cannot  be  extended  so  as  to  include  au- 

An  information  which  charges  a  corporation     thority    not   derivable    from    the    corporation, 

with    usurping    certain    franchises    by    acting     and  which  parties  exercise  in  their  own  right 

through   other  parties  calls   in  question  only  !  --State  ex  rel.  v.  Cincinnati,  23  Oh.  St.  445 
the    authority    of    the    usurping    corporation,  I   (1872). 


628 


Private  Corporations  in  Ohio. 


Action  Brought  When,   etc.,    §  6761. 


How  forfeiture   set  up. 

When  an  information  in  the  nature  of  a  quo 
warranto  is  filed  against  a  corporation  by  its 
corporate  name,  calling  upon  it  to  snow  by 
what  warrant  it  claims  to  be  a  corporation, 
and  to  exercise  corporate  powers,  and  the  de- 
fendant pleads  an  act  of  the  legislature  grant- 
ing to  it  the  franchise  named  in  the  informa- 
tion, it  is  competent  for  the  relator,  by  way  of 
replication,  to  aver  a  cause  of  forfeiture,  and 
to  pray  for  a  juagment  of  dissolution. —  State 
ex  rel.  v.  Pennsylvania,  etc.,  Canal  Co.,  23  Oh. 
St.  121  (1872)  ; State  ex  rel.  v.  Walnut  Hills, 
etc.,  Road  Co.,  13  0.  C.  C.  375  (1889);  State 
(  x  rel.  v.  Commercial  Bank,  10  Oh.  535,  541 
(1841).  See  State  ex  rel.  v.  American,  etc., 
College,  8  A.  L.  Rec.  422    (1879). 

State    cannot   deny    existence. 

Where  proceedings  are  instituted  by  the 
state  against  a  corporation,  by  its  corporate 
name,  charging  a  usurpation  of  certain  cor- 
porate franchises,  it  is  not  competent  for  the 
state  to  deny  the  corporate  existence  of  the 
defendant. —  State  ex  rel.  v.  Cincinnati,  etc., 
Coke  Co.,  18  Oh.  St.  262  (1868).  See  State 
ex  rel.  v.  Pennsylvania,  etc.,  Canal  Co.,  23  Oh. 
St.   121,  126    (1872). 

Allegation  of  corporate   existence. 

Where  the  action  is  against  a  corporation 
for  exercising  franchises  not  conferred  by  law, 
the  corporate  existence  of  the  defendant 
should  be  alleged.—  State  v.  Granville,  etc., 
Society,  11  Oh.   1,  9   (1841). 

Judgment  by   default. 

Judgment  by  default  cannot  be  taken  un- 
less the  petition  tenders  an  issue. —  See  State 
ex  rel.  v.  American,  etc.,  College,  8  A.  L.  Rec. 
422   (1879). 

Parties. 

A  proceeding  against  the  individuals  com- 
posing a  corporation  for  a  nonuser  or  misuser 
of  franchises  is  bad  on  demurrer.  The  action 
should  be  against  the  corporation  after  it 
conies  into  existence. —  State  ex  rel.  v.  Robin- 
son, 12  W.  L.  B.  269  (1884);  State  ex  rel.  v. 
Taylor,  25  Oh.  St.  279  (1874). 

Meaning   of  -word  "  privilege." 

See  State  ex  rel.  v.  Railway  Co.,  53  Oh.  St. 
189,  237   (1895). 

Failure  to  perfect  organization. 

A  corporation  must  organize  by  the  election 
of  directors,  or  otherwise  it  will  be  liable  to 
ouster  for  misuse  or  nonuse  of  its  franchise. 
—  See  State  ex  rel.  v.  Robinson,  12  W.  L.  B. 
269    (1884). 

Foreign   corporations. 

A  foreign  corporation  exercising  in  this 
state  franchises  and  privileges  without  au- 
thority of  law  may  be  ousted  therefrom  under 
this  section. —  State  ex  rel.  v.  Insurance  Co., 
49  Oh.  St.  440  (1892);  State  ex  rel.  v.  Life 
Ins.  Co.,  47  Oh.  St.  167  (1890). 


Same   subject. 

The  issuing  of  a  license  to  a  foreign  insur- 
ance company  is  not  a  bar  to  quo  warranto 
proceedings. —  State  ex  rel.  v.  Insurance  Co., 
49  Oh.   St.  440    (1892). 

Conducting   business   illegally. 

Where  the  manner  of  conducting  a  business, 
which  the  state's  charter  gives  power  to  a 
company  to  conduct  as  a  corporation,  is  in 
disregard  and  defiance  of  the  laws  of  the  state 
relating  to  that  business,  an  abuse  of  the 
power  results,  and  quo  warranto  may  prop- 
erly be  invoked  to  stop  the  abuse,  and  if  the 
abuse  is  flagrant,  to  oust  the  corporation. — 
State  ex  rel.  v.  Capital  Diary  Co.,  62  Oh.  St. 
350  (1900);  s.  c.  (U.  S.  Sup.  Ct.),  22  Sup.  Ct. 
Rep.  120. 

Criminal   laws   do   not   bar    action. 

The  mere  fact  that  the  criminal  laws  of  the 
state  provide  a  punishment  for  certain  acts. 
is  no  bar  to  a  proceeding  in  quo  warranto  to 
oust  a  corporation  engaged  in  such  acts. — 
State  ex  rel.  v.  Capital  Dairy  Co.,  62  Oh.  St. 
350    (1900). 

Misuse   by   excluding   directors. 

A  proceeding  under  this  section  may  be 
brought  to  prevent  the  corporation  from  ex- 
cluding legally  elected  directors  from  the  exer- 
cise of  their  duties,  and  in  such  a  proceeding 
the  persons  permitted  to  act  as  directors  are 
proper  parties. —  State  ex  rel.  v.  Ohio,  etc., 
Ry.  Co..  6  0.  C.  C.  412  (1S92).  See  State  ex 
rel.  v.  Smith,  6  O.  C.  C.  410    (1892). 

Res  adjudicata. 

A  judgment  rendered  by  an  inferior  court 
in  favor  of  a  defendant  corporation,  upon  an 
information  in  the  nature  of  a  quo  warranto, 
filed  by  a  county  prosecuting  attorney,  upon 
an  individual  relation,  is  not  a  bar  to  a  subse- 
quent* information  of  a  similar  character,  filed 
by  the  attorney -general,  in  the  exercise  of  the 
discretion  given  him  by  statute. —  See  State 
ex  rel.  v.  Cincinnati,  etc.,  Coke  Co.,  18  Oh.  St. 
262   (1S68). 

What   is   misuse   of   powers   of   railroad 
company. 

A  railroad  company  assumes  the  perform- 
ance of  duties  for  the  benefit  of  the  public 
generally.  When  such  corporation,  for  a 
period  of  five  years,  fails  to  construct  the  line 
of  railroad  named  in  its  charter,  but  condemns 
private  property  and  constructs  a  railroad 
wholly  unsuited  to  the  wants  of  the  public, 
and  for  the  benefit  only  of  the  coal  mines, 
owned  and  operated  by  the  principal  stock- 
holders of  such  railroad  company,  it  is  a  mis- 
use of  its  corporate  powers,  franchises  and 
privileges. —  State  v.  Railway  Co.,  40  Oh.  St. 
504  (1884).  See  State  ex  rel.  v.  Railroad  Co., 
50  Oh.  St.  239   (1893). 

Power  of  eminent  domain. 

A  proceeding  in  quo  warranto  is  the  only 
direct  method  of  testing  the  right  of  a  corpo- 


(  )io   Warranto. 


629 


Who  May  Bring,   etc,   §§  6762,   6763. 


ration  to  exorcise  the  power  of  eminent  do- 
main, and  such  proceeding  is  not  barred  by  a 
judgment  of  the  probate  courl    under  §   6420 

as  to  BUCh  right. —  State  ex  rel.  v.  Salem 
Water  Co.,  5  0.  C.  C.  58  (1890);  s.  c,  3  C.  D. 
30. 

Right     of     railroad     company     to     hold 
land   cannot   be   tested. 

The  object  of  quo  warranto  proceedings  is 
not  to  divest  the  company  of  its  title  to  prop 
erty,  unless  acquired  by  a  usurpation  of  the 
proprietary  rights  of  the  state,  and  a  prayer 
that  the  company  he  ousted  from  the  right  to 
use  the  lands  of  the  relator  for  a  private  pur- 
pose is,  in  effect,  a  prayer  for  the  possession 
of  the  lands,  and  not.  within  the  purpose  of  a 
proceeding  in  quo  warranto. —  Stale  ex  rel.  v. 
Railroad  Co.,  50  Oh.  St.  239    (1893). 

Power     of     railroad     company     to     hold 
canal   lands. 

An  action  in  quo  warranto  will  lie  against  a 
railroad  corporation  to  contest  its  claim  to 
exercise  a  right  or  privilege  to  or  in  the  canal 
lands  of  the  state. —  State  ex  rel.  v.  Railway 
Co.,  53  Oh.  St.   189   (1S95). 

Discrimination  in  freight  rates. 

A  company  opera/ting  as  a  common  carrier 
has    no    right    to    discriminate    in    its    freight 


rates  between  Bhippers,  and  where  Bueb  a  com- 
pany, for  instance,  fixes  a  rate  of  freight  for 
carrying  petroleum  oil  in  tank  cars,  substan- 
tially lower  than  it-  rate  for  transporting  it 
in   barrels  in  carload  lots,   il  ng  a 

franchise,  privilege  or  right  in  contravention 
of  law  under  thia  section.  State  ex  rel.  v. 
< lincinnati,  etc.,  Ry.  Co.,  17  Oh.  St.  i:;o 

Engagement  in  interstate  commerce  no 

defense. 

A  railroad  company  misusing  its  franchise, 
privileges  or  right  is  subject  to  a  procei 
under  this  section,  though  it  may  be  eng 
in  interstate  commerce  and  the  misuse]  or 
usurpation  to  be  corrected  relate,  to  and  con- 
cerns that  traffic.  State  ex  rel.  v.  Cincinnati, 
etc.,  Ry.  Co.,   17  Oh.  St.  130  I  1890). 

Violation  of  trust  act. 

See    93    v.    143,    §    2. 

Franchise    of    street    railroad    company. 

See  state  ex  rel.  v.  Bast  Cleveland  R.  l:. 
Co.,  6  0.  C.  C.  318   I  1891). 

Franchises   of  gas  companies. 

See  State  ex  rel.  v.  Cincinnati,  etc.  Coke 
Co.,  18  Oh.  St.  262  I  1868  3tati  ex  rel.  v. 
[ronton  Gas  Co.,  37  Oh.  St.  45   (1881). 


§  6762.  WHO  MAY  COMMENCE  ACTION.—  The  attorney-general,  or  a  prose- 
cuting attorney,  when  directed  by  the  governor,  supreme  court,  or  general  assembly, 
shall  commence  any  such  action;  and  when,  upon  complaint,  or  otherwise,  he  has  good 
reason  to  believe  that  any  case  specified  in  (the  preceding  section)  can  be  established 
by  proof,  he  shall  commence  an  action.  (May  1,  1852,  50  v.  267,  §§  9,  10,  11,  12; 
March  17,  1838,  36  v.  68,  §§   1,  8.) 

Power    of   judges   of   supreme    court. 

The  judges  of  the  supreme  court,  in  their 
private  capacity,  have  no  power  to  direct  pro- 
ceedings in  quo  warranto. —  Ohio  R.  R.  Co.  v. 
State,  10  Oh.  360  (1841). 

When    court    should    order    proceedings 
brought. 

The  power  of  the  supreme  court  should,  as 
a  general  rule,  be  exercised  only  w  hen  some- 

§  6763.  UPON  WHOSE  RELATION.—  Such  officer  may,  upon  his  own  relation, 
bring  any  such  action,  or  he  may,  on  leave  of  the  court,  or  a  judge  thereof  in  vacation, 
bring  the  action  upon  the  relation  of  another  person;  and  if  the  action  be  brought 
under  the  first  subdivision  of  section  sixty-seven  hundred  and  sixty,  he  may  require 
security  for  costs  to  be  given  as  in  other  cases.      (March  17,  1838,  36  v.  68.  §   1.) 

Quo   warranto    can   only   be    brought    in 
the    name   of   the   state. 
See    Railway  Co.  v.  State.  49   Oh.   St.   668, 

681   (1892). 


thing   relating  to   the    court,   or   its   bu- 
renders    it.    necessary    or    advisable. —  Tl 
son  v.  Watson,  4S  Oh.  St.  552    (1891);    : 
ex  rel.  V.    Taylor,  50  Oh.  St.  120  (1893). 

Power   of  prosecuting   attorney. 

See  State  ex  rel.  v.  Buckland,  5  Oh.  St.  216 
(1855). 


Discretion   of   attorney-general. 

A  writ  of  mandamus  will  not  be  awarded 
to  compel  the  attorney-general  to  comnn  nee 
proceedings.  An  application  to  him  to  bring 
the  action  is  addressed  to  his  discretion,  the 
exercise  of  which  the  court  will  not  control. — 
Thompson  v.  Watson,  48  Oh.  St.  552  (1891). 
See  In  re  Bank,  5  Oh.  250  (1831). 

When  leave  necessary. 

A  suit  cannot  be  brought  on  the  relation  of 
an  individual  without  leave  of  court. —  State 
ex  rel.  v.  Smith,  6  O.  C.  C.  410   (1892). 


Individual    cannot    bring   action. 

An  action  in  quo  warranto  to  test  the  right 
to  hold  position  of  director  of  a  corporation 
cannot  be  brought  by  persons  claiming  the 
place  on  their  own  relation. —  Crawford  v. 
State.  5-2  Oh.  St.  G2    (1894). 


630 


Private  Corporations  in  Ohio. 


Who  May  Bring,  etc. —  Service  in,  etc.,   §§   6765-6711. 


§  6765.  WHO  TO  PROSECUTE,  IN  ABSENCE,  ETC.,  OF  PROSECUTING 
ATTORNEY. —  When  the  office  of  prosecuting  attorney  is  vacant,  or  when  the  prose- 
cuting attorney  is  absent,  interested  in  the  action,  or  disabled  from  any  cause,  the 
court,  or  a  judge  thereof  in  vacation,  may  direct  or  permit  any  member  of  the  bar  to 
act  in  his  place  to  bring  and  prosecute  the  action.     (March  17,  1838,  36  v.  68,  §  23.) 

§   6767.     ALL    CLAIMING    SAME    OFFICE    OR    FRANCHISE    TO    BE    MADE 

DEFENDANTS. —  All  persons  who  claim  to  be  entitled  to  the  same  office  or  franchise 
may  be  made  defendants  in  the  same  action,  to  try  their  respective  rights  to  such 
office  or  franchise.     (March  17,  1838,  36  v.  68,  §  7.) 


§  6768.  ACTIONS  IN  QUO  WARRANTO:  WHERE  BROUGHT.— An  action 
under  this  chapter  can  be  brought  only  in  the  supreme  court,  or  in  the  circuit  court  of 
the  county  in  which  the  defendant,  or  one  of  the  defendants,  resides  or  is  found,  or, 
when  the  defendant  is  a  corporation,  in  the  county  in  which  it  is  situated,  or  has  a 
place  of  business;  but  when  the  attorney-general  files  the  petition,  the  action  may  be 
brought  in  the  circuit  court  of  Franklin  county.  (February  7,  1885,  82  v.  16,  39; 
R.  S.  1880;  May  1,  1852,  50  v.  267,  §  13;  March  17,  1838,  36  v.  68,  §  1.) 


Venue   must  be  pleaded. 

The  petition  must  allege  the  location  of  the 
place  of  business  of  the  corporation. —  See 
State  v.  Granville,  etc.,  Society,  11  Oh.  1,  9 
(1841). 


Jurisdiction   of   circuit   court. 

See  State  ex  rel.  v.  Buckland,  5  Oh.  St.  216 
( 1855)  ;  State  ex  rel.  v.  Smith,  6  0.  C.  C.  410 

(1892). 


§  6769.  APPLICATION  FOR  LEAVE  TO  FILE  PETITION,  AND  NOTICE  TO 
DEFENDANT. —  Upon  application  for  leave  to  file  a  petition,  the  court  or  judge  may 
direct  notice  thereof  to  be  given  to  the  defendant  previous  to  granting  such  leave,  and 
may  hear  the  defendant  in  opposition  thereto;  and  if  leave  be  granted,  an  entry 
thereof  shall  be  made  on  the  journal,  or,  the  fact  shall  be  indorsed  by  the  judge  on  the 
petition,  which  shall  then  be  filed.     (March  17,  1838,  36  v.  68,  §  9.) 


Leave    may   be    granted    at    chambers. 

A  judge  of  the  court  may,  in  the  exercise  of 
chamber  powers,  grant  leave  to  file  an  infor- 


mation in  the  nature  of  a  quo  warranto. — 
State  ex  rel.  v.  Buckland,  5  Oh.  St.  216 
(1855). 


§  6770.  ISSUE  OF  SUMMONS,  AND  SERVICE.— When  the  petition  is  filed 
without  leave  and  notice,  a  summons  shall  issue,  and  be  served  as  in  other  cases; 
and  such  summons  may  be  sent  to  and  returned  by  the  sheriff  of  any  county  by  mail, 
who  shall  be  entitled  to  the  same  fees  thereon  as  if  it  had  been  issued  and  returned 
in  his  own  county.     (March  17,  1838,  36  v.  68,  §  2.) 


Tir^e  for  answer. 

Where  a  petition  is  filed  without  leave  a 
summons  which  fixes  answer  day  as  the  third 
Saturday   after   the   return  day   is   bad   on   a 


motion  to  quash.  Under  §  6772  the  time  for 
answer  is  within  thirty  days  after  the  return 
of  the  summons.—  State  ex  rel.  v.  Robinson, 
11   W.  L.  B.  294    (1884). 


§  6771.  SERVICE  BY  PUBLICATION. —  When  a  summons  is  returned  not  served 
because  the  defendant,  or  its  officers  or  office  cannot  be  found  within  the  county,  the 
clerk  shall  publish,  for  four  consecutive  weeks,  in  a  newspaper  published  and  of  gen- 
eral circulation  in  the  county,  and  if  there  is  no  such  newspaper,  then  in  a  newspaper 
printed  in  this  state,  and  of  general  circulation  in  such  county,  a  notice,  setting  forth 
the  filing  and  substance  of  the  petition;  and  upon  proof  of  such  publication,  the 
default  of  the  defendant  may  be  entered,  and  judgment  rendered  thereon  as  if  the 
defendant  had  been  served  with  summons.      (March  17,  1838,  36  v.  68,   §  13.) 


Quo  Warranto. 


631 


Pleadings  and  Judgment  in,    S$  6772-6776. 


Publication  not  authorized  unless  court 
has  jurisdiction. 

State  ex  rel.  v.  Smith,  (i  0.  C.  C.  410  (1892). 

"When    nonresidents    niay    he    served    hy 
publication. 

In  a  quo  warranto  proceeding  against  a  cor- 


poration,  where  certain  nonresident  directors 
are  proper  parties,  they  may  be  Berved  under 
this  seel  ion.  •  State  ex  rel.  \ .  Ohio,  el  Ry. 
Co.,  6  i).  ('.  C.  412,  41. j  (1892). 


§  6772.  PLEADING  AFTER  PETITION. —  The  defendant  may  demur,  or  file  an 
answer,  which  may  contain  as  many  several  defenses  as  he  has,  within  thirty  days 
after  the  filing  of  the  petition,  if  it  was  filed  on  leave  and  notice,  or  after  the  return 
day  of  the  summons;  and  the  plaintiff  may  file  a  demurrer  or  a  reply  to  such  answer 
within  thirty  days  thereafter.      (March  17,    1838,  36  v.  68,   §    12;  R.   S.   1880.) 


Rules     of     pleading  —  not     affected     by 
Code. 

It  was  not  intended  to  substantially  cnange 
the  rules  of  pleading  by  bringing  proceedings 
in  quo  warranto  under  the  code. —  State  ex 
rel.  v.  Walnut  Hills  Road  Co.,  i3  0.  C.  C.  375 
(1889).  See  State  ex  rel.  v.  Sullivan,  15  0. 
C.  C.  477,  481   (1897). 

Pleading. 

The  pleadings  in  quo  warranto  are  not  gov- 
erned by  the  code,  and  a  defendant  may  plead 
double. —  State  ex  rel.  v.  McDaniel,  22  Oh.  St. 
354   (1872). 

Pleadings. 

The  common-law  system,  and  not  that  pre- 
scribed by  the  Code  of  Civil  Procedure,  is  to 

§  6773.  COURT  MAY  EXTEND  TIME  FOR  PLEADING.—  An  order  may  be 
made  by  the  court,  or  a  judge  thereof,  extending  the  time  within  which  any  plead- 
ing may  be  filed;  but  such  order  shall  not  work  a  continuance  of  the  case.  (March 
17,   1838,   36  v.   68,   §    14.) 

§  6774.  JUDGMENT  WHERE  OFFICE,  FRANCHISE,  ETC.,  FOUND  TO  HAVE 
BEEN  USURPED.— When  a  defendant  is  found  guilty  of  usurping,  intruding  into, 
or  unlawfully  holding  or  exercising,  an  office,  franchise,  or  privilege,  judgment  shall 
be  rendered  that  such  defendant  be  ousted  and  altogether  excluded  therefrom,  and 
that  the  relator  recover  his  costs'.      (March  17,  1838,  36  v.  68,  §   15.) 


be  followed   in   proceedings   in   quo  warn 
and.  therefore,  new  matter  se1  up  in  a  replica 
tion  in  quo  warranto,  in  confession  and  avoid- 
ance of  the  plea,  is  taken  as  confessed,  if  nol 

denied. —  State  ex   rel.   v.   Taylor,  25   Oh.   St. 
279  (1874). 

What  matter   is   material   as   defense. 

The  inquiry  in  proceedings  in  quo  warranto 
is  limited  to  the  charges  in  the  information, 
and  matter  set  up  by  way  of  plea  is  only 
material  in  so  far  as  it  shows  wan  ant  in  law 
for  the  exercise  of  the  authority  alleged  in  the 
information  to  be  usurped.— State  ex  rel.  v. 
Cincinnati,  23  Oh.  St.  445  (1872).  See  State 
ex  rel.  v.  Greenville,  etc.,  Ass'n,  29  Oh.  St.  92, 
101  (1876). 


§  6775.  JUDGMENT  WHERE  DIRECTOR  OF  A  CORPORATION  FOUND  TO 
HAVE  BEEN  ILLEGALLY  ELECTED.—  When  the  action  is  against  a  director  of  a 
corporation,  and  the  court  find  that  at  his  election,  either  illegal  votes  were  received, 
or  legal  votes  were  rejected,  or  both,  sufficient  to  change  the  result,  judgment  may  be 
rendered  that  the  defendant  be  ousted,  and  of  induction  in  favor  of  the  person  who 
was  entitled  to  be  declared  elected  at  such  election.  (April  28,  1873,  70  v.  176.  §  1; 
R.   S.    1880.) 


"Where  election   set   aside. 

Where  persons  claiming  office  as  directors 
are  ousted  because  of  unfair  election,  their 
predecessors  will  be  restored  to  office  to  con- 
tinue  in   the   same   until  their  successors  are 


elected   and   qualified. —  State   ex   rel.   v.  Bon- 
nell.  35  Oh.  St.   10.   17    (1878) 

See    State    ex    rel.    v.    McDaniel.   22    Oh.    St. 
354   (1872). 


§  6776.  WHEN  COURT  MAY  ORDER  NEW  ELECTION  IN  SUCH  CASE.— In 
a  case  named  in  the  last  section,  the  court  may  order  a  new  election  to  be  held,  at  a 
time  and  place,  and  by  judges,  appointed  by  the  court,  notice  of  which  election,  and 


632 


Private  Corporations  in  Ohio. 


Judgment  in  Quo  Warranto,  etc.,  §§  6777-6780. 


naming  the  judges,  shall  be  given  for  the  time  and  in  the  manner  provided  by  law 
for  notice  of  elections  of  directors  of  such  corporations;  the  order  of  the  court  shall 
become  obligatory  upon  the  corporation  and  its  officers  when  a  duly  certified  copy 
thereof  is  served  upon  its  secretary  personally,  or  left  at  its  principal  office;  and  the 
court  may  enforce  its  order  by  attachment,  or  in  any  other  manner  it  deems  necessary. 
(April  28,  1873,  70  v.   176,   §  2;  R.  S.   1880.) 

§    6777.     RIGHTS  OF  PERSONS  ADJUDGED  TO  BE  ENTITLED  TO  AN  OFEICE. 

If  judgment  be  rendered  in  favor  of  the  person  averred  to  be  entitled  to  an  office, 

he  may,  after  taking  the  oath  of  office,  and  executing  any  official  bond  required  by 
law,  take  upon  him  the  execution  of  the  office;  and  he  shall  immediately  thereafter 
demand  of  the  defendant  all  the  books  and  papers  in  his  custody  or  within  his  power 
appertaining  to  the  office  from  which  he  has  been  ousted.  (March  17,  1838,  36  v. 
68,  §  4.) 

§  6778.  ACTION  FOR  DAMAGES  AGAINST  PERSON  OUSTED.—  Such  person 
may,  at  any  time  within  one  year  after  the  date  of  such  judgment,  bring  an  action 
against  the  party  ousted,  and  recover  the  damages  he  sustained  by  reason  of  such 
usurpation.     (March  17,  1838,  36  v.  68,  §  6.) 

Attorney  fees  and  expenses  in  prosecuting  quo  warranto  not  recoverable. 

See  Palmer  v.  Darby,  2  N.  P.  401   (1895). 

§  6779.  HOW  JUDGMENT  OF  COURT  ENFORCED.—  If  such  defendant  refuse 
or  neglect  to  deliver  over  any  such  book  or  paper  pursuant  to  such  demand,  he  shall 
be  deemed  guilty  of  contempt  of  court,  and  shall  be  fined  in  any  sum  not  exceeding 
ten  thousand  dollars,  and  imprisoned  in  the  jail  of  the  county  until  he  complies  with 
the  order  of  the  court,  or  is  otherwise  discharged  by  due  course  of  law.  (March  17, 
1838,  36  v.  68,  §  5.) 

§  6780.  JUDGMENT  WHEN  CORPORATION  HAS  FORFEITED  ITS  RIGHTS. 
—  When  in  any  such  action,  it  is  found  and  adjudged  that  a  corporation  has,  by  an 
act  done  or  omitted,  surrendered  or  forfeited  its  corporate  rights,  privileges,  and 
franchises,  or  has  not  used  the  same  during  a  term  of  five  years,  judgment  shall  be 
entered  that  it  be  ousted  and  excluded  therefrom,  and  that  it  be  dissolved;  and  when 
it  is  found  and  adjudged  that  a  corporation  has  offended  in  any  matter  or  manner 
which  does  not  work  such  surrender  or  forfeiture,  or  has  misused  a  franchise,  or  exer- 
cised a  power  not  conferred  by  law,  judgment  shall  be  entered  that  it  be  ousted  from 
the  continuance  of  such  offense,  or  the  exercise  of  such  power.  (March  12,  1845, 
43  v.  94,   §   1.) 


When  forfeitures  decreed. 

A  corporation  may  forfeit  its  charter 
through  neglect  or  abuse  of  its  franchises; 
but  a  forfeiture  is  not  allowed,  except  under 
express  limitations  of  the  charter,  unless  a 
plain  abuse  or  neglect  of  power,  by  which  the 
corporation  fails  to  fulfill  the  design  of  its 
creation,  is  shown. —  State  ex  rel.  v.  Commer- 
cial Bank,  10  Oh.  535  (1841);  State  ex  rel. 
v.  Fanners'  College,  32  Oh.  St.  487   (1877). 

■When   court  has   no   discretion. 

Where  a  corporation  has  been  guilty  of  an 
act  which  by  its  charter  is  made  a  cause  for 
the  forfeiture  of  its  franchises,  and  the  state, 
on  the  relation  of  the  attorney-general,  de- 
mands a  judgment  of  dissolution  on  account 
thereof,  the  court  has  no  discretion  to  refuse 
such  judgment  upon  the  ground  that  public 
or  private  interest  would  be  better  subserved 
by  preserving  the  existence  of  the  corporation. 


— ■  State  ex  rel.  v.  Pennsylvania,  etc.,  Canal 
Co.,  23  Oh.  St.  121  (1872);  State  ex  rel.  v. 
Oberlin,  etc.,  Assn.  35  Oh.  St.  258  (1897). 
See  State  ex  rel.  v.  Central  Ohio,  etc.,  Ass'n, 
29  Oh.  St.  399  (1876). 

Discretion  of  court. 

Except  in  the  cases  mentioned  in  the  pre- 
ceding note,  the  court  is  vested  with  a  discre- 
tion to  determine  whether  judgment  of  ouster 
of  the  franchise  to  be  a  corporation  shall  be 
rendered,  or  whether  the  corporation  shall  be 
ousted  from  the  exercise  of  the  powers  ille- 
gally assumed. —  State  ex  rel.  v.  Oberlin,  etc., 
Ass'n,  35  Oh.  St.  258  (1879);  State  ex  rel.  v. 
Peoples,  etc.,  Ass'n,  42  Oh.  St.  579    (1885). 

Effect   of   ouster   on   third   persons. 

It  is  not  competent  for  the  court,  in  a  quo 
warranto  proceeding  ousting  a  corporation  of 
the  right  to  be  a  body  corporate,  to  consider 


Quo  Warranto. 


633 


Judgment  in,  etc.,  S5  6781   6785. 


or  determine  the  rights  or  liabilities  of  third 
parties  who  have  acquired  such  rights  <>r  lia- 
bilities in  their  dealings  with  such  acting 
corporation.  The  courl  has  exhausted  its 
jurisdiction  when  it  has  adjudged  that  the 
corporation  be  ousted;  and  such  judgment  is 
not  retroactive,  and  does  not  affecl  the  rights 
and  liabilities  of  those  who  have  dealt  with 
the  corporation. —  Society  Perun  v.  Cleve 
land,  43  Oh.  St.  481   (1885). 

No   forfeiture   ■without   judgment. 

There  can  be  no  forfeiture  without  judgmenl 
in  quo  warranto,  and  its  property  is  not  lost 


I'.v    mere  noiiuM-r.       Webb   v.   Mol<  r,   8  < > 

i  1838).     Se,-   State   ex    rel.    \.    Bryce,    7    Oh. 
(pt.  2)  82  (1836). 

Collateral   attack. 

A    forfeiture    can    only    be    claimed    by    the 
state,  and  a  corporation  is  no1  Bubjed  to  col- 
lateral attack   for  misuser  or   aonuser  of  its 
franchises.      \\  ebb  \ .  Moler,  8  <  >h.  548  I  I  - 
Toledo,  etc.,  I.' v.  <  to.  v.  Toledo,  etc.,  I: . .  I 
0.  C.  C  362,  391    i  1892)  ;    Benninger  v.   Gall, 
1    C.    S.    C.    331     (1871);    Finnell    v.    Bui 
llan.lv.  202    i  1856). 


§  6781.  APPOINTMENT  OF  TRUSTEES  WHEN  CORPORATION  DISSOLVED. 
—  The  court  rendering  a  judgment  dissolving  a  corporation  shall  appoint  trustees  of 
the  creditors  and  stockholders  of  the  corporation,  who,  after  giving  an  undertaking, 
payable  to  the  state  of  Ohio,  in  such  sum  and  with  such  sureties  as  the  court  may 
designate  and  approve,  conditioned  that  they  will  faithfully  discharge  their  trust, 
and  properly  pay  and  apply  all  money  that  may  come  into  their  hands,  shall  have 
power  to  settle  the  affairs  of  the  corporation,  collect  and  pay  outstanding  debts,  and 
divide  among  the  stockholders  the  money  and  other  property  which  remain  after 
the  payment  of  debts  and  necessary  expenses.     (March  12,   1845,  43  v.  94,   §  2.) 


Effect  of   ouster   on  property. 

Where  a  decree  of  ouster  is  entered  against 
a  canal  company  as  to  its  right  to  be  a  cor- 
poration and  its  right  to  operate  a  canal. 
there  is  a  forfeiture  of  the  easement  of  the 
canal  company,  and  the  land  reverts  to  the 
original   owner. —  New   York,   etc,   R.   R.   Co. 


v.   Parmeleo,   1   ().  ( !.  (.  239    (1885);   affirmed 
23  W.  L.  B.  108. 

When  trustees   appointed. 
Where  a  corporation  i-  ousted  of  it-  right 

to   be   a  corporation,    the   eourl    iim-1    appoint 
trustees. —  See  State  ex  rel.  v.  Oberlin, 
Ass'n,  35  Oh.  St.  j:»s,  204  (1879). 


§  6782.  POWER  AND  DUTIES  OF  TRUSTEES.  —  The  trustees  shall  forthwith 
demand  all  money,  property,  books,  deeds,  notes,  bills,  obligations,  and  papers  of 
every  description  within  the  custody,  power,  or  control  of  the  officers  of  the  corpora- 
tion, or  either  of  them,  belonging  to  the  corporation,  or  in  any  wise  necessary  for  the 
settlement  of  its  affairs,  or  for  the  discharge  of  its  debts  and  liabilities;  and  they 
may  sue  for  and  recover  the  demands  and  property  of  the  corporation,  and  shall  be 
jointly  and  severally  liable  to  the  creditors  and  stockholders,  to  the  extent  of  its 
property  and  effects  which  come  into  their  hands.     (March  17,  1838,  36  v.  68,  g   19.) 

§  6783.  HOW  TRUSTEES  PLACED  IN  POSSESSION.—  An  officer  of  such  corpo- 
ration who  refuses  or  neglects  to  deliver  over  any  such  money,  or  other  things,  pur- 
suant to  such  demand,  shall  be  deemed  guilty  of  a  contempt  of  court,  and  shall  be 
fined  not  exceeding  ten  thousand  dollars,  and  imprisoned  in  the  jail  of  the  proper 
county  until  he  complies  with  the  order  of  the  court,  or  is  otherwise  discharged  by 
due  course  of  law;  and  he  shall  be  liable  to  the  trustees  for  the  value  of  all  money. 
or  other  things,  so  refused  or  neglected  to  be  surrendered,  together  with  all  damages 
that  have  been  sustained  by  the  stockholders  and  creditors  of  the  corporation,  or  any 
of  them,  in  consequence  of  such  neglect  or  refusal.     (March  17,  1838,  36  v.  68,  g  20.) 

§  6784.  JUDGMENT  FOR  COSTS.— If  judgment  be  rendered  against  a  corpora- 
tion, or  against  a  person  claiming  to  be  a  corporation,  the  court  may  render  judgment 
for  costs  against  the  directors  or  other  officers  of  the  corporation,  or  against  a  person 
claiming  to  be  a  corporation.     (March   17,    1838,  36  v.  68,    §    17.) 

§  6785.  PROCEEDINGS  TO  ENFORCE  JUDGMENT  ORDERING  DELIVERY 
OF  PROPERTY. —  In  all  actions  under  this  chapter,   when  the  judgment  is  against 


634  Private  Corporations  in  Ohio. 


Judgment  in  Quo  Warranto,  etc.,  §§   6786-6789. 


the  defendant  the  court  may  make  an  order  directing  the  defendant  forthwith  to 
deliver  over  the  books,  papers,  property,  money,  deeds,  notes,  bills,  and  obligations, 
to  tne  persons  entitled  thereto,  or  the  trustees  appointed  to  receive  the  same,  and  may 
send  a  transcript  of  the  proceedings,  including  a  copy  of  such  order,  to  the  court  of 
common  pleas  of  the  proper  county,  with  a  special  mandate  directing  such  court  to 
carry  the  same  into  effect;  upon  complaint  being  made  upon  affidavit  to  such  court 
of  common  pleas,  of  a  neglect  or  refusal  to  comply  with  such  order,  that  court  shall 
direct  an  attachment,  returnable  forthwith,  to  issue  for  the  defendant,  who  may  be 
required  to  answer  under  oath  touching  the  premises;  and  if  it  appear  that  the 
defendant  so  neglects  or  refuses,  such  court  shall  render  judgment  of  fine  or  impris- 
onment, or  both,  as  the  court  making  the  order  might  have  rendered.  (March  17, 
1838,  36  v.  68,  §  21.) 

§  6786.  WHEN  INJUNCTIONS  ALLOWED  ANCILLARY  TO  PROCEEDINGS 
IN  QUO  WARRANTO  AGAINST  BANKING  ASSOCIATION.—  Any  stockholder,  or 
stockholders,  owning  not  less  than  one-fourth  of  the  capital  stock  of  any  banking 
association  actually  paid  in,  or  entitled  to  the  beneficial  interest  therein,  may  have, 
pending  proceedings  in  quo  warranto  against  such  corporation,  an  injunction  restrain- 
ing the  directors  thereof  from  making  any  disposition  of  the  assets  of  such  corpora- 
tion prejudicial  to  the  interests  of  such  stockholder  or  stockholders,  or  inconsistent 

with  their  duties  as  directors.     (March  20,  1860,  57  v.  50,  §  2.) 

i 

§  6787.  COURT  MAY  REQUIRE  BANK  DIRECTORS  TO  GIVE  SECURITY, 
ETC. —  The  court,  or  a  judge  thereof  in  vacation,  may,  upon  satisfactory  proof  that 
the  'directors  of  such  corporation  have  violated,  or  are  about  to  violate,  any  of  the  fran- 
chises thereof,  require  them  to  give  security  to  the  stockholders  thereof,  to  the  satis- 
faction of  the  court  or  judge,  for  the  proper  discharge  of  their  duties,  and  for  the 
proper  management  and  security  of  the  assets;  and  such  court  or  judge  may  enjoin 
such  directors  from  paying  out  or  issuing  the  notes  of  circulation  of  such  bank,  and 
from  incurring  any  additional  liabilities  except  for  the  payment  of  the  necessary 
services  of  the  officers  and  employes  of  such  Danking  association,  the  amount  of 
which,  while  such  proceedings  are  pending,  shall  be  under  the  control  of  the  court. 
(March  20,  1860,  57  v.  50,  §  2.) 

§  6788.  DIRECTORS  MAY  BE  ENJOINED  FROM  BORROWING  OR  ISSUING 
MONEY,  ETC. —  Such  court  or  judge  may,  on  petition,  enjoin  such  directors,  from 
borrowing  or  issuing,  either  directly  or  indirectly,  any  of  the  money  or  assets  of  such 
bank  for  their  individual  benefit,  while  such  proceedings  are  pending.  (March  20, 
1860,  57  v.   50,  §  3.) 

§  6789.  LIMITATIONS. —  Nothing  in  this  chapter  contained  shall  authorize  an 
action  against  a  corporation  for  forfeiture  of  charter,  unless  the  same  be  commenced 
within  five  years  after  the  act  complained  of  was  done  or  committed;  nor  shall  an 
action  be  brought  against  a  corporation  for  the  exercise  of  a  power  or  franchise  under 
its  charter,  which  it  has  used  and  exercised  for  a  term  of  twenty  years;  nor  shall  an 
action  be  brought  against  an  officer  to  oust  him  from  his  office,  unless  within  three 
years  after  the  cause  of  such  ouster,  or  the  right  to  hold  the  office,  arose.  (March  17, 
1838,   36   v.   68,    §   26.) 

Ouster  from  exercise  of  franchise.  i  Forfeiture  for  misuse. 

A  corporation  may  be  ousted  in  quo  war-        The  ouster  of  a  company  from  the  right  to 


ranto  from  the  exercise  of  a  power  or  fran- 
chise, not  conferred  by  law,  where  the  same 
has  not  been  exercised  for  twenty  years. — 
State  ex  rel.  v.  Standard  Oil  Co.,  49  Oh.  St. 
137  (1892);  State  v.  Miami  Exporting  Co.,  11 
Oh.  126   (1841). 


be  a  corporation,  for  the  misuse  of  a  franchise, 
is  limited  for  five  years  from  the  commission 
of  the  offense. —  State  ex  rel.  v.  Railroad  Co., 
50  Oh.  St.  239  (1893);  State  ex  rel.  v.  Stand- 
ard Oil  Co.,  49  Oh.  St.  137   (1S92). 


Quo  Warranto. 


635 


Damages  —  Precedence  of  Action,  etc.,   $5  6790  6793. 


Use   of   franchise  —  exclusive. 

The  use  of  streets  by  a  gas  company  for 
twenty  years  does  not  bar  an  inquiry  into  the 
right  of  the  defendant  1<>  (heir  exclusive  use. 
—  State  ex  id.  v.  Cincinnati,  etc.,  Coke  Co.,  18 
Oh.  St.  262  (1866). 

Limitation  as  to  officers. 

The  statute  commences  to  run  from  the 
time  the  cause  of  ouster  anise,  bul  if  the 
statute  has  run,  the  corporation  may  remove 
such  officers  and  make  a  new  case. —  See 
State  ex  rel.  v.  Beecher,  16  Oh.  358   (1847). 

"When  statute  runs  against  state. 

Neither  the  five  years  nor  the  twenty  years 
limitation  prescribed  in  this  section  bars  an 
action  in  quo  warranto  where  its  object  is  to 
oust  a  corporation  from  an  unwarranted  claim 
to  a  right  or  privilege  in  lands  belonging  to 
the  state. —  State  ex  rel.  v.  Railway  Co.,  53 
Oh.  St.  189    (1895). 


No         distinctions         between         actions 
brought       by       attorney-general       and 
prosecuting  attorney. 
Sec  Slate  e\   rel.  v.  Standard  Oil  Co.,  49  Oh. 

St.   137,  L88  (1892). 

A  suit  ordered  by  legislature  is  subject 
to  the  statute. 

See  State  v.  Granville,  etc.,  Society,  II  Oh. 
1,  20  (1841). 

How  statute  pleaded. 

The  plea  setting  up  the  statute,  taken  at  a 
whole,  lini-i  -how  the  user  of  the  franchises 
in  question  for  twenty  year-,  uol  by  the  pei 
formance  of  a  single  act.  bul  by  a  varietj  of 
acts  which  taken  together  constitute  the  ex- 
ercise of  the  franchise.  See  state  v.  Gran- 
ville, etc.,  Society.    11   Oh.   1.   L9   (1841). 

When  proceeding  commenced. 

A  proceeding  is  commenced  when  the  infor- 
mation is  tiled,  not  when  an  application  IS 
made. —  See  State  v.  Granville,  etc.,  Society, 
11   Oh.   1,  20    (1841). 


§  6790.  ACTION  FOR  DAMAGES  AGAINST  OFFICERS,  ETC.,  OF  OUSTED 
CORPORATION. —  When  judgment  of  forfeiture  and  ouster  is  rendered  against  a 
corporation  because  of  any  misconduct  of  the  officers  or  directors  thereof,  a  person 
injured  thereby  may,  at  any  time  within  one  year  thereafter,  in  an  action  against 
such  officers  or  directors,  recover  the  damages  he  has  sustained  by  reason  of  such  mis- 
conduct.    (March   17,   1838,  36  v.  68,   §  22.) 

§  6791.  PROVISIONS  OF  THIS  CHAPTER  CUMULATIVE  TO  OTHER  REME- 
DIES.—  Nothing  in  this  chapter  contained  is  intended  to  restrain  any  court  from 
enfoicing  the  performance  of  trusts  for  charitable  purposes,  at  the  relation  of  the 
prosecuting  attorney  of  the  proper  county,  or  from  enforcing  trusts,  or  restraining 
abuses,  in  other  corporations  at  the  suit  of  a  person  injured.  (March  17,  1838,  36 
v.  68,  §  24.) 

§  6792.  DISPOSITION  OF  FINES. —  All  fines  collected  under  the  provisions  of 
this  chapter  shall  be  paid  into  the  treasury  of  the  proper  county  for  the  use  of  the 
common  schools  within  the  county.      (March  17,  1838,  36  v.  68,  §   25.) 


§  6793.  ACTIONS  UNDER  THIS  CHAPTER  TO  HAVE  PRECEDENCE.  ETC.— 
Actions  under  this  chapter  in  any  court  shall  have  precedence  of  any  civil  busi- 
ness pending  therein;  and  the  court,  if  the  matter  is  of  public  concern,  shall,  on  the 
motion  of  the  attorney-general  or  prosecuting  attorney,  require  as  speedy  a  trial  of 
the  merits  of  the  case  as  may  be  consistent  with  the  rights  of  the  parties.  (March 
20,  1860,  57  v.  50,  §  1.) 


PART    XXX. 

PENAL  CODE. 

§  6809.  Murder  by  obstructing  or  injuring  a  railroad. 

§6861.         Unlawful  meddling  with    railway  property;  penalty. 

§  6862.         Throwing  or  shooting  at  trains  or  vessels. 

§6919.         Corporation  may  be  prosecuted  for  nuisance;   court  to  order  nuisance  abated. 

§  6980.  Railways;  penalty  for  violation  by  engineers  of  certain  duties  at  or  near  crossings; 
obstruction  of  highways  outside  of  Columbus. 

§  6980a.  Unlawful  use  or  occupation  of  highways  by  railway  companies  in  Cincinnati,  Cleve- 
land and  Springfield.  Bars  or  gates  and  watchmen  in  Cincinnati  and  Cleveland. 
Penalty.      First  right   to   use   or   occupancy.     Regular  trains. 

§  6981.         Riding  or  driving  into  inclosures  of  railroads,  etc. 

§  6982.         Climbing  upon  railroad  cars. 

§  7231.         Summons  and  indictment  against  corporations. 

§  6809.  MURDER  BY  OBSTRUCTING  OR  INJURING  A  RAILROAD.— Who- 
ever maliciously  places  an  obstruction  upon  a  railroad,  or  displaces  or  injures  any- 
thing appertaining  thereto,  with  intent  to  endanger  the  passage  of  any  locomotive  or 
car,  and  thereby  occasion  the  death  of  another,  is  guilty  of  murder  in  the  first  degree, 
and  shall  be  punished  accordingly.     (March  16,   1863,  60  v.  17,   §  1.) 

See  Jones  v.  State,  51  Oh.  St.  331,  341   (1894). 

§  6861.  UNLAWFUL  MEDDLING  WITH  RAILWAY  PROPERTY;  PENALTY. 
—  That  it  shall  be  unlawful  for  any  person  or  persons  without  proper  authority,  to 
place  any  obstruction  upon  any  railroad,  or  any  street  railway,  or  any  cable  railway 
in  this  state,  or  displace,  injure,  or  destroy  anything  appertaining  thereto,  or  inter- 
fere with,  remove,  displace  or  disarrange  any  rail,  oross-tie,  switch,  side-track,  loco- 
motive, car  or  train  of  cars  or  other  property  appertaining  to  any  such  railroad,  street 
railway  or  cable  railway,  or  interfere  with,  remove,  displace  or  disarrange  any  flag, 
lamp  or  other  signal  attached  to  or  employed  upon  any  railroad,  street  railway  or 
cable  railway,  or  upon  any  railroad  car  or  train  of  cars,  or  upon  any  street  railway 
car  or  cable  railway  car,  locomotive,  switch  or  other  property  appertaining  to  any 
such  railroad,  street  railway,  or  cable  railway,  or  remove  from,  disarrange  or  destroy 
any  lock,  fastening,  coupling  or  attachment  on  any  track,  car,  switch,  stand,  tool- 
house,  depot,  or  other  property  of  any  such  railroad,  street  railway  or  cable  railway. 
Any  person  violating  any  of  the  provisions  of  this  section  shall,  upon  conviction 
thereof,  be  fined  not  more  than  five  hundred  nor  less  than  twenty-five  dollars  and 
imprisonment  in  the  penitentiary  not  more  than  ten  years  or  in  the  county  jail  not 
less  than  thirty  days.  (March  12,  1887,  84  v.  81;  82  v.  119;  R.  S.  1880;  60  v.  17, 
§  1;  74  v.  252,  §  28.) 

§  6863.     THROWING  OR  SHOOTING  AT  TRAINS  OR  VESSELS:    PENALTY.— 

Whoever  willfully  throws  any  stone  or  other  hard  substance,  or  shoots  any  missile  at 
any  railroad  car,  train,  locomotive  or  at  any  cable  railway  car,  cr  street  railway  car, 
or  at  any  steam  vessel  or  'vater  craft  of  any  description  used  for  the  purpose  of  carry- 
ing passengers  or  freight,  or  both,  on  any  of  the  waters  within  or  bordering  on  the 
state  of  Ohio,  shall  be  fined  not  more  than  five  hundred  nor  less  than  fifty  dollars, 

[036] 


Penal  Code.  637 

Nuisances  — Railroad   Crossings,    SS   69196980a- 

and  imprisoned  in  the  penitentiary  not  more  than  three  years  or  in  the  county  jail 
not  more  than  six  months.  (March  12,  1887,  84  v.  81;  81  v.  125;  R.  S.  1880; 
76  v.  11,   §   1.) 

§  6919.  CORPORATIONS  MAY  BE  PROSECUTED  FOR  NUISANCE;  COURT 
TO  ORDER  NUISANCE  ABATED. —  Corporations  may  be  prosecuted  by  indictment 
for  violation  of  any  of  the  provisions  of  sections  sixty-nine  hundred  and  twenty- 
one,  sixty-nine  hundred  and  twenty-two,  sixty-nine  hundred  and  twenty-three,  sixty- 
nine  hundred  and  twenty-four,  sixty-nine  hundred  and  twenty-five  and  sixty-nine 
hundred  and  twenty-six  (62  v.  137,  §  2;  63  v.  96,  §  1);  and  in  every  case  of  convic- 
tion under  said  sections  the  court  shall  adjudge  that  the  nuisance  described  in  the 
indictment  be  abated  or  removed,  and  may  issue  an  order  to  the  sheriff  to  execute 
such  judgment  at  the  cost  and  expense  of  the  defendant.  (April  15,  1857,  54  v.  130, 
§  3;  April  12,  1865,  62  v.  137;  April  4,  1866,  63  v.  96.) 

Nuisances. 

See  §  6920  et  seq. 

§  6980.  RAILWAYS:  PENALTY  FOR  VIOLATION  BY  ENGINEERS  OF  CER- 
TAIN DUTIES  AT  OR  NEAR  CROSSINGS;  OBSTRUCTION  OF  HIGHWAYS  OUT- 
SIDE OF  COLUMBUS. —  A  person  in  charge  of  a  locomotive  engine  upon  any  rail- 
road who  fails  to  bring  the  engine  with  the  train,  if  any  thereto  attached,  to  a  full 
stop  at  least  two  hundred  feet  before  arriving  at  any  railroad  crossing  or  connection, 
or  crosses  the  same  before  signaled  by  the  watchman  to  cross,  or  before  the  way  is 
clear,  or,  when  approaching  any  railroad  (road)  crossing,  fails  to  sound  the  engine 
whistle  at  a  distance  of  not  more  than  one  hundred  nor  less  than  eighty  rods  from 
such  crossing,  or  to  ring  the  engine  bell  continuously  from  the  place  aforesaid  until 
the  engine  and  cars  attached  thereto  shall  have  passed  such  road  or  crossing,  shall  be 
fined  not  more  than  one  hundred  dollars,  or  imprisoned  not  more  than  thirty  days, 
or  both,  or  if,  by  reason  of  a  violation  of  this  section,  any  person  be  killed,  the  per- 
son in  charge  of  such  engine  shall  be  deemed  guilty  of  manslaughter  and  punished 
accordingly;  or  if  a  person  sustain  bodily  injury  not  producing  death,  the  person  in 
charge  of  such  engine  shall  be  imprisoned  not  more  than  twenty  months  nor  less  than 
one  month,  or  fined  not  more  than  five  hundred  dollars.  It  is  provided  further, 
except  in  cities  of  the  first  grade  of  the  second  class,  that  any  person  who  permits  any 
car  or  locomotive  of  which  he  has  charge  to  remain  upon  or  within  thirty  feet  of  the 
center  or  across  any  public  road,  street  or  alley,  for  a  period  longer  than  five  min- 
utes, or  places  any  timber  or  other  obstruction  upon  or  across  any  such  road,  street  or 
alley,  to  the  hindrance  or  inconvenience  of  travel  thereon,  shall  be  fined  not  more 
than  twenty  nor  less  than  five  dollars.  (March  24,  1888,  85  v.  112;  R.  S.  1880; 
March  31,  1874,  71  v.  50,  §  1;  March  25,  1872,  69  v.  49,  §§  1,  2.) 

N^cccssi  t  v. 

Note  the  difference  between  this  section  and  §  4748.—  Lake  Erie,  etc.,  R.  R.  Co.  v.  Mackey, 

53  Oh.  St.  370  (1895). 

§  6980a.  UNLAWFUL  USE  OR  OCCUPATION  OF  HIGHWAYS  BY  RAILWAY 
COMPANIES  IN  CINCINNATI,  CLEVELAND  AND  SPRINGFIELD.— It  shall  not 
be  lawful  in  cities  of  the  first  and  second  grades  of  the  first  class  and  cities  of  the 
third  grade  a  of  the  second  class  for  any  railroad  company,  superintendent,  agent  or 
other  employe  thereof,  either  directly  or  indirectly,  to  obstruct,  use  or  occupy  any 
street  or  other  public  highway  with  any  locomotive,  car,  cars  or  train,  by  permitting 
or  suffering  such  locomotive,  car,  cars  or  train  to  remain  upon  the  crossing  by  any 
railroad  of  such  street  or  other  public  highway,  or  any  part  thereof,  or  by  coupling, 
switching  or  shifting  of  locomotives,  cars  or  trains,  or  the  making  up  of  trains  across 
such  street  or  other  public  highway,  or  any  part  thereof,  or  by  moving  or  stopping 


638  Private  Corporations  in  Ohio. 


Railroads,  Trespassing  upon,  etc. —  Indictment,  etc,   §§  6981-7231. 


long  freight  trains  across  the  same,  for  a  period  longer  than  four  minutes  at  one 
time;  and  whenever  any  such  street  or  other  public  highway  has  been  thus  obstructed, 
used  or  occupied,  it  shall  not  be  lawful  for  any  railroad  company,  superintendent, 
agent  or  other  employe  thereof,  either  directly  or  indirectly  to  so  obstruct,  use  or 
occupy  the  same,  or  any  part  thereof,  for  a  period  of  five'  minutes  thereafter; 

BARS  OR  GATES  AND  WATCHMEN  IN  CINCINNATI  AND  CLEVELAND.— 
And  in  cities  of  the  first  and  second  grades  of  the  first  class  any  railroad  company  or 
companies  so  using  such  street  or  other  public  highway,  during  said  period  of  four 
minutes,  shall  provide  and  maintain  suitable  bars  or  gates,  and  watchmen  at  such 
street  or  ether  crossings,  to  secure  and  warn  the  public  against  the  dangers  attend- 
ing such  use; 

PENALTY. —  And  if  any  railroad  company,  superintendent,  agent  or  other 
employe  thereof  shall,  either  directly  or  indirectly,  obstruct,  use  or  occupy  such 
street  or  other  public  highway  in  violation  of  the  aforesaid  provisions  and  prohibi- 
tions of  this  section,  or  shall  procure,  direct,  aid  or  abet  in  any  such  violation,  he  or 
they  shall  be  fined  not  more  than  one  hundred  nor  less  than  twenty  dollars,  or 
imprisoned  not  more  than  thirty  days,  or  both. 

EIRST  RIGHT  TO  USE  OR  OCCUPANCY.—  It  is  further  provided,  that  after 
the  expiration  of  said  period  of  five  minutes,  any  railroad  company  other  than  the 
one  last  using  such  street  or  public  highway,  shall  have  the  first  right  to  use  or 
occupy  the  same  for  a  period  not  to  exceed  four  minutes; 

REGULAR  TRAINS.— And  provided  further,  that  nothing  herein  shall  be  so 
construed  as  to  affect  or  interfere  with  the  arrival  and  departure  of  regular  railroad 
trains  moving  across  such  street  or  other  public  highway  at  a  rate  of  speed  not  to 
exceed  six  miles  per  hour;  or  to  any  regular  passenger-train  occupying  any  such 
street  or  highway  for  a  period  less  than  ten  minutes,  for  the  purpose  of  discharging 
or  taking  on  passengers  and  baggage  at  any  of  its  regular  passenger  stations.  (April 
14,  1893,  90  v.   188;  March  24,   1888,  85  v.   113.) 

§  6981.     RIDING  OR  DRIVING  INTO  INCLOSURES   OF  RAILROADS,  ETC.— 

Whoever,  at  any  other  place  than  at  a  private  crossing,  or  for  any  other  purpose  than 
crossing  such  railroad,  rides  or  drives  any  horse,  or  other  domestic  animal,  into  any 
inclosure  of  any  railroad,  and  whoever  knowingly  permits  any  such  animal  to  go 
into,  or  to  remain  in,  any  such  inclosure,  or  places  within  the  same  any  feed,  salt,  or 
other  thing,  to  induce  any  such  animal  to  enter  into  such  inclosure,  or  upon  the  track 
of  any  such  railroad,  and  whoever,  while  constructing  any  such  private  crossing,  or 
while  crossing  such  railroad  at  any  private  crossing,  suffers  any  fence  to  remain 
down  or  open  for  a  longer  time  than  is  necessary  to  construct  or  use  such  crossing, 
shall  be  fined  not  more  than  ten  dollars,  or  imprisoned  not  more  than  thirty  nor  less 
than  ten  days;  each  ten  hours  any  such  animal  is  knowingly  permitted  to  remain  in 
such  inclosure,  or  upon  such  track,  shall  be  deemed  an  additional  offense;  and  animals 
so  being  upon  such  track,  or  in  such  inclosure,  shall  not  be  exempt  from  execution  for 
any  fine  or  costs  imposed  under  this  section.  (February  8,  1875,  72  v.  32;  May  14, 
1868,  65  v.   194,  §§   1,  2.) 

§  6982.  CLIMBING  UPON  RAILROAD  CARS. —  A  person  who  climbs,  jumps, 
steps,  or  stands  upon,  or  clings,  or  in  any  way  attaches  himself  to,  any  locomotive, 
engine,  or  car,  upon  any  part  of  the  track  of  a  railroad,  unless  in  so  doing  he  acts  in 
compliance  with  law,  or  by  permission  under  the  lawful  rules  and  regulations  of  the 
corporation  then  managing  such  railroad,  shall  be  fined  not  more  than  twenty-five 
dollars.     (May  7,   1877,  74  v.  202,    §§   1,  2.) 

§  7231.  SUMMONS  AND  INDICTMENT  AGAINST  CORPORATIONS.—  When 
an  indictment  is  presented  against  a  corporation,  a  summons  commanding  the  sheriff 


Penal  Code. 


639 


Summons  and  Indictment  against  Corporations,    S    7231. 


to  notify  the  accused  thereof,  and  returnable  on  the  seventh  day  after  its  date,  shall 
issue  on  the  precipe  of  the  prosecuting  attorney;  such  summons,  together  with  a  copy 
of  the  indictment,  shall  be  served  and  returned  in  the  manner  provided  for  service  of 
summons  upon  such  corporation  in  civil  actions;  and  if  the  service  cannot  be  made 
in  the  county  where  the  prosecution  began,  then  the  sheriff  may  make  service  in  any 
county  of  the  state  upon  either  its  president,  secretary,  superintendent,  clerk,  cashier, 
treasurer,  managing  agent,  or  other  chief  officer,  or  by  a  copy  left  at  any  general  or 
branch  office,  or  usual  place  of  doing  business  of  such  corporation,  with  the  person 
having  charge  thereof;  the  corporation,  on  or  before  the  return  day  of  a  summons 
duly  served,  may  appear  by  one  of  its  officers,  or  by  counsel,  and  answer  to  the  indict- 
ment by  motion,  demurrer  or  plea,  and  upon  its  failure  to  make  such  appearance  and 
answer,  the  clerk  shall  enter  a  plea  of  "  not  guilty;"  and  upon  such  appearance 
being  made,  or  plea  entered,  the  corporation  shall  be  deemed  thenceforth  continuously 
present  in  court  until  the  case  is  finally  disposed  of.  (April  28,  1890,  87  v.  351; 
R.   S.   1880.) 


Averment   of   corporate   existence. 

An  indictment  against  a  corporation  need 
not  aver  that  it  is  a  corporation.  If  such 
were    the    requirement,    however,    the    name, 


The  Company,  would  sufficiently 

import  that  it  is  a  corporation.  State  v. 
Dry  Fork  Ry.  Co.  (W.  Va.i,  40  S.  E.  Rep. 
447   (1901). 


FORMS. 


§  148c. 
APPLICATION    BY  FOREIGN  CORPORATIONS. 


,   190. . 

TO  THE  SECRETARY  OF  STATE, 

COLUMBUS,  OHIO. 

,  a   foreign  corporation  organized   and   existing 

under  and  by  virtue  of  the  laws  of  the  State  of with  its  principal  office 

located  at ,  in County, in  compliance  with  an  act 

of  the  General  Assembly  of  Ohio,  entitled  "  An  act  to  further  supplement  section  148 
of  the  Revised  Statutes,"  passed  May  16th,  1894,  requiring  a  foreign  corporation 
organized  for  purposes  of  profit,  and  owning  or  using,  or  which  purposes  to  own  or 
use  a  part  or  all  cf  its  capital  stock  or  plant  in  said  State  of  Ohio,  before  being  per- 
mitted to  do  business,  exercise  its  franchise  or  maintain  an  action  therein,  under  the 
oath  of  its  president,  secretary  or  other  officer,  to  make  and  file  with  the  Secretary  of 
State  a  statement  of  facts  and  pay  a  certain  stipulated  fee,  hereby  makes  the  following 
declaration: 

FIRST.     The  authorized  stock  of  said  corporation  is Dollars  ($.  .  .  .). 

divided  into (••••)  Shares  of  the  par  value  of Dollars  ($....) 

each. 


SECOND.     The  value  of  the  property  owned  and  used  in  Ohio,  situate  at 

is Dollars  (S .  .  .  . ). 

THIRD.     The  value  of  the  property  of  the  company  owned  and  use  outside  of 
Ohio  is Dollars  ($....). 

FOURTH.     The  proportion  of  the  capital  stock  of  the  company  represented  by 
property  owned  and  used  and  by  business  transacted  in  Ohio  is 

FIFTH.     The  location  of  its  office  or  offices  in  Ohio  is  at 

SIXTH.     The  names  and  addresses  of  the  officers  or  agents  of  the  company  in 
charge  of  its  business  in  Ohio  are  as  follows: 

Name  of  President, 

Address,  

Name  of  Secretary,    

Address,  

Name  of  Treasurer, 

Address,  

Names  and  addresses  of  managers  or  agents,  other  than  as  above  enumerated: 

IN  WITNESS  WHEREOF,  Said has  caused  its  corporate  seal  to  be 

affixed  and  its  corporate  name  to  be  attached  by  an  officer  thereof,  to  wit,  its 

this day  of ,  A.  D.  190  .. . 

(L-  S.)  

By 

State  of 

County  of ss,: 

,  being  duly  sworn,  deposes  and  says,  that  he 

is  an  officer,  to  wit,  the of ,  that  he  executed  the  foregoing 

statement,  in  the  name  and  on  behalf  of  said  corporation,  and  caused  its  corporate 
seal  to  be  thereto  affixed;  that  he  was  authorized  to  make  such  statement  and  to 
execute  the  same  by  authority  of  the  corporation,  and  that  the  statements  therein 
are  true. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this day  of , 

A.  D.  190.  . 

(I-  S.)  

T6411 


642 


Forms. 


Foreign  Corporations  under  §   148c. 


State  cf , 


County  ) 

I    f ,  within  and  for  the  county  aforesaid,  do  hereby  certify 

that  '.'.'. 'whose  name  is  subscribed  to  the  foregoing-  acknowledgment  as  a 

.....".".  was  at  the  date  thereof,  a ,  in  and  for  said  County,  duly  com- 
missioned and  qualified,  and  authorized  as  such  to  take  said  acknowledgment;  and 
further,  that  I  am  well  acquainted  with  his  handwriting,  and  believe  that  the  signa- 
ture to  the  same  is  genuine. 

IN  WITNESS  WHEBEOF,  I  have  hereunto  set  my  hand  and  affixed  the  seal  of 
said  Court,  at ,  this day  of ,  A.  D.  190 .  . 

(L.  S.) 

OFFICE  OF  THE  SECRETARY  OF  STATE, 

Columbus,  Ohio, ,  190  .  . 

From  the  facts  thus  reported  by  the  said I  find  the  proportion  of  the 

capital  stock  of  the  Company  represented  by  its  property  and  business  in  Ohio  to  be 

per  cent,  of  its  authorized  capital  stock,  to  wit,  the  sum 

Dollars,"  on  which  I  have  assessed  a  fee  of  one-tenth  of  one  per  cent.,  amounting  to 
the  sum  of Dollars. 


Secretary  of  State. 


(L.  S.) 


RETURN     OF     FOREIGN     CORPORATION     UNDER     SECTION     148c     SHOWING 

AGGREGATE  AMOUNT  OF  CAPITAL  STOCK  OWNED  OR  CONTROLLED 

BY   RESIDENTS   CF   OHIO,   ETC. 

The Company 

,   190. . 

TO  THE  SECRETARY  OF  STATE, 

COLUMBUS,  OHIO. 

The Company,  a  foreign  corporation  organized  and  existing 

under  and  by  virtue  of  the  laws  of  the  State  of ,  with  its  principal  office 

located  at ,  in County, ,  in  compliance  with  section 

148c  of  the  Revised  Statutes  of  Ohio,  as  amended  April  14,  1900,  does  hereby  make 
its  return  and  statement  showing  the  aggregate  amount  of  all  of  its  capital  stock 
owned  and  controlled  by  residents  of  Ohio,  the  names  and  addresses  of  stockholders, 
with  the  number  of  shares  owned  by  each  on  the  day  preceding  the  second  Monday  of 
April,  A.  D.  1900,  together  with  the  assessed  value  of  the  property  of  such  company 
returned  for  taxation  in  the  name  of  such  corporation  in  the  State  of  Ohio,  and  the 
assessed  value  of  the  property  of  such  company  returned  for  taxation  outside  of  Ohio. 

FIRST.  The  assessed  value  of  the  property  returned  for  taxation  in  the  name  of 
the  corporation  in  the  State  of  Ohio  is  as  follows: 

Name  of  county  (or  counties) 

Real  property,  value $ 

Personal  property,  value $ 

Total $ 

SECOND.  The  aggregate  value  of  the  real  and  personal  property  of  said  corpora- 
tion returned  for  taxation  in  the  name  of  such  corporation  outside  of  Ohio,  located 
in  the (State  or  States) is  $ 

THIRD.  The  following  is  the  aggregate  amount  of  all  its  capital  stock  owned  or 
controlled  by  residents  of  Ohio,  together  with  the  names  and  addresses  of  the  stock- 
holders, with  the  number  of  shares  owned  by  each,  on  the  day  preceding  the  second 
Monday  of  April,  A.  D.  1900: 


Names  of 
Stockholders. 


Postoffice  Address 


No.  Shares 

Common 

Stock. 


No.  Shares 

Preferred 

Stock. 


Par  Value 

Common 
Stock. 


Par  Value 

Preferred 

Stock. 


Forms.  643 

Foreign  Corporations  under   £S   148c,   148d. 


Total  number  shares  preferred  stock 

Total  number  shares  common  stock 

Aggregate  amount  of  preferred  stock  (par  value) $ . 

Aggregate  amount  of  common  stock  (par  value) S . 

Total  value  of  common  and  preferred $ , 


By 

(Title  of  officer) 

State  of ) 

County  of j 

,    being   first   duly   sworn,   says   that   he   is   the 

of  said ,  and  that  the  foregoing  return  and  statement  is  true 

and  correct. 


Sworn  to  and  subscribed  before  me  and  in  my  presence  by  the  said 
on  this day  of ,  A.  D.  190 .  . 


Notary  Public. 

DEPARTMENT  OF  STATE, 

Columbus,  Ohio, ,   1900. 

As  the  aggregate  amount  of  all  the  capital  stock  of  said  company,  owned  or  con- 
trolled by  residents  of  the  State  of  Ohio,  is in  excess  of  the  assessed  value 

returned  for  taxation  in  this  State,  said  stock  is taxable  in 

proportion 


Secretary  of  State. 


CERTIFICATE  OF  SECRETARY  OF  STATE  UNDER  §   148c. 

STATE  OF  OHIO, 

DEPARTMENT  OF  STATE. 

I ,  Secretary  of  State  of  the  State  of  Ohio,  do  hereby 

certify  that ,  a  foreign  corporation  organized  and 

existing  under  and  by  virtue  of  the  laws  of  the  State  of ,  and  which 

has  an  office  or  place  of  business  in  the  State  of  Ohio  located  at 

on  the day  of A.  D.   190 .  . ,  complied  with  all  the 

requirements  of  the  act  of  May  16th,  1894,  as  amended  April  23rd,  1898.  r.s  amended 
April  14th,  1900,  entitled  "  An  act  to  further  supplement  section  148  of  the  Revised 
Statutes,"   relating  to   foreign   corporations,   and   is    duly   authorized   to   do   business 

herein.     The   entire  amount   of  its  authorized   capital   stock   is    Dollars. 

of  which  is  represented  by  property  owned  and  used  and  by  business 

transacted  in  the  State  of  Ohio. 

WITNESS  my  hand  and  the  seal  of  the  Secretary  of  State,  at  the  City  of  Colum- 
bus, this day  of ,  A.  D.  190 .  . 


Secretary  of  State. 


APPLICATION   OF   FOREIGN    CORPORATION   UNDER    §    148d. 
(Attach  copy  of  articles  of  incorporation  here.) 

TO  THE  SECRETARY  OF  STATE, 

COLUMBUS,  OHIO. 

,  a  corporation  organized  and  existing  under  the 

laws  of  the  State  of ,  with  its  principal  office  located  at in 

County, desiring  to  conform  to  the  laws  of  Ohio,  regulating 

foreign    corporations    doing    business    therein,     does    hereby    make     the    following 
statement: 

FIRST.     The  amount  of  its  authorized  capital  stock  is 

SECOND.     The  business  or  objects  of  the  corporation  which  it  is  engaged  in  carry- 
ing on,  or  which  it  purposes  to  engage  in  or  carry  on  in  the  State  of  Ohio  is 


644  Forms. 

Foreign  Corporations  under  §  148d. 


THIKD.  The  principal  place  of  business  of  said  corporation  in  Ohio  is  to  be 
located  at in County. 

FOURTH.     We   hereby  appoint    ,   of    in    

County,  Ohio,  as  the  person  upon  whom  process  may  be  served  in  all  actions  that  may 
be  brought  against  this  company  in  any  of  the  courts  of  the  State,  and  designate  his 

office in  said  city  as  the  principal  office  of  the  company  in  the  State  of 

Ohio. 

IN  WITNESS  WHEREOF,  Said  corporation  has  caused  its  corporate  seal  to  be 
hereto  attached,  and  this  certificate  to  be  executed  by  its  President  and  Secretary, 
this day  of ,  A.  D.  190 .  . 


(Seal)  By ,  President. 

State  of ) 

County  j"  ss- : 

,  and    ,  being  first  duly  sworn,   depose  and  say 

that  they  did  execute  and  sign  the  foregoing  certificate  for  and  on  behalf  of  said  cor- 
poration, and  that  the  same  is  their  free  act  and  deed,  and  is  the  free  act  and  deed  of 
said ,  of  which  they  are  respectively  the  President  and  Secre- 
tary; that  the  statements  therein  are  true,  and  that  the  seal  attached  thereto  is  the 
genuine  seal  of  said  corporation;  they  further  declare,  on  oath,  that  the  charter  or 
certificate  of  incorporation  hereto  attached  is  a  true  copy  of  the  articles  of  incorpora- 
tion or  charter  of  said 


Sworn  to  before  me  and  subscribed  in  my  presence,  this    day  of 

A.  D.  190.  . 

(L-  S.)  , 


State  of ) 

County  of J 

I, ,  within  and  for  the  county  aforesaid,  do  hereby  certify 

that    ,  whose  name  is  subscribed  to  the  foregoing  acknowledgment  as  a 

,  was  at  the  date  thereof,  a ,  in  and  for  said  county,  duly 

commissioned  and  qualified,  and  authorized  as  such  to  take  said  acknowledgment; 
and  further,  that  I  am  well  acquainted  with  his  handwriting,  raid  believe  that  the 
signature  to  the  same  is  genuine. 

IN  WITNESS  WHEREOF,  I  have  hereunto  set  my  hand  and  affixed  the  seal  of 

said  Court,  at this day  of A.  D.  190.  . 

(L-  S.)  , 


,  Ohio, 
,  190, 


GENTLEMEN:  I  hereby  accept  the  appointment  as  the  representative  of  your 
company  upon  whom  process  may  be  served,  and  agree  to  the  designation  of  my  office, 
,  as  your  principal  office  in  the  State  of  Ohio. 


State  of  Ohio,  County  of ,  ss.: 

Personally  appeared  before  me,  the  undersigned,  a  Notary  Public  in  and  for  said 

County,  this day  of ,  A.  D.  190 .  . ,  the  above  named 

,  who  acknowledged  the  signing  of  the  foregoing  to  be  his  free  act  and 

deed  for  the  uses  and  purposes  therein  mentioned. 

WITNESS  my  hand  and  official  seal  on  the  day  and  year  last  aforesaid. 

(Seal)  , 

Notary  Public,  in  and  for County,  Ohio. 


CERTIFICATE  OF  SECRETARY  OF  STATE  UNDER  §  148d. 

STATE  OF  OHIO, 

DEPARTMENT  OF  STATE. 

IT  IS  HEREBY  CERTIFIED,  That which  appears  from 

the  papers  filed  in  this  office  on  the day  of 189.  .    to  be  a 


Forms.  645 

Articles  of  Incorporation  for  Profit. 


as  amenc 
late  fore: 


that  the  business  of  such  corporation  to  be  carried  on  in  this  State,  is  su<  v  be 

lawfully  carried  on  by  a  corporation  incorporated   under  the  laws  of  this  Stat 
such  or  similar  business.  •->««. ■•<=  ui 

r.  1       VWI™ESS  my  hand  and   the  seal  of  the  Secretary  of  State,  at  the  City  of 
Columbus,  this day  of ,  A.  D.  189 .  . . 


Secretary  of  State. 


§  3236. 

FORMS  OF  ARTICLES  OF  CORPORATION  FOR  PROFIT. 

Note.  — The  forms   full, .win."'   (under  the   general   law)    are   applicable   to  co-operative 
electric  lighting,  gas,  manufacturing,  mercantile,  mining,  oil,  printing,  publishing,   raili 
telephone  and   telegraph   companies,  and  generally    to   corporations   having  a    capital 
formed  under  this  section,  and  for  the  organization  of  which  no  special  provision  is  made  in 
subsequent  chapters   of   the    Revised    Statutes.     The    forms   and    methods    for   incorpoi 
special  corporations  are  similar  to  those  shown  here. 

CORPORATION  FOR  PROFIT. 

THESE  ARTICLES  OF  INCORPORATION 

—  of  — 

The Company. 

WITNESSETH,  That  we,  the  undersigned * of  whom  are  citizens  of 

the  State  of  Ohio,  desiring  to  form  a  corporation,  for  profit,  under  the  general  corpo- 
ration laws  of  said  State,  do  hereby  certify: 

FIRST.     The  name  of  said  corporation  shall  be  The 

Company. 

SECOND.     Said  corporation  is  to  be  located  at ,  in 

County,  Ohio,  and  its  principal  business  there  transacted. 

THIRD.     Said  corporation  is  formed  for  the  purpcse  of 


FOURTH.     The  capital  stock  of  said  corporation  shall  be 

Dollars  ($ ),  divided  into ( )  shares  of Dollar 

($....)  each. 


IN  WITNESS  WHEREOF,  We  hereunto  set  our  hands,  this day  of 

,  A.  D.  190.  . 


*  "All  "   or   "  a   majority." 

The  State  of  Ohio,  County  of ,  ss.: 

Personally  appeared  before  me,  the  undersigned,  a in  and 

fo  rsaid  county,  this day  of A.  D.   190.  . ,  the  above  named 

, , and 

who  each  severally  acknowledged  the  signing  of  the  foregoing  articles  of  incorpora- 
tion to  be  his  free,  act  and  deed,  for  the  uses  and  purposes  therein  mentioned. 

WITNESS  my  hand  and  official  seal  on  the  day  and  year  last  aforesaid. 


The  State  of  Ohio,  County  of ,  ss.: 

I, ,  Clerk  of  the  Court  of  Common  Pleas,  within  and  for 

the  county  aforesaid,  do  hereby  certify  that whose  name  is 

subscribed  to  the  foregoing  acknowledgment  as  a ,  was  at  the 

LAW   GOV.    PRIV.   COR. 39. 


646  Forms. 

Articles,  etc.,  for  Profit  —  Statement  of  Purposes. 


dace  tnereof  a ,  in  and  for  said  county,  duly  commissioned  and 

qualified,  and  authorized  as  such  to  take  said  acknowledgment;  and  further,  that  I 
am  well  acquainted  with  his  handwriting,  and  believe  that  the  signature  to  said 
acknowledgment  is  genuine. 

IN  WITNESS  WHEREOF,  I  have  hereunto  set  my  hand  and  affixed  the  seal  of 
said  Court,  at ,  this day  of ,  A.  D.  190 .  . 


Clerk. 
(Clerks  are  required  to  use  the  certificate  printed  on  forms  and  not  attach  their 
own.) 

FORM  FOR  PREFERRED  STOCK. 

FOURTH.     The  capital  stock  of  said  corporation,  common  and  preferred,  shall  be 

Dollars  (8 ),  consisting  of ( )  Shares 

of  common  stock  of  the  par  value  of Dollars  ( )  each, 

and (....)  Shares  of  preferred  stock  of  the  par  value  of 

Dollars  ($ )  each;  the  purchasers  and  owners  of  the  preferred  stock  shall  be 

entitled  to  a  dividend  of per  cent,  per  annum  out  of  the  surplus  profits  for 

each  year  in  preference  to  all  other  stockholders,  and  may  convert  such  preferred 
stock  into  common  stock  at  their  election. 

Note.  —  See  note  under  forms  under   §  3254. 

FORM  FOR  REAL  ESTATE  CORPORATION. 

THIRD.  Said  corporation  is  formed  for  the  purpose  of  dealing  in  real  estate,  sub- 
ject to  the  provisions  of  Section  3235  of  the  Revised  Statutes,  and  is  to  exist  for  the 
term  of  twenty-five  years. 

FORMS  FOR  STATEMENT  OF  PURPOSE  OF  CORPORATIONS  FOR  PROFIT. 
ARCHITECTURAL  COMPANY. 
The  Kauffman  Architectural  Company. 
(Filed  June  25th,  1900.     Vol.  83,  Page  13.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  making  plans,  specifica- 
tions and  drawings,  making  estimates,  superintending  work,  designing  and  building 
all  kinds  of  structures  and  of  carrying  on  and  conducting  a  general  architectural 
business.  » 

AUDITING  COMPANY. 

The  Cincinnati  Audit  Company. 
(Filed  February  1st,  1901.     Vol.  83,  Page  634.) 
THIRD.     The  corporation  is  formed  for  the  purpose  of  auditing  books  of  corpora- 
tions and  firms;  also  to  do  any  and  all  such  work  as  may  be  incident  to  such  auditing. 

AUTOMOBILE  COMPANY. 
The  Cleveland  Automobile  and  Supply  Co. 
(Filed  Sept.  17th,  1900.     Vol.  83,  Page  201.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  purchasing,  selling  and 
repairing  Automobiles  and  other  self-propelling  vehicles,  dealing  in  machinery,  mate- 
rials and  all  supplies  in  any  way  connected  therewith,  and  in  general  repairing,  and 
renting  Automobiles. 

AGENCY  COMPANY. 

The  Graham-Baum  Company. 
(Filed  January  19th,  1901.     Vol.  83,  Page  586.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  acting  as  an  Agency  for 
general  insurance,  bonding,  negotiating  loans  and  transfers  of  real  estate,  and  doing 
all  things  incident  thereto. 

ABSTRACT  COMPANY. 

The  Cuyahoga  Abstract  Company. 

(Filed  April  6th,  1900.     Vol.  81,  Page  474.) 

THIRD.     Said  corporation  is  formed  for  the  purpose  of  making  and  furnishing 

abstracts  and  certificates  of  title  to  real  property  and  to  do  a  general  searching  of 

records. 


Forms.  647 

Articles,   etc.,  for  Profit  —  Statement  of  Purposes. 

AIR  COOLING  COMPANY. 

The  Ohio  Bell  Pure  Air  &  Cooling  Company. 

(Filed  February  6th,   1901.     Vol.  78,  Page  522.) 

THIRD.     Said  corporation  is  formed  for  the  purpose  of  ventilating,  purifying  and 

regulating  the  humidity  of   air  and  of  manufacturing  and   dealing   in   all   kinds  of 

apparatus,  devices  and  inventions  designed  for  said  purposes. 

BAND  COMPANY. 
The  Germania  Band  and  Orchestra  Company. 
(Filed  June   13th,   1900.     Vol.   81,  Page  663.) 
THIRD.     Said    corporation   is   formed   for   the   purpose   of   furnishing   band    and 
orchestra  music  and  generally  to  do  and  carry  out  all  things  incident  to   band  and 
orchestra  organizations,   including  the  purchase  of  all   necessary  music  and   instru- 
ments, uniforms  and  other  necessary  paraphernalia. 

BOOT  AND  SHOE  COMPANY. 

The  H.  N.  Adams  Company. 

(Filed  February  9th,  1901.     Vol.  83,  Page  672.) 

THIRD.     Said   corporation   is   formed   for  the   purpose   of  buying   and  selling  at 

wholesale,  and  dealing  in  boots  and  shoes  and  kindred  merchandise  and  for  doing  all 

things  incident  thereto. 

BUTCHERING  COMPANY. 

The  Hooker  Sausage  Manufacturing  Company. 

(Filed  January  19th,  1901.     Vol.  83,  Page  587.) 

THIRD.     Said   corporation  is   formed  for  the  purpose   of  carrying   on   a   general 

wholesale  and  retail  butcher,  provision  and  food  product  business,  manufacturing  of 

meat  foods  and  a  general  butcher  business  in  all  its  branches. 

BUSINESS  COLLEGE. 
The  Jacobs  University  Company. 
(Filed  January  29th,  1900.     Vol.  81,  Page  239.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  conducting  a  general  busi- 
ness college  known  as  The  Jacobs  Business  University,  including  instruction  in  book- 
keeping,  banking,   penmanship,   office   practice,   shorthand   and   typewriting,   and   all 
branches  of  study  pertaining  to  a  thorough  business  education. 

BUSINESS  COLLEGE  COMPANY. 

The  Salem  Business  College  Company. 
(Filed  April  4th,  1900.     Vol.  81,  Page  464.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  carrying  on  the  ordinary 
work  of  a  business  or  commercial  school,  and  of  acquiring  and  holding  the  property, 
whether  real  or  personal,  necessary  to  carry  on  such  work. 

BUILDING  COMPANY. 
The  Century  Building  Company. 
(Filed  April  10th,  1900.     Vol.  81,  Page  481.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  constructing  and  main- 
taining buildings  tc  be  used  for  hotels,  store-rooms,  offices,  warehouses  and  factories 
and  to  acquire  by  purchase  or  lease  and  to  hold,  use,  mortgage  and  lease  all  such  real 
estate  and  personal  property  as  may  be  necessary  for  carrying  on  such  business. 

BAKERY  COMPANY. 

The  Geo.  H.  Strietmann's  Sons  Company. 

(Filed  March  18th,  1901.     Vol.  87,  Page  131.) 

THIRD.     Said  corporation  is  formed  for  the  purpose  of  manufacturing,   buying, 

selling  and  dealing  in  bread,  crackers,  cakes,  biscuit,  candies,  confectionery  and  all 

materials  for  the  same,  and  doing  all  things  incident  thereto. 


648  Forms. 

Articles,   etc.,  for  Profit  —  Statement  of  Purposes. 


COOPERAGE  COMPANY. 

The  Cleveland  Barrel  Company. 

(Filed  April  14th,  1900.     Vol.  81,  Page  497.) 

THIRD.     Said  corporation  is  formed  for  the  purpose  of  buying,  selling,  dealing  in 

and  manufacturing  barrels,  boxes  and  all  kinds  of  cooperage  stock  and  all  things 

incident  thereto  for  profit. 

COAL  COMPANY. 

The  Albright  Coal  Company. 

(Filed  April  6th,  1900.     Vol.  81,  Page  473.) 

THIRD.     Said  corporation  is  formed  for  the  purpose  of  purchasing  and  leasing  or 

otherwise  obtaining  deposits  of  coal  and  operating  mines  for  the  mining  and  removing 

of  same  and  for  buying,  selling  and  dealing  in  coal  and  coke. 

COAL  COMPANY. 

The  Schafer-Suhr  Company. 
(Filed  April  18th,  1900.  Vol.  81,  Page  512.) 
THIRD.  Said  corporation  is  formed  for  the  purpose  of  mining  coal  and  dealing 
in  coal,  coke,  and  kindred  products,  by  wholesale  and  retail,  and  the  transaction  of 
all  business  incidental  thereto  and  connected  therewith;  with  power  and  authority  to 
purchase,  sell,  or  lease  mineral  lands  and  to  purchase,  own,  lease  or  control  suitable 
real  estate  for  the  transaction  of  its  business. 

COLLEGE  COMPANY. 
The  West  Lafayette  College. 
(Filed  April  16th,  1900.     Vol.  76,  Page  434.) 
THIRD.     The  purpose  for  which  said  corporation  is  formed  is  to  establish,  main- 
tain and  conduct  an  institution  of  learning  for  the  purpose  of  promoting  education  in 
all  departments  of  learning  and  knowledge  and  especially  in  those  branches  usually 
comprehended  in  academic,  collegiate  and  university  courses;  to  acquire  and  hold  for 
said  purposes  money,  real  estate,  and  other  property  necessary  or  proper  to  carry  out 
said  objects;  and  to  do  any  and  all  things  reasonable  and  necessary  to  be  done  ta 
carry  out  said  purposes. 

CONSTRUCTION   COMPANY. 
The  Hoeffer-Peter  Construction  Company 
(Filed  February  8th,  1901.     Vol.  83,  Page  663.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  carrying  on  the  general 
work  of  a  Construction  Company,  such  as  grading,  laying  track,  ballasting,  building 
bridges,  and  doing  any  and  all  work  necessary  in  making  and  preparing  road-beds  for 
steam,  electric,  and  other  railroads,  and  all  contract  work  relating  thereto;  also  con- 
struction and  contract  work  of  every  kind  for  Cities  and  Towns;  also  the  construction 
and  erection  of  buildings,  and  in  general,  doing  construction  and  contract  work  of 
every  kind. 

CONSTRUCTION   COMPANY. 

The  Reed-Haseltine  Construction  Company. 
(Filed  January  14th,  1901.     Vol.  83,  Page  568.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  grading  and  excavating 
and  the  construction  and  erection  of  bridges,  buildings,  machinery,  railroads,  piers, 
abutments,  breakwaters,  masonry  and  other  structures  and  for  the  purpose  of  carry- 
ing on  a  general  construction  business. 

CHINA  COMPANY. 
The  Knowles  China  Company. 
(Filed  April  7th,  1900.     Vol.  81,  Page  475.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  manufacturing,   buying 
and  selling  china  pottery  and  earthenware;  to  decorate  and  embellish  the  same;  to 
mine  and  manufacture  and  deal  in  china  clay,  flint  and  feldspar  and  all  materials  of 
any  nature  used  in  the  manufacture  of  said  wares  and  to  acquire,  hold  and  possess 
and  sell  real  estate  and  other  property  necessary  for  the  proper  and  convenient  con- 
duct of  said  business  for  profit. 


Forms.  649 

Articles,   etc.,  for  Profit  —  Statement  of  Purposes. 

CHAUTAUQUA  COMPANY. 

The  Miami  Valley  Chautauqua  Company. 

'  (Filed  December  24th,  1900.     Vol.  83,  Page  491.) 

1  THIRD.  Said  corporation  is  formed  for  the  purpose  of  holding-  annual  Chautauqua 
assemblies,  encouragement  of  Religion,  Art,  Science  and  Literature,  the  general  dis- 
semination of  knowledge,  and  to  provide  social  entertainments  and  other  means  of 
recreation  and  amusements. 

DAIRY  COMPANY. 

The  Rosewood  Elgin  Butter  Company. 

(Filed  June  25th,  1900.     Vol.  83,  Page  16.) 

THIRD.  Said  corporation  is  formed  for  the  purpose  of  manufacturing  and  deal- 
ing in  butter,  cheese,  cream  and  all  other  dairy  products. 

DRIVING  PARK  COMPANY. 

The  Lake  County  Driving  Park  Company. 

(Filed  February  7th,  1901.     Vol.  83,  Page  658.) 

THIRD.  Said  corporation  is  formed  for  the  purpose  of  erecting  and  maintaining 
a  park  and  grounds,  containing  drive  and  speedways  for  the  purpose  of  recreation 
and  amusement  and  holding  meets  therein  with  horses  and  vehicles. 

DIRECTORY  COMPANY. 

The  Williams  Directory  Company. 

(Filed  November  8th,  1900.     Vol.  83,  Page  343.) 

THIRD.  Said  corporation  is  formed  for  the  purpose  of  printing  and  publishing 
city,  county  and  state  directories  and  of  doing  a  general  printing  and  publishing 
business. 

DRUG  AND  SANITORIUM  COMPANY. 

The  Antimoccolata  Hospital  Company. 

(Filed  February  2nd,  1901.     Vol.  86,  Page  170.) 

THIRD.  Said  corporation  is  formed  for  the  purpose  of  manufacturing,  com- 
pounding, using,  buying,  selling  and  dealing  in  drugs,  medicines,  surgical  instru- 
ments, chemicals  and  formulas;  erecting,  owning  and  conducting  sanitoriums  or 
hospitals  for  the  receiving  and  caring  for  patients,  and  for  the  medical,  surgical  and 
hygienic  treatment  of  the  diseases  of  such  patients,  and  for  the  instruction  of  nurses 
in  the  treatment  of  disease  and  in  hygiene,  and  of  doing  all  things  necessary  to  carry 
out,  or  incident  to,  said  purpose. 

DRUG  STORE  COMPANY. 

The  City  Hall  Drug  Store  Company. 

(Filed  March  12,  1901.     Vol.  87,  Page  106.) 

THIRD.  Said  corporation  is  formed  for  the  purpose  of  carrying  on  a  wholesale 
and  retail  drug,  cigar  and  tobacco  business,  buying  and  selling  drugs,  druggists' 
sundries,  cigars  and  tobacco,  and  also  for  the  purpose  of  manufacturing,  compounding 
and  selling  pharmacutical  preparations. 

DRY  GOODS  AND  NOTIONS  COMPANY. 
The  Sheldon  Dry  Goods  Company. 
(Filed  January  31st,  1901.     Vol.  83,  Page  631.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  buying,  selling  and  deal- 
ing in   dry  goods,  notions,   furnishing   goods  and   general   merchandise   in   all   then- 
varieties  at  wholesale,  also  acquiring  by  purchase  or  lease  such  property  both  real 
and  personal  as  may  be  deemed  necessary  or  convenient  for  the  aforesaid  purposes, 
also  doing  all  such  other  things  and  business  as  may  be  necessary,  convenient  or  inci- 
dent to  the  main  purpose  of  such  eorpcration. 


650  Forms. 

Articles,   etc.,  for  Profit  —  Statement  of  Purposes. 

DETECTIVE  AGENCY. 

The  Special  Police  and  Detective  Bureau  Co. 

(Fried  Nov.  29th,  1899.     Vol.  81,  Page  59.) 

THIF.D.  Said  corporation  is  formed  for  the  purpose  of  establishing,  maintaining 
and  conducting  a  general  and  special  police  and  detective  modifying  bureau  and 
agency;  of  carrying  on  every  kind  of  business  usually  transacted  in  connection  there- 
with or  incidental  thereto;  and,  in  general,  of  acting  as  principals,  agents,  contractors, 
trustees,  or  otherwise,  in  obtaining,  acquiring,  delivering,  notifying,  aiding  or  pro- 
tecting, and  of  furnishing  in  any  lawful  manner  information,  facts,  evidence,  cir- 
cumstances of,  relating  tc,  benefiting  by,  or  affecting  the  business,  capital,  solvency, 
insolvency,  credit,  responsibility,  risk,  accident,  safety,  security,  condition,  standing 
or  relationship  of,  any  or  all  individuals,  firms,  associations,  corporations  engaged  in 
or  connected  with  any  matter  of  a  personal,  special  or  general  character  of  any  kind 
whatsoever;  and  of  any  business,  occupation,  industry,  or  employment,  as  may  be 
planned  or  required,  which  this  corporation  may  think  calculated,  directly  or  indi- 
rectly, to  effectuate  said  purpose;  of  undertaking,  entering  into,  conducting  and 
carrying  out  contracts  of  all  kinds  pertaining  to  said  business;  of  buying,  owning, 
holding,  selling,  leasing  and*  conveying,  or  otherwise,  such  real  or  personal  property 
as  may  be  incident  to  or  necessary  in  carrying  out  the  full  purpose  of  said  company. 

EMBALMING  FLUID  COMPANY. 

The  Clarke  Fluid  Company. 

(Filed  June  1st,  1900.     Vol.  81,  Page  637.) 

THIRD.  Said  corporation  is  formed  for  the  purpose  of  manufacturing,  compound- 
ing, bujang,  selling  and  trading  in  Embalming  fluids.  Embalming  instruments, 
Embalming  tables,  disinfectants,  antiseptics,  deodorizers  and  anything  pertaining  to 
the  business  of  embalming,  preserving  and  caring  for  the  human  dead. 

EXPRESS  COMPANY. 

The  Southern  Ohio  Express  Company. 

(Filed  Sept.  20th,  1900.     Vol.  83,  Page  214.) 

THIRD.  Said  corporation  is  formed  for  the  purpose  of  doing  a  general  express 
business  within  said  State,  carrying  and  delivering  express  matter. 

FENCE  COMPANY. 

The  Springfield  Fence  Manufacturing  Company. 

(Filed  February  3rd,  1900.     Vol.  81,  Page  253.) 

THIED.  Said  corporation  is  formed  for  the  purpose  of  growing  and  manufactur- 
ing hedge  and  wire  fences,  dealing  in  wire,  hedge  plants,  tools,  fence  machines, 
patents  pertaining  to  the  same,  and  such  other  business  as  may  grow  out  or  on  account 
of  the  said  business. 

FOUNDRY  COMPANY. 

The  Cureton  Foundry  Company. 

(Filed  December  21st,  1900.     Vol.  83,  Page  485.) 

THIRD.  Said  corporation  is  formed  for  the  purpose  of  carrying  on  the  business 
of  a  foundry  and  machine  shops,  for  purchasing  and  owning  the  necessary  real  estate, 
buildings,  machinery,  tools,  fixtures,  supplies,  for  manufacturing  and  selling  the 
products  of  said  foundry  and  machine  shop,  including  iron  and  steel  castings, 
machinery,  and  generally  to  carry  on  a  manufactory  in  iron  and  steel  products. 

GAS  AND  ELECTRIC  COMPANY. 

The  Norwalk  Gas  and  Electric  Company. 

(Filed  April  20th,  1900.     Vol.  81,  Page  522.) 

THIRD.  Said  corporation  is  formed  for  the  purpose  of  manufacturing,  producing, 
furnishing  and  selling  gas  and  electricity,  or  either,  for  light,  heat,  power  and  other 
purposes,  and  for  doing  all  things  incident  to  said  purpose. 


Forms.  651 

Article,  ptc,  for  Profit  —  Statement  of  Purpi 

NATURAL  GAS  AND  OIL  COMPANY. 
The  Columbus  Natural  Gas  and  Oil  Company. 

(Filed  December  31st,  1900.     Vol.  83.  Page  B19.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  drilling  for  and  accumu- 
lating petroleum  oil  and  natural  gas,  buying  and  selling  oil  and  gas,  rights,  privileges 
and  leases  and  oil  and  gas,  leasing  oil  and  gas  territory,  constructing  and  operal 
pipe  lines;  refining  and  dealing  in  oil,  and  all  things  incident  to  said  business;  also 
the  buying  and  selling  of  and  developing  of  mineral  lands,  rights  and  privilege.-- 
minerals. 

ARTIFICIAL  GAS  COMPANY. 
The  Cleveland  Gas  and  Illuminating  Company. 
(Filed  January  26th,  1900.     Vol.  81,  Page  225.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  manufacturer 
light,  heat  and   power,   to   be  made  from  any  and   all   substances,   or   a  combination 
thereof,  from  which  gas  can  be  obtained,  and  for  the  purpose  of  selling  and  disp< 
of  the  same  in  the  City  of  Cleveland  and  elsewhere,  with  full  power  to  lay  pipes 
conductors  therefor,   through   the  avenues,   streets,   lanes  and   alleys  thereof,  and    in 
such  other  places  as  may  be  necessary  or  convenient  to  supply  said  avenues,  streets, 
lanes  and  alleys,  and  any  manufactories,  public  places,  buildings,  houses,  or  any  other 
place  or  building  whatsoever  with  gas,  for  light,  heat  and  power,  together  with  the 
power  to  hold,  occupy  and  employ  such  real  and  personal  estate  and  to  do  such  other 
things  as  may  be  necessary  or  convenient  to  carry  out  the  objects  of  this  corporation, 
and  to  manufacture  and  sell  coke  and  all  other  products  used   in  the  manufacture 
of  gas. 

GENERAL  STORE  COMPANY. 
The  Boon-Bevington  Company. 
(Filed  January  11th,  1901.     Vol.  83,  Page  564.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  doing  a  general  merchan- 
dise business  at  wholesale  and  retail  and  of  buying,  selling  and  dealing  at  wholesale 
and  retail  in  dry  goods,  notions,  clothing,  gentlemen's  furnishing  goods,  hats.  caps, 
boots,  shoes,  carpets,  groceries,  queensware,  glassware,  wool,  live  stock,  grain,  butter, 
eggs  and  other  country  produce. 

GLASSWARE  COMPANY. 
The  Massillon  Bottle  and  Glass  Company. 
(Filed  June   1st,   1900.     Vol.   81.  Page  638.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  manufacturing,  selling, 
buying  and  dealing  in,   glass  bottles,   glass  jars  and   all  other  forms  and   kinds   of 
glassware;  and  of  doing  all  other  acts  and  things  in  any  way  incidental  to  or  con- 
nected with  such  business. 

HARNESS  AND  SADDLERY  COMPANY. 
The  Queen  City  Harness  and  Saddlery  Company. 
(Filed  Jan.  22nd,  1900.     Vol.  81.  Page  206.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  manufacturing,  buying, 
selling  and  dealing  in  all  kinds  of  harness,  harness  makers'  supplies,  saddlery,  col- 
lars, and  all  other  articles  pertaining  to  the  harness  trade.     And  for  such  purposes  to 
purchase,  acquire,  lease,  own  and  hold  such  real  estate  as  may  be  necessary  for  the 
conducting  of  said  business. 

HOUSE  FURNISHING  COMPANY. 

The  Smith  House  Furnishing  Company. 

(Filed  February  7th,  1901.     Vol.  83.  Page  654.) 

THIRD.     Said  corporation  is  formed  for  the  purpose  of  manufacturing,  leasing 

buvine    selling  and  dealing  in  house,  store,  and  other  furniture  and  furnishings  and 

caWneTworkogf  aU  kinds  and  to  do  all  things  incident  thereto  including  selling  said 

goods  on  installments. 


652  Form?. 

Articles,   etc.,  for  Profit  —  Statement  of  Purposes. 


HEATING  COMPANY. 
The  Columbus  Heating  Company. 
(Filed  April  20th,  1900.     Vol.  81,  Page  524.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  making  and  supplying 
steam  and   steam  heat  for  both  public   and  private   consumption   and  use;   also   the 
supplying  of  hot  water  for  said  use;  and  the  purchase  and  use  of  such  tools,  engines, 
pipes  and  other  apparati  necessarily  incident  to  said  business;  and  to  acquire  fran- 
chises and  privileges  to  so  supply  said  steam,  steam  heat  and  hot  water. 

PLUMBING  AND  HEATING  COMPANY. 

The  Ccnture  Plumbing  and  Heating  Company. 

(Filed  October  19th,  1900.     Vol.  83,  Page  282.) 

THIRD.     Said  corporation  is  formed  for  the  purpose  of  doing  the  business  of 

plumbing,  heating,  s?as  fitting,  sewer  building,  and  buying,  selling  and  dealing  in  all 

kinds  of  "material  and  supplies  used  by  or  in  said  above  trades  or  business. 

For  the  purpose  of  owning,  manufacturing,  selling,  leasing  for  hire  ana  aeanng 
in  mechanical  devices,  machinery  and  articles  of  all  kinds  made  and  connected  and  m 
accordance  with  any  or  all  letters  patent  of  the  United  States  or  foreign  countries 
heretofore  or  hereafter  granted  pertaining  to  said  above  trades  or  business.  Also  to 
purchase,  own  and  control  patents  whether  domestic  or  foreign  pertaining  to  said 
above  trades  or  business  and  of  licensing  others  to  use  the  same  for  hire. 

HOTEL  COMPANY. 

The  Hotel  Donavin  Company. 
(Filed  October  16th,  1900.     Vol.  83,  Page  274.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  constructing  and  main- 
taining buildings  to  be  used  for  hotels,  store  rooms,  offices,  warehouses,  factories,  etc., 
and  to  transact  all  business-  authorized  by  law  to  be  transacted  by  such  a  corporation 
for  profit. 

IRON  COMPANY. 

The  Zanesville  Iron  Company. 
(Filed  February  1st,  1900.     Vol.  81,  Page  247.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  manufacturing,  buying 
and  selling  iron  and  steel  and  the  various  products  and  forms  thereof. 

LOCAL  TELEPHONE. 

The  Citizens'  Telephone  Company. 
(Filed  February  6th,   1900.     Vol.  81,  Page,  261.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  constructing,  maintaining 
and  operating  a  telephone  exchange  system  in  the  City  of  Circleville,  Ohio,  and  in  the 
County  of  Pickaway  in  said  State. 

LAUNDRY  COMPANY.        • 
Tbe  New  Imperial  Laundry  Company. 
(Filed  December  27th,  1900.     Vol.  83,  Page  497.) 
THIRD.     Said  corporation   is  formed   for  the  purpose   of  conducting   a   laundry 
business,  and  the  doing  of  all  things  necessary  and  incidental  thereto. 

LODGE  BUILDING  COMPANY. 
The  Marietta  Elk  Building  Company. 
(Filed  February  7th.   1901.     Vol.  83,  Page  660.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  erecting,  furnishing  and 
maintaining  a  building  in  the  City  of  Marietta,  Ohio,  to  be  used  and  occupied  by  local 
lodge  Number  Four  Hundred  and  Seventy-seven,  of  The  Benevolent  and  Protective 
Ord°er  of  Elks,  as  a  lodge  room  and  club  house. 
Note. —  See  §  3631-8. 


Foi  653 

Articles,   etc.,  for  Profit  —  Statement   of  Pur] 

MUSICAL  INSTRUMENT  COMPANY. 
The   Albert  Krell  Company. 
(Filed  Oct.   15th,   1900.     Vol.  8:3,  Page  270.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  manui  purchas- 

ing, selling  and  dealing  in  all  kinds  of  pianos,  organs,  automatic  pianos,  instiuments 
of  all  kinds,  appliances,  supplies  and  all  things  incident  thereto. 

MILLING  COMPANY. 
The  St.  Clair  Milling  Company. 
(Filed  January  31st,  1901.     Vol.  83,  Page  630.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  owning,  controlling 
operating  flour  and  grist  mills,  and  for  buying  and  selling,  at  wholesale   and   retail. 
and  dealing  in,  grain,  seed,  flour,  feed  and  kindred  merchandise,  and  for  the  pui; 
of  owning  all  machinery,  privileges,  real  estate  and  other  property  needed  in 
on  such  business,  and  for  doing  all  things  incident  to  such  purposes  and  business. 

MEN'S  FURNISHING  COMPANY. 
The  David  M.  Nanson  Company. 
(Filed  February  7th,  1900.     Vol.  81,  Page  267.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  dealing  in  woolens,  trim- 
mings, and  fabrics  used  in  connection  with  the  tailoring  business;  in  the  manuf a< ■• 
purchase  and  sale  of  custom  made  and  ready  made  clothing  of  every  kind  and  nature 
and  for  the  purpose  of  dealing  in  furnishing  goods. 

MILLINERY  COMPANY. 
The  J.  V.  Clement  Company. 
(Filed  January  10th,   1901.     Vol.  83,  Page  555.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  manufacturing,  import- 
ing, buying,  selling,  jobbing  and  dealing  in  millinery  of  every  description  and  doing 
all   things   incident   thereto,    and   for   owning    and    holding   such   real   and   personal 
property  as  may  be  necessary  or  convenient  therefor. 

MASONIC  TEMPLE  COMPANY. 
The  Masoic  Temple  Company. 
(Filed  November  5th,  1900.     Vol.  83,  Page  335.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  erecting,  equipping  and 
maintaining  a  home  or  Masonic  Temple  for  the  Free  and  Accepted  Masons  of  Warren. 
Ohio,   and  vicinity,   providing  them  with   suitable  lodge,   club   and   reception   rooms 
therein  and  doing  all  and  singular  the  acts  required  and  proper  in  the  erection,  equip- 
ment and  maintenance  of  such  a  building. 

MESSENGER  SERVICE  COMPANY. 
The  American  District  Telegraph  Company  of  Cleveland  Co. 
(Filed  December  29th,  1900.  Vol.  82.  Page  234.) 
THIRD.  Said  corporation  is  formed  for  the  purpose  of  constructing,  maintaining, 
leasing  and  operating  lines  of  telegraph  for  the  private  use  of  individuals,  firms, 
corporations,  municipal  and  otherwise,  for  general  business,  for  police,  fire,  and 
burglar  alarm  telegraph  service,  and  in  connection  therewith  for  constructing,  own- 
ing, and  operating  a  general  messenger,  delivery,  and  district  telegraph  service,  a 
general  collection,  storage,  and  delivery  of  packages,  freight,  and  other  properties, 
for  the  constructing,  owning,  and  operating  of  a  local  system  of  electrical  call-boxes 
for  messages,  messengers,  fire,  and  burglar  alarm  signals,  and  signals  for  police  and 
fire  patrol  and  night  watchmen,  and  for  any  other  purpose  or  purposes  in  connection 
therewith  or  incident  thereto:  also  the  manufacture  and  sale  of  any  and  all  electrical 
or  other  appliances,  supplies,  and  fixtures  necessary  or  incidental  to  the  carrying  on 
of  said  business,  and  also  to  carry  on  a  general  electrical  construction  and  supply 
business,  and  to  generate  and  supply  electricity  for  any  and  all  purposes. 

Said  company  may  also  act  as  advertisers,  distributors,  and  general  agents  for 
handling  the  business  and  collecting  and  remitting  funds  in  connection  therewith, 
of  corporations,  firms,  or  individuals.  It  may  engage  in  the  business  of  furnishing 
stationery  and  advertising  matter,  devices  and  novelties  of  all  kinds. 


654  Forms. 

Articles,   etc.,  for  Profit  —  Statement  of  Purposes. 


MUTUAL  TELEPHONE  COMPANY. 

The  Eureka  Telephone  Company. 
(Piled  February  5th,  1900.  Page  259.) 
THIRD.  Said  corporation  is  formed  for  the  purpose  of  giving  its  members 
together  with  their  families  and  help  in  business  relations  free  telephone  service  over 
any  of  its  lines  and  to  enforce  any  of  its  contracts  which  may  be  by  them  entered 
into  by  which  those  entering  therein  shall  agree  to  be  assessed  specifically  for  inci- 
dental purposes  and  for  the  payment  of  exchange  services. 

MINERAL  SPRINGS  COMPANY. 

The  Wheeler  Mineral  Springs  Company. 
(Piled  April  5th,  1900.  Vol.  81,  Page  468.) 
THIRD.  Said  corporation  is  formed  for  the  purpose  of  preparing,  manufacturing, 
bottling,  buying,  selling,  vending,  dealing  in  and  furnishing  to  dealers  and  con- 
sumers, drinking  and  table  water;  carbonated  water;  carbonated  and  other  non-intoxi- 
cating beverages  and  to  do  all  things  incident  thereto,  and  fcr  the  further  purpose  of 
manufacturing,  buying,  selling  and  dealing  in  such  machinery,  tanks,  fountains, 
bottles  and  other  material  as  may  be  used  in  connection  with  or  in  or  about  the  prepa- 
ration, manufacture,  dealing  in  or  furnishing  such  water  or  beverages  and  to  do  all 
things  incident  thereto. 

OIL  COMPANY. 

The  Big  Four  Oil  Company. 
(Filed  April  2nd,  1900.  Vol.  81,  Page  455.) 
THIRD.  Said  corporation  is  formed  for  the  purpose  of  prospecting  and  drilling 
for  petroleum  oil  and  gas  and  other  minerals,  and  for  the  purpose  of  producing, 
handling  through  pipe  lines  or  otherwise,  refining  and  marketing  such  oil,  gas  and 
other  minerals  and  all  products  thereof,  and  for  the  purpose  of  leasing,  purchasing, 
acquiring  and  owning  real  estate  and  interests  therein,  for  the  purposes  aforesaid 
or  incidental  thereto. 

OPERA  HOUSE  COMPANY. 
The  Neilson  Opera  House  and  Entertainment  Company. 
(Filed  Jan.  22nd,  1900.     Vol.  81,  Page  210.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  furnishing  facilities  for 
holding  musical,  theatrical  and  other  entertainments;  provide  social  entertainments 
and  other  means  of  recreation  and  amusement  and  to  construct,  buy,  lease,  maintain 
and  own  such  buildings  and  all  such  real  and  personal  property  as  may  be  necessary 
or   convenient  to   the  successful   carrying  out  of  the  purposes  and  objects   of   said 
corporation. 

PRINTING  COMPANY. 

The  McDonald  Printing  Company. 
(Filed  January  31st,  1900.  Vol.  81,  Page  241.) 
THIRD.  Said  corporation  is  formed  for  the  purpose  of  publishing,  printing, 
binding  engraving  and  electrotyping  and  all  branches  of  said  business,  also  to  lease, 
rent  and  buy  real  estate,  machinery,  tools  and  fixtures  and  all  necessary  parapher- 
nalia, and  for  the  purchase  or  manufacture  of  paper,  printer's  ink  and  all  materials 
used  in  or  connected  with  said  business  enterprise. 

RAILROAD  CONSTRUCTION  COMPANY. 

The  Railroad  Construction  Company. 
(Filed  Oct.  8th,  1900.     Vol.  83,  Page  248.) 
THIRD      Said  corporation  is  formed  for  the  purpose  of  constructing  and  equip- 
ping electrict  and  steam  railways,  and  furnishing  entire  equipment  therefor. 

RATING  COMPANY. 
The  Rating  and  Collecting  Company. 
(Filed  April  21st,  1900.     Vol.  81,  Page  525.) 
THIRD      Said   corporation   is  formed  for  the  purpose  of   compiling,    collecting, 
publishing    and    selling    commercial    credit   rating   and   other    directories     collecting 
accounts,  furnishing  reports  and  abstracts  and  certificates  of  titled  and  the  perform- 
ing of  such  other  business  as  usually  pertains  to  the  publishing  of  reference  and  other 


Forms.  655 

Articles,  etc.,  for  Profit  — St..  ,f  Purposes. 

directories,   making   collections   and   furnishing'   financinl    reports    and    abstractl 
certificates  of  titles  with  the  right  to  acquire  and   hold    b  ir  purchase,  such 

real  and  personal  estate  as  may  be  necessary  to  the  carrying  on  of  said  business. 

STEAM  RAILROAD  COMPANY. 
The  Marietta,  Columbus  &  Cleveland  Railroad  Company. 
(Filed  Oct.  23rd,   1900.     Vol.  83,  Page  295.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  acquiring,  building,  main- 
taining  and   operating   a   railroad   in   the   State   of   Ohio,   with    all    cf   the    n< 
switches,  side  tracks  and  turnouts,   together  with  the  necessary  telegraph   an  I   tele- 
phone lines. 

Said  company's  railroad  is  to  begin  at  the  City  of  Marietta  in  the  county  of 
Washington;  thence  through  said  county  into  the  county  of  Athens,  and  thence 
through  said  county  into  and  through  the  county  of  Morgan  to  the  Town  of  Palos,  in 
Athens  county,  and  thence  passing  through  the  counties  of  Perry,  Fairfield 
Franklin  to  the  City  of  Columbus,  and  thence  through  said  Franklin  county 
counties  of  Delaware,  Morrow,  Know,  Ashland,  Holmes,  Wayne,  Medina,  and  Cuya- 
hogo,  to  the  City  of  Cleveland,  in  said  last  named  County. 

SANITARIUM  COMPANY. 

The  Toledo  Sanitarium  Company. 

(Filed  June  2nd,  1900.     Vol.  81,  Page  643.) 

THIRD.     Said  corporation  is  formed  for  the  purpose  of  using  and  applying  the 

remedies  for  alcoholic  and  narcotic  poisoning,  known  as  The  Springer  Gold  Cures;  to 

establish   and   conduct  one  or  more  sanitariums   for   the   treatment   and   cure  of   the 

liquor,  opium,  and  cocaine  habits,  nervous  diseases,  by  the  said   cures;  to  purchase, 

lease,  own  and  dispose  of  all  real  and  personal  property  essential  to  and  acquired  in 

the  conduct  of  the  business;  and  generally  to  do  and  perform  all  things  necessary 

and  incidental  thereto. 

SANITORIUM  COMPANY. 

The  Dr.  C.  E.  Sawyer  Sanitorium  Company. 
(Filed  March  23rd,  1900.     Vol.  81,  Page  421.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  erecting,  owning  and  con- 
ducting sanitoriums  for  the  receiving  of  and  caring  for  patients  and  for  the  medical, 
surgical  and  hygienic  treatment  of  such  patients,  and  for  instruction  of  nurses  in  the 
treatment  of  disease  and  hygiene. 

SHOE  COMPANY. 
The  Haas  Shoe  Company. 
(Filed  February  1st,  1900.     Vol.  81,  Page  246.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  purchasing  and  selling 
and  dealing  in  boo-ts  and  shoes  and  all  things  incident  thereto. 

SCENIC  RAILWAY  COMPANY. 
(Filed  Aug.  9th,  1900.  Vol.  83,  Page  115.) 
THIRD.  Said  corporation  is  formed  for  the  purpose  of  manufacturing,  operating 
and  selling  Scenic  and  Pleasure  Railways  of  improved  construction  covered  by  letters 
patent  of  the  United  State;  to  acquire  the  control  of  said  and  future  patents  upon  or 
in  relation  to  such  railways;  to  introduce  said  structures  into  public  use;  and,  in 
connection  with  said  business,  to  manufacture,  use  and  vend  such  articles  as  may  be 
conveniently  and  profitably  dealt  with  in  that  connection;  and  to  acquire  and  use 
such  property  as  may  be  necessary  or  convenient  for  the  aforesaid  business  of  the 
company. 

STATIONERY  AND  PUBLISHING  COMPANY. 

The  Bradley  and  Sorin  Company. 
(Filed  February  1st,  1901.     Vol.  83,  Page  633.) 
THIRD      Said  corporation  is  formed  for  the  purpose  of  a  general  wholesale  and 
retail  stationery  business  and  a  general  printing,  engraving,  publishing,  binding  and 
lithographing  business  and  a  wholesale  and  retail  office  supply  business. 


656  Forms. 

Articles,   etc.,  for  Profit  —  Statement  of  Purposes. 

TRANSIT  COMPANY. 

The  Lake  Transit  Company. 

(Filed  December  31st,  1900.     Vol.  83,  Page  514.) 

THIRD.     Said   corporation   is   formed   for   the   purpose   of   building,   purchasing, 

owning,  selling,  operating,  navigating  and  handling  vessels  and  all  kinds  of  vessel 

property   together    with    all    such    other   property,    and   all   such    appurtenances    and 

appliances  as  may  be  necessary,  useful  or  convenient  in  connection  with  the  use  of 

such  vessel  or  other  property;  and  of  doing  all  such  other  things  as  may  be  incident 

in  any  respect  to  any  of  the  above  enumerated  purposes. 

UNDERWRITING  COMPANY. 
The  Federal  Underwriting  Company. 
(Filed  May  2nd,  1900.     Vol.  81,  Page  556.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  acting  as  agent  for  fire, 
life,  accident  and  other  insurance  companies,  and  also  to  do  a  general  agency  busi- 
ness for  corporations  and  individuals. 

VETERINARY  COLLEGE  COMPANY. 

The  Cincinnati  Veterinary  College  Company. 

(Filed  October   18th,   1900.     Vol.  83,  Page  279.) 

THIRD.     Said  corporation  is  formed  for  the  purpose  of  promoting  education  in  the 

science  of  veterinary  medicine  and  surgery  by  providing  a  full  and  thorough  course 

of    instruction    by    means    of    lectures,    clinics,    demonstrations    and    otherwise   from 

competent  teachers  in  the  different  departments  of  veterinary  medicine  and  surgery. 

WALL  PLASTER  COMPANY. 

The  Akron  Wall  Plaster  Company. 

(Filed  February  4th,  1901.     Vol.  83,  Page  644.) 

THIRD.     Said  corporation  is  formed   for  the  purpose  of  manufacturing,   selling 

and  dealing  in  all  kinds  of  wall  plaster,  cement,  concrete  and  kindred  products,  and 

the  materials  entering  into  the  composition  or  manufacture  of  the  same,  and  doing 

all  things  incident  thereto. 

WINE  OR  LIQUOR  COMPANY. 
The  M.  Hommel  Wine  Company. 
(Filed  June  22nd,  1900.     Vol.  83,  Page  5.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  manufacturing  and  sell- 
ing at  wholesale  and  retail  spiritous  malt  and  vinous,  distilled  or  fermented  liquors, 
•wines  and  other  beverages. 

To  acquire  and  own  all  such  real  estate  and  personal  property  as  may  be  neces- 
sary or  convenient  to  the  successful  accomplishment  of  the  above  objects  and  purposes. 

WATER  TRANSPORTATION  COMPANY. 
The  Ohio  Cooperage  Transportation  Company. 
(Filed  April  7th,  1900.     Vol.  81,  Page  465.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  purchasing,   chartering, 
acquiring,  owning,  handling  or  operating  steamships,  vessels  and  other  vessel  prop- 
erty or  interest  therein;  purchasing,  constructing  or  owning  all  necessary  or  proper 
terminal  facilities,  including  all  real  estate  and  personal  property  as  may  be  suitable 
or  necessary  thereto  and  doing  all  such  things  as  may  be  properly  incident  to  the 
above  enumerated  purposes. 

FORM  OF  ARTICLES  OF  CORPORATION  NOT  FOR  PROFIT. 

Note.  —  Corporations  not  for  profit  may  have  a  capital  stock. 

THESE  ARTICLES  OF  INCORPORATION 

—  of  — 


The 


WITNESSETH,  That  we,  the  undersigned,    of  whom  are  citizens  of 

the  State  of  Ohio,  desiring  to  form  a  corporation,  not  for  profit,  under  the  general 
corporation  laws  of  said  State,  do  hereby  certify: 


Forms.  657 

Articles,  etc.,  not  for  Profit  —  Statement  of  Purposes. 


FIRST.     The  name  of  the  corporation  shall  be    

SECOND.     Said  corporation  is  to  be  located,  and  its  principal  business  transacted 

at ,  in County,  Ohio. 

THIRD.     The  purpose  for  which  said  corporation   is  formed  is    


IN  WITNESS  WHEREOF,  We  have  hereunto  set  our  hands,  this 
day  of ,  A.  D.  1 .  .  .  . 


Note.  —  For  acknowledgment  and  certificate)  see  articles  of  corporation  for  profit. 

FORMS  FOR  STATEMENT  OF  PURPOSE  OF  CORPORATIONS  NOT  FOR  PROFIT. 

ATHLETIC  CLUB. 
The  Business  Men's  Gym.  and  Athletic  Club. 
(Filed  April  6th,   1900.     Vol.  76,  Page  424.) 
THIRD.     The  purpose  for  which  said  corporation  is  formed  is  to  provide  means 
and  facilities  for  exercise  tending  to  promote  physical  culture,  also  rowing,  foot  ball, 
base  ball,  foot  racing,  wrestling,  boxing  and  other  athletic  sports,  for  the  recreation 
and  amusement  of  the  members  and  guests. 

ATHLETIC  CLUB. 
The  Oxford  Athletic  Club  of  Cincinnati,  Ohio. 
(Filed  February  1st,   1900.     Vol.   76,  Page  340.) 
THIRD.     The  purpose   for  which  said   corporation   is  formed   is   for   the   mutual 
benefit  of  all  its  members  by  promoting  an  interest  among  themselves  in  all  athletics, 
both  indoor  and  outdoor  athletics.     And  to  promote  social  intercourse  among  its  mem- 
bers.    This  association  is  formed  not  for  profit. 

BUILDERS'  EXCHANGE. 

The  Youngstown  Builders'  Exchange. 
(Filed  April  17th,  1900.  Vol.  76,  Page  438.) 
THIRD.  The  purpose  for  which  said  corporation  is  formed  is  to  maintain  and 
conduct  a  society,-  the  general  object  and  design  of  which  shall  be  to  cultivate 
friendly  social  and  business  relations  among  persons  connected  with  building  trades 
in  the  City  of  Youngstown,  Ohio,  and  vicinity;  to  provide  facilities  for  the  inter- 
change of  views,  and  the  avoidance  or  amicable  settlement  of  controversies  and  dif- 
ferences amongst  its  members  and  their  employes;  and,  in  general,  to  advance  and 
promote  all  legitimate  interests  of  the  building  trades  of  the  City  of  Youngstown. 
Ohio,  and  vicinity. 

CHRISTIAN  SCIENCE  CHURCH. 

First  Church  of  Christian  Scientist,  of  Springfield,  Ohio. 
(Filed  January  29th,  1900.  Vol.  76.  Page  335.) 
THIRD.  The  purpose  for  which  said  corporation  is  formed  is  to  provide  a  place 
of  worship,  for  its  members,  to  be  conducted  according  to  the  rules  and  discipline  of 
the  Christian  Science  Church;  to  promote  the  interest  of  Christian  religion,  and  to 
receive  and  hold  donations  and  bequests,  and  funds  arising  from  other  sources,  for 
the  benefit  of  said  corporation;  and  to  enjoy  all  the  other  incidental  rights  and  privi- 
leges of  a  society  organized  for  the  principal  purposes  above  mentioned. 

DEACONESS  HOME. 

The  Reformed  Deaconess  Home  and  Hospital  Association. 

(Filed  April  14th,   1900.     Vol.  81,  Page  433.) 

THIRD.     The  purpose  for  which  said  corporation  is  formed  is  not  for  profit,  but 

to  care  for  the  sick,  the  spiritually  and  physically  destitute  and  needy  and  engage  in 

such  other  forms  of  charitable  and  benevolent  work  which  may  commend  itself  from 

time  to  time  to  the  Association;  to  promote  the  interests  of  the  Christian  religion;  to 

receive  and  disburse  donations,  to  receive  and  hold  bequests  and  all   funds  arising 

from  other  sources  for  the  benefit  of  said  corporation. 

Note.  —  See  §  3707. 


658  Forms. 

Articles,  etc.,  not  for  Profit  —  Statement  of  Purposes. 


G.  A.  R.  POST. 
The  Jobes  Post  No.  157  G.  A.  R.  Dept.  Ohio. 
(Filed  April  2nd,  1900.     Vol.  76,  Page  419.) 
THIRD.     The  purpose  fcr  which  said  corporation  is  formed  is  for  patriotic  and 
charitable  purposes,  and  not  for  profit. 

FOURTH  To  preserve  and  strengthen  those  kind  and  fraternal  feelings  which 
bind  together  the  Soldiers,  Sailors  and  Marines,  who  united  to  suppress  the  late 
rebellion,  and  to  perpetuate  the  memory  and  history  of  the  dead 

FIFTH  To  assist  such  former  comrades  in  arms  as  need  help  and  protection,  and 
to  extend  needful  aid  to  the  widows  and  orphans  of  those  who  have  fallen. 

SIXTH  To  maintain  true  allegiance  to  the  United  States  of  America,  based  upon 
a  paramount  respect  for,  and  fidelity  to  its  Constitution  and  laws,  and  for  other  pur- 
poses mentioned  in  the  preamble  setting  forth  the  objects  of  said  order. 

HOME  FOE,  THE  AGED. 

The  Old  Ladies'  Home  Association. 
(Filed  December  20th,  1900.  Vol.  85,  Page  16.) 
THIRD  The  purpose  for  which  said  corporation  is  formed  is  to  establish  and 
maintain  a  'home  for  aged  women  and  such  other  persons  as  may  be  admitted  to  such 
a  Home  To  buy  and  to  hold  real  estate  for  the  use  of  said  Home,  and  sell  the  same 
when  deemed  necessary,  to  build,  improve  and  maintain  buildings  for  said  Home,  to 
receive  hold  use  and  dispose  of  gifts,  donations  and  bequests  for  the  benefit  of  said 
Home,  and  to  do  all  things  necessary  to  establish,  maintain  and  carry  on  such  Home. 

Note.  —  See  §  3767. 

MUSICAL  CLLB. 

The  Arion  Club  Company. 
(Filed  June  23rd,  1900.     Vol.  83,  Page  6.) 
THIRD      Said    corporation   is    formed   for   the    purpose   of    the   vocal    study,    the 
rehearsal  and  the  private  and  public  rendition  of  concerted  music  for  male  and  mixeu 
voices,  also  the  employment  and  presentation  of  musical  artists. 

MUSICAL  CLUB. 

The  Lambs'  Musical  Club  of  Cincinnati,  Ohio. 

(Filed  February  4th,   1901.     Vol.   85,  Page  72.) 

THIRD      The  purpose  fcr  which  said  corporation  is  formed  is  the  study  and  cul-  ■ 

ture  of  vocal  and  instrumental  music,  and  the  promotion  of  social  intercourse  of  its 

members  and  all  things  incident  thereto. 

POLITICAL  CLUB. 

The  Young  Men's  Progressive  Club. 
(Filed  April  14th,  1900.     Vol.  76,  Page  432.) 
THIRD      The  purpose  for  which  said  corporation  is  formed  is  for  the  organiza- 
tion of  a  political  and  social  club;  to  promote  the  study  of  political  institutions  and 
the  science  of  government  and  to  provide  a  place  where  its  members  may  enjoy  the 
society  of  ea.cn  other  and  their  friends. 

PUBLIC  LIBRARY. 
The  Conneaut  Free  Public  Library  Association. 
(Filed  February  5th,   1900.     Vol.  76,  Page  343.) 
THIRD      Th*  purpose  for  which  said  corporation  is  formed  is  the  owning,  manag- 
ing   leasing  buying,   receiving  property  in  trust  for,   and  accepting  and   extending 
donations  for  a  Free  Public  Library  in  the  village  of  Conneaut,  Ashtabula  County, 
Ohio,  and  doing  all  things  necessary  and  incidental  to  the  conducting  of  said  library. 

SINGLE  TAX  LEAGUE. 
The  National  Land  and  Tax  League  of  America. 
(Filed  Aug.  29th,  1900.     Vol.  76,  Page  573.) 
THIRD.     The  purpose  for  which  said  corporation  is  formed  is  „„„j 

a  To  institute  fundamental  reforms  in  the  study  and  promulgation  of  sound 
principles  and  correct  methods  concerning  Land,  Labor,  Money,  Taxation  and  otnei 
questions  of  social  and  economic  importance. 


659 

Articles,   etc.,  of  Ruling   C  ions. 

b.  To  found  and  maintain  any  school,  college  or  university  for  said  purpose. 

c.  To  maintain  a  Lecture  Bureau  for  said  purpose. 

d.  To  establish  and  maintain  any  daily,  weekly  and  monthly 
in  furtherance  of  said  purpose. 

e.  To  establish  minor  leagues,  clubs  and  societies  and  other  steps  necess... 
carry  out  said  purposes. 

TEMPERANCE  SOCIETY. 
The  Bishop  Rappe  Temperance  Society. 
(Filed  April  11th,  1900.     Vol.  76,  Page  430.) 
THIRD.     The   purpose  for   which   said  corporation  is   formed   is   to   promote    the 
cause  of  total  abstinence. 

YOUNG  MEN'S  CHRISTIAN  ASSOCIATION. 

(Filed  December  29th,   1893.     Vol.  58,  Page  687.) 

THIRD.  The  purpose  for  which  said  corporation  is  formed  is  to  promote  thf* 
religious,  intellectual,  moral,  social  and  physical  culture  of  the  young  men  of  Ironton 
by  the  employment  of  the  appliances  and  methods  commonly  used  by  similar  asso- 
ciations of  the  country  of  same  name. 

YOUNG  MEN'S  CHRISTIAN  ASSOCIATION. 
The  Young  Men's  Christian  Association,  of  Portsmouth,  Ohio. 
(Filed  October  2nd,  1893.     Vol.  58,  Page  600.) 
THIRD.     The    purpose    for    winch    said    corporation    is    formed    is    the    physical, 
mental,  social  and  spiritual  improvement  of  young  men. 

YACHT  CLUB. 
The  Lakewood  Yacht  Club. 
(Filed  December  21st,  1900.     Vol.  85,  Page  18.) 
THIRD.     The  purpose  for  which  said  corporation  is  formed  is  the  encouragement 
of  yachting,  the  designing  and  building  of  yachts,  and  the  promotion  of  social  rela- 
tions of  those  interested  in  yachting. 


§  3236. 


FORM   OF   ARTICLES   FOR   INCORPORATION   OF   PRINCIPAL    OR   RULING 
ORGANIZATION   OVER   SUBORDINATE   ORGANIZATIONS. 

(Filed  March  14th,  1901.     Vol.  82,  Page  273.) 

THESE  ARTICLES  OF  INCORPORATION 

—  of  — 

THE  TEAM  OWNERS'  INTERNATIONAL  UNION  OF  AMERICA. 

WITNESSETH,  That  we,  the  undersigned,  all  of  whom  are  citizens  of  the  State 
of  Ohio,  and  all  of  whom  have  been  duly  elected  as  members  of  the  Principal  Organi- 
zation, 'by  the  subordinate  organizations  heretofore  organized,  desiring  to  form  a 
corporation,  not  for  profit,  under  the  general  corporation  laws  of  said  State,  do  hereby 
certify: 

FIRST.  The  name  of  said  corporation  shall  be  THE  TEAM  OWNERS'  INTER- 
NATIONAL UNION  OF  AMERICA. 

SECOND.  Said  corporation  is  to  be  located,  and  its  principal  business  transacted 
at  the  time  of  incorporation  at  Toledo,  in  Lucas  County,  Ohio. 

THIRD.  The  purpose  for  which  said  corporation  is  formed  is  to  encourage  a 
higher  standard  of  skill  among  our  members,  to  cultivate  feelings  of  friendship 
among  our  members,  to  assist  each  other  in  securing  employment,  to  reduce  the  hours 
of  labor,  to  secure  a  higher  standard  cf  wages  for  work  performed  by  legal  and  proper 
means,  and  to  elevate" the  moral,  intellectual  and  social  condition  of  our  members, 
and  also  to  further  the  interest  of  organized  labor,  and  to  be  the  principal  or  ruling 
organization  over  subordinate  organizations. 


660  Forms. 

Amendment   of  Articles,   etc. 

FOURTH.     The  principal  officers  of  THE  TEAM  OWNERS'  INTERNATIONAL 
UNION  OF  AMERICA,  and  their  residences  are 

John  S.  Rowe,  of  Toledo,  Ohio,  President. 
Arthur  W.  Welever,   of  Toledo,   Ohio,    1st  Vice-President. 
Frank  Cairl,  of  Toledo,  Ohio,  2nd  Vice-President. 
Joseph  Manor,  of  Toledo,  Ohio,  3rd  Vice-President. 
Elmer  L.  Umphenour,  of  Toledo,  Ohio,  Trustee. 
J.  M.  Smith,  of  Toledo,  Ohio,  Trustee. 
Isaac  Davis,  of  Toledo,  Ohio,  Trustee. 
M.  J.  Fallon,  of  Toledo,  Ohio,  Secretary-Treasurer. 
IN  WITNESS  WHEREOF,  We  have  hereunto  set  our  hands,  this   13th  day  of 
March,  A.  D.  1901. 

(Acknowledgment,  etc.,  as  in  other  cases.) 


§  3237. 
(See  form  for  Steam  Railroad  Company,  page  .  .  .  .) 

Note.  —  This  section  should  be  followed  when  necessary  in  the  organization  of  railroad, 
street  railroad,  avenue,  turnpike,  common  carrier,  bridge,  pipe  line,  natural  gas,  telegraph 
and  telephone  companies. 


§  3238. 
(See  forms  of  acknowledgment  and  certificates  under  §  3236,  page    .  .  .  .) 

FORM  FOR  CONSENT  TO  USE  OF  NAME. 

CERTIFICATE. 

The Co.  consents  to  the  use  of  the  name,  the 

Co.  by  a  corporation  proposed  to  be  formed  by 

,    ,    ,    ,  and    whose 

articles  of  incorporation  are  filed  herewith. 

IN  WITNESS  WHEREOF,  Said  the Co.  has 

caused  its  seal  to  be  hereto  affixed  and  its  name  signed  hereto  this day  of 

,  190. . 

The Co. 

By , 

President. 


Secretary. 


§  3238a. 


FORMS   AND    RECORD    ENTRIES    FOR    THE    AMENDMENT    OF    ARTICLES    OF 

INCORPORATION. 

The  articles  of  incorpoi-ation  formed  under  general  laws,  may  be  amended  as 
follows: 

(a)  So  as  to  change  the  corporate  name;  but  no  corporation  shall  change  its  name 
by  amendment  to  one  already  appropriated,  or  to  one  likely  to  mislead  the  public. 

(b)  So  as  to  change  the  location  of  a  corporation. 

(c)  So  as  to  modify,  enlarge  or  diminish  the  purposes  for  which  the  corporation 
is  formed;  but  the  capital  stock  of  a  corporation  cannot  be  increased  or  diminished 
by  amendment;  nor  can  its  original  purpose  be  substantially  changed  by  amendment; 
nor  shall  any  corporation  by  amendment  adopt  a  purpose  which  is  unlawful. 

(d)  So  as  to  add  thereto  anything  omitted  from,  or  which  might  lawfully  have 
been  provided  for  in  such  articles  originally. 

1.  Such  amendments  can  only  be  made  by  a  vote  of  the  holders  of  three-fifths  of 
the  capital  stock  then  subscribed,  of  a  corporation  having  a  capital  stock;  or  by  a 
vote  of  three-fifths  of  the  members  of  a  corporation  having  no  capital  stock. 

2.  Such  amendments  may  be  made  at  any  meeting  of  the  stockholders  or  members 
of  a  corporation,  of  which  meeting,  and  of  the  business  to  come  before  the  same, 
thirty  days'  notice  has  been  given  by  a  majority  of  the  trustees  or  directors  of  said 
corporation,  in  a  newspaper  published  and  of  general  circulation  in  the  county 
wherein  the  corporation  is  located.     Such  notice  may  be  in  the  following  form: 


Forms.  661 

Amendment  of  Articles,  etc. —  Waivers,  etc. 


NOTICE  No.   1. 

NOTICE  is  hereby  given  to  the  stockholders  (or  members)  of  (name  of  corpora- 
tion), that  on ,  the day  of 1 at  (place  of 

meeting),  there  will  be  a  meeting  of  the  stockholders  (or  members;  ol   (name  of  the 
corporation),  to  consider  the  subject  of  amending  the  articles  of  incorporation  of  said 
(name  of  the  corporation).     (The  contemplated  amendment  may  be  set  forth   la 
notice,  but  it  is  probably  unnecessary.) 

(Signatures   of   a   majority   of 
the  board  of  directors  or  trustees.) 

A  copy  of  the  notice,  together  with  proof  of  publication,  should  be  entered  in  the 
corporate  minutes. 

Whenever  ALL  of  the  stockholders,  or  members,  consent  thereto  in  writing,  such 
notice  may  be  waived.     Such  waiver  may  be  in  the  following  form: 

WAIVER  OF  NOTICE  No.   1. 

,  Ohio 1  .  .  .  . 

We,  the  undersigned,  being  all  the  stockholders  (or  members)  of  (name  of  the 
corporation),  do  hereby  waive  the  giving  of  the  notice  required  by  law  of  the  meet 
to  be  held  by  the  stockholders  (or  members)  of  said  (name  of  the  corporation),  on 
(time  of  the  meeting),  at  (place  of  the  meeting),  which  meeting  has  been  called  by  a 
majority  of  the  board  of  directors  (or  trustees)  of  said  (name  of  the  corporation)  for 
the  purpose  of  considering  the  subject  of  amending  the  articles  of  incorporation  of 
said  (name  of  the  corporation).  (The  proposed  amendment  may  also  be  set  forth  in 
the  waiver);  thus,  beginning  at  the  *  "  so  as  to  change  the  name  of  said  corporation 
from  (its  present  name),  to  (the  name  proposed)." 


(Names   of   all   the  stockholders 
[or  members]  of  the  corporation.) 

This  waiver  should  be  entered  on  the  minutes.  When  signed  by  stockholders,  the 
number  of  shares  of  stock  held  by  each  should  appear  opposite  their  respective  names. 

3.  Such  notice  having  been  given,  or  waiver  made,  a  resolution,  providing  for  the 
amendment,  must  be  offered  at  the  meeting  held  to  consider  the  subject  of  making 
same.  This  resolution,  in  order  that  the  same  may  be  carried,  must  receive  a  three- 
fifths  vote  of  the  stockholders  or  members.     It  may  be  in  the  following  form: 

AMENDMENT. 

Resolved,  That  the  articles  of  incorporation  of  (name  of  the  corporation)  be  and 
the  same  are  hereby  amended,  so  that  (set  forth  the  proposed  amendment). 

4.  Said  resolution  having  carried  by  a  three-fifths  vote,  before  the  amendment 
can  take  effect,  notice  thereof  must  be  given  by  the  secretary  of  the  corporation 
for  three  consecutive  weeks  in  some  newspaper  of  general  circulation  in  the  county 
wherein  the  corporation  is  located.     This  notice  may  be  in  the  following  form: 

NOTICE  No.  2. 
TO  WHOM  IT  MAY  CONCERN: 

Notice  is  hereby  given,  that  on the day  of 

1 at  a  meeting  of  the  stockholders  (or  members)  of  (name  of  the  corporation), 

held  at  (place  of  meeting),  it  was.  by  a  vote  of  more  than  three-fifths  of  its  stock- 
holders (or  members),  Resolved,  That  (set  forth  the  resolution  adopted). 


(Secretary  cf   [name  of  corporation].) 


This  notice  may  be  waived  whenever  ALL  the  stockholders,  or  members,  consent 
thereto  in  writing.     This  waiver  may  be  in  the  following  form: 

WAIVER  OF  NOTICE  No.  2. 

We,  the  undersigned,  being  all  of  the  stockholders  (or  members)  of  (name  of  the 
corporation),  do  hereby  consent  in  writing,  that  the  notice  by  publication  required  by 
law,  of  the  amendment  made  to  the  articles  of  incorporation  of  said  (name  of  the  cor- 

LAW  GOV.    TRIV.   COR. —  40. 


662  Forms. 

Corporation  Deed. 


poration),  at  a  meeting  of  its  stockholders  (or  members),  held  on ,  the 

day  of    ,    19.  .,   at   (place   of   meeting),   be  and   the  same   is 

hereby  waived. 

(Names  of  ALL  the  members  or  stockholders;  when  the  waiver  is  signed  by  stock- 
holders, the  number  of  shares  of  stock  held  by  each  should  appear  opposite  their 
respective  names.) 

This  waiver  should  also  be  entered  on  the  minutes. 

5.  In  addition  to  the  giving  of  the  notice,  or  the  making  of  the  waiver,  aforesaid, 
a  copy  of  such  amendment,  when  adopted,  with  a  certificate  thereto  affixed,  signed  by 
the  president  and  secretary  of  the  corporation,  and  sealed  with  the  corporate  seal,  if 
any  there  be,  stating  the  fact  and  the  date  of  the  adoption  of  such  amendment,  and 
that  such  copy  is  a  true  copy  of  the  original,  must  be  recorded  in  the  office  of  the  secre- 
tary of  state  before  such  amendment  shall  take  effect.  The  following  is  a  form  in 
which  such  copy  and  certificate  may  be  made: 

COPY  AND  CERTIFICATE  OE  AMENDMENT. 
Copy  of  Amendment. 
Resolved,  That  the  articles  of  incorporation  of  (name  of  the  corporation)  be  and 
the  same  are  hereby  amended  so  that  (set  forth  the  amendment). 

Certificate  of  Amendment. 
TO  THE  SECRETARY  OF  STATE,  COLUMBUS,  OHIO: 

The  (name  of  the  corporation),  acting  by  its  President  and  Secretary,  hereby  cer- 
tifies that  the  foregoing  is  a  true  copy  cf  the  original  amendment  to  the  articles  of 
incorporation  of  (name  of  the  corporation),  which  was  adopted  by  the  votes  of  the 
owners   of  more  than   three-fifths  of  its  capital  stock   (or  members),   at  a  meeting 

thereof,   held  on    the day  of    ,    19 .  . ,   at   (place 

of  meeting),  *  pursuant  to  notice,  duly  given  according  to  law.  (If  the  notice  of  such 
meeting  was  waived  begin  at  the  *  and  say:  "  notice  of  which  meeting  was  duly 
waived  in  writing  as  authorized  by  law.") 

IN  TESTIMONY  WHEREOF,  the  President  and  Secretary  of  (name  of  the  corpo- 
ration), acting  for  and  on  behalf  of  said  corporation,  have  hereunto  set  their  hands 
and  caused  the  seal  of  said  corporation  to  be  hereto  affixed  (if  the  corporation  has  a 

seal),  this day  of ,  A.  D.  19 .  . 

(Corporate  Seal.)  , 

(Name  of  the  corporation.)  . 

By , 

President. 

> 

Secretary. 

Xote.  —  This  "Copy  and  Certificate  of  Amendment"  must  be  filed  and  recorded  in  the 
office  of  the  secretary  of  state.  The  fee  for  such  filing  and  recording  is  $5.00.  The  other 
papers  should  appear'  in  the  minutes  of  the  corporate  meeting,  but  should  not  be  filed  with 
the  secretary  of  state. 


§  3239. 
CORPORATION  DEED. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  etc.,  *  *  *  * 

#  *  #  *  *  *  *  *  *  *  v  * 

IN  WITNESS  WHEREOF,  The  said  party  of  the  first  part  has  caused  these  pres- 
ents to  be  signed  in  its  name  by  its  President  (or  other  officer)  and  its  corporate  seal 
to  be  affixed  (if  it  has  a  seal)  the  day  and  year  first  above  written. 

Executed  and  delivered  The Co. 

in  the  presence  of  By .  • , 

President. 

State   of   Ohio,  }  gg  . 

County   of \ 

Be  it  remembered,  that  on  the day  of 1901,  personally 

appeared  before  me  John  Doe,  a  notary  public  in  and  for  said  county, 

who  is  the  president  of  The Co.,  and  acknowledged  that  the 


Forms.  663 

Opening  Books  of  Subscription. 

name  of  said  company  was  subscribed  to  tbe  forego;  rumenl    by    oil 

president  thereof,  that  the  seal  affixed  thereto  is  the  seal  o 
said  name  was  subscribed,  and  said  seal  affixed  to  said  instrument    by   the 
and  authority  of  said  company  and  as  its  voluntary  act  and   de> 
therein  mentioned. 


President. 

IN  WITNESS  WHEREOF,  I  have  hereunto  subscribed  my  name  and  i 
official  seal  this day  of 1901. 


Notary  Public  in  and  for  the  County  of ,  Ohio. 

SHORT  FORM  OF  ACKNOWLEDGMENT. 

Be  it  remembered,  that  on  the day  of 1901.  personally 

appeared  before  me,  John  Doe,  a  notary  public  in  and  for  said  County,  The 

Co.  by ,  its  president,  and 

its   secretary,   and   acknowledge  the  signing   of   the   foregoing   instrument   to   be   its 
voluntary  act  and  deed  for  the  purpose  therein  mentioned. 

Note.  —  A  seal  is  unnecessary,  but  if  the  corporation  has  one  ii  9hould  be  used.  Tin- 
words  successors  and  assigns  should  lie  used  instead  "t  beirs  and  assigns  in  deeds,  etc.,  t.»  or 
by  corporations. 


§  3240. 
REGULATIONS  AS  TO  TRUSTEES  OF  CORPORATIONS  NOT  FOR  PROFIT. 

(See  §  3249.) 


§  3241. 

RECORD  OF  PROCEEDINGS  OF  CORPORATION  NOT  FOR  PROFIT. 

(See  instructions  issued  by  Secretary  of  State  and  forms  under  §  3252.) 


S  3242. 


ORDER  FOR,  AND  WAIVER  OF  NOTICE   OF  THE   OPENING  OF   BOOKS   OF 

SUBSCRIPTION. 

Ohio 190.  . 

The   undersigned    ("  all,"    or   a   majority)    of    the   subscribers    to    the   articles    of 

incorporation  of  The Company,  do  hereby  order  that  books  be 

opened    for    subscriptions    to    the    capital    stock    of    said    company,    at    the    office    of 

in  the  city  of County  of Ohio. 

on  'the day  of 190.  . ,  at o'clock    .  .   M.:  and  we  do 

hereby  waive  in  writing  the  notice  by  publication  of  the  time  and  place  of  such  open- 
ing of  books  of  subscription,  required  by  law. 


Incorporators. 


Note  —If  all  the  incorporators  are  not  present  to  waive  notice,  or  it  publication  i- 
desired  the  order  should  he  changed  accordingly,  and  the  notice  following  should  be  pub- 
lished at  least  thirty  days  before  the  books  are  opened.     Tbe  corporate  records  musl   show 

the  proceedings  of  incorporators  under  this  section.     .Minutes  of  meetings    see  form-  under 
§  3254. 


664  Forms. 

Subscription  to  Capital  Stock. 

NOTICE  BY  PUBLICATION. 

Notice  of  Opening  cf  Subscription  Books  of  The Co. 

Pursuant  to  an  order  this  day  made,  books  of  subscription  to  the  capital  stock  of 

The Company  will  be  opened  at  the  office  of at 

the  City  of ,  County  of ,  Ohio,  at o'clock,  P.  M. 

,  Ohio, , 

,  190..  


Incorporators. 


§  3243. 

SUBSCRIPTION  BOOKS. 

SUBSCRIPTION  TO  THE  CAPITAL  STOCK 

—  of  — 

The Company. 

We,  the  undersigned,  do  hereby  subscribe  for  the  number  of  shares  of  the  capital 

stock  of  The Company  set  opposite  our  names,  and  do  agree 

to  pay  therefor  the  cum  of Dollars  per  share,  ten  per  cent,  on  the  signing 

of  this  subscription  and  the  balance  on  the  call  of  the  Board  of  Directors. 

Names.  Shares. 


Note.  —  Ten  per  cent,  of  the  capital  stock  must  be  subscribed  before  directors  are  elected, 
ten  per  cent,  of  the  amount  subscribed  must  be  paid  in  at  the  time  of  making  the  subscrip- 
tions. The  incorporators  are  liable  (§  3244)  until  ten  per  cent,  of  the  capital  stock  is  paid  in. 
The  directors  are  liable  if  elected  before  ten  per  cent,  is  subscribed.  (47  O.  S.  525).  For 
minutes  of  meetings,  see  forms  under  §  3254. 

PRELIMINARY  SUBSCRIPTION. 

Note.  —  Promoters  of  corporations  frequently  obtain  preliminary  subscriptions  under  the 
following  form: 

SUBSCRIPTION   TO   CAPITAL   STOCK   PRIOR  TO   ORGANIZATION. 

WHEREAS,  It  is  proposed  to  organize,  under  the  laws  of  the  State  of  Ohio,  a 

corporation  to  be  known  as  The Co.,  or  by  such  other  name 

as  the  parties  in  interest  may  determine;  and, 

WHEREAS,   It   is   proposed   that   said   company   shall   have   a   capital    stock   of 

Dollars,    divided   into    shares   of    Dollars   each,    and 

shall  transact  the  business  of 


NOW,    THEREFORE,    The    signers    hereto,    in    consideration    of    their    mutual 

promises,  do  severally  agree  to  and  with  each  other,  and  with 

the  promoter  or  founder  of  said  Company,  that  they  will  take,  and  they  do  hereby 
severally  subscribe  to  the  capital  stock  of  said  Company  to  the  number  of  shares  set 
opposite  their  respective  names. 

THIS  AGREEMENT  is  conditioned  upon  the  procuring  by  said of 

valid  subscriptions  of  at  least Dollars  to  said  capital  stock. 

Dated  at ,  190.  . 

Names.  Shares. 


Forms.  665 

Subscription   t^   Stork  —  Stockholders'  Meetings. 

§  3244. 
CERTIFICATE  OF  SUBSCRIPTION  OF  TEN  PER  CENT. 
The  . Company. 

CERTIFICATE  OF  SUBSCRIPTION. 

Ohio ,   190.  . 

TO  THE  SECRETARY  OF  STATE,  COLUMBUS,  OHIO: 

We,   the  undersigned  incorporators  of  The    Com- 
pany,  do  hereby  certify   that  on  the    day  of    190.  . ,   all 

the  incorporators  of  said  Company  did  order,  in  writing,  that  books  be  opened  for 
subscriptions  to  the  capital  stock  of  said  Company,  at 

on  the    day  of ,   190 .  . ,  at o'clock    ....    M. ;  and,   at 

the  same  time,  did  waive,  in  writing,  the  notice  by  publication  of  the  time  and  place 
of  such  opening  of  books  of  subscription,  required  by  law;  and,  further,  said  books 
having  been  opened  at  the  time  and  place  ordered,  that  ten  per  cent,  of  the  capital 
stock  of  said  Company  has  been  subscribed. 


Incorporators. 

Note*  —  Whenever  ton  per  cent,  of  the  capital  -tuck  has  beer  subscribed,  this  blank 
("Certificate  of  Subscription")  should  be  filled  oul  properly,  according  to  the  facta  recited 
therein,  subscribed  by  the  incorporators,  and  forwarded  to  the  Secretary  of  State,  at  Colum- 
bus, Ohio.  (See  section  '.vlA-l,  Revised  Statutes  of  Ohio.)  With  it  rausl  be  senl  the  sum  of 
$2.00,  the  fee  due  the  State  for  recording,  indexing  and  furnishing  certified  copy  of  9ame. 

NOTICE  OF  FIRST  MEETING  OF  STOCKHOLDERS. 

Notice  is  hereby  given  that  the  first  meeting  of  the  stockholders  of  The 

Company  will  be  held  at  the  office  of ,    

Ohio,  at   ....  o'clock   ....   M.  on  the day  of 190 .  . ,  for  the 

purpose  of  electing  directors  and  transacting  such  other  business  as  may  come  before 
the  meeting. 


Incorporators. 

Note. The  foregoing  notice  should  be  published  at  leasl  thirty  day-  before  the  day  set 

for  the  meeting,  unless  notice  is  waived  in  writing  bj   all  subscribers  to  stock.     For  mi 
of  meetings,  see  forms  under  §  3254. 

WAIVER  OF  NOTICE  OF  FIRST  STOCKHOLDERS'  MEETING. 

We,  the  undersigned,  being  all  the  subscribers  to  the  capital  stock  of  The 

Company,  and  being  all  this  day  present  in  person  or  by  proxy 

at  the  first  meeting  of  the  stockholders  of  said  company,  at  the  office  of 

at         Ohio,  at    ....    o'clock    ....    M.,   do   hereby  waive  the  notice  of  such 

meeting  required  by  law. 

Stockholders.  Proxies.  Shares. 


FORM  OF  STOCKHOLDER'S  PROXY. 

KNOW  ALL  MEN  BY  THESE  PRESENTS.  That  I do 

hereby   constitute   and   appoint    .....    to    be   my   lawful    attorney. 

substitute  and  proxy  for  me,  and  in  my  name  to  vote  upon  all  the  stock  held  by  me 


666  Forms. 

Articles,  etc.,  with  Limited  Voting  Power. 

in  The Company  at  the  meeting  of  the  Stockholders  of 

such  corporation  to  be  held  on  the day  of ,  190 .. ,  and  at  any 

adjourned  meeting  thereof,  as  fully  and  with  the  same  effect  as  I  might  or  could  do 
were  I  personally  present  at  such  meeting,  giving  to  said  attorney  and  proxy  full 
power  of  substitution;  and  I  hereby  revoke  any  proxies  heretofore  given  by  me  to 

any  person  or  persons  whatsoever,  this  proxy  to  continue  in  force  until  the 

day  of ,  190.  .,  unless  sooner  revoked. 

IN  WITNESS  WHEREOF,  I  have  hereunto  set  my  hand  this day  of 

190. . 


SHORT  FORM  OF  PROXY. 

The Co. 

I, ,  of  the  city  of ,  State  of ,  being 

the  holder  of    shares  of  stock  of  the  above-named   company,  do  hereby 

appoint ,  of ,  as  my  proxy  to  vote  for  me 

and  on  my  behalf  at  the  meeting  of  stockholders  of  the  above-named  company,  to  be 
held  on  the day  of 190 .  . 


Note.  —  By  appropriate  words  a  proxy  may  be  made  general   or  limited  as  the   stock- 
holder giving  the  same  may  desire. 


§  3245. 
CERTIFICATE  OF  ELECTION. 

We,  the  undersigned,  being  the  only  subscribers  to  the  articles  of  incorporation 

of  The Co.  present  at  the  first  meeting  of  the  stockholders  of 

said  corporation,  held  at  the  office  of ,  on  the .    day  of 

,  190.  . ,  at  ....  o'clock  .  .  .  ,M.,  do  hereby  certify,  that  at  an  election  for 

directors  held  at  such  meeting,  and  at  which  we  acted  as  inspectors  of  election, 

shares  of  stock  were  represented,  and  ....  votes  were  cast  in  favor  of , 

.  .  .  .votes  in  favor  of    (and  so  on  for  each  candidate).     And  that  at 

said  election , ,    , ,  and 

were  each  duly  elected  to  the  office  of  director  of  said  corporation,  to 

hold  their  said  offices  until  the  next  annual  election  of  directors,  or  until  their  suc- 
cessors are   elected   and   qualified;   and  we   do   hereby   appoint    ,   the 

day  of ,  190 .  . ,  at o'clock  ....   M.,  as  the  time,  and 

as  the  place,  for  holding  the  first  meeting  of  said  directors. 


For  minutes  of  meetings,  see  forms  under  §  3254. 


Incorporators. 


8  3245a. 


S 

FORM    FOR   ARTICLES    FOR    CORPORATION   IN    WHICH   VOTING    POWER    IS 

LIMITED. 

Xotf.  —  Add  to  item  fourth  of  the  articles  the  following: 

Provided,  that  each  stockholder,  irrespective  of  the  amount  of  stock,  shall  be  entitled  to 
one  vote,  and  no  more,  at  any  election  of  directors  or  upon  any  subject  submitted  at  a  stock- 
holders' meeting. 


§  3246. 
NOTICE  OF  MEETING  OF  STOCKHOLDERS. 

Notice  is  hereby  given  that  a  meeting  of  the  stockholders  of  The 

Co.  will  be  held  at  the  office  of  the  Company  on  the day  of , 

190.  . ,  at o'clock  ....   M.,  for  the  purpose  of  electing  directors  and  trans- 


667 

Oniceis — Oath,  Bond,   Vacancies. 
acting  such  other  business  as  may  com 

by 

Dated 

,  Ohio,  

,   190.  . .  .y. 

Note.  —  The  notice  of  the  meeting  should  state  bj   ■•  hom  the  i 
can  go  into  records.     If  called  l>\   the  directors,  their  records  should  also  ii 

the  secretary  or  proper  officer  refuses  to  send  notices,  i\\<>  membi 
the  same,  signing  their  own  name-. 

Notice  should  be  given  ten  days  before  the  time  Bel    for  the  meeting.     The 
special  meeting  should  Btate  clearlj  the  business  to  l>e  transacted.     Any  notice  i 
by  all  the  stockholders. 

For  minutes  of  meetings,  see  forms  under  •;  3254. 


§  3247. 
OATH  OF  DIRECTORS. 


State   of   Ohio,  ) 

County  of \   ss' 


and    being  first   duly  sworn,   say  they  will   faithfully  discharge 

their  duties  as  directors  of  the Co.,  to  the  best  of  their  ability. 


Sworn  to  before  me  and  subscribed  in  my  presence,  this day  of 

190.  . 


(Seal)  Notary  Public County,  O. 

Note. —  xhe  better  practice  i-  to  write  this  oath  in  the  corporate  records,  bu1   if 
written  it  should  he  copied  in  the  records. 

For  minutes  of  meetings,  see  forms  under  §  3254. 

BOND  OF  OFFICERS. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That as  principal. 

an(j  and    as   sureties,  are  held   and  firmly 

bound  unto  The Co.  in  the  sum  of for  the  payment 

of  which  they  severally  bind  themselves,  their  heirs,  executors  and  administrators. 

Provided,    however,    the    conditions    of    this    allegation    is    such,    that    whereas. 

'.  .  .  has  been  duly  elected of  The 

Co      Now    if  the  said shall  faithfully  perform  all  the  duties  cf 

said  office  as  provided  by  the  regulations  and  by-laws  of  said  company,  and  by  the 
laws  of  Ohio,  then  this  obligation  shall  be  void,  otherwise  it  shall  remain  in  full 
force  and  effect. 

IN  WITNESS  WHEREOF,  We  have  hereunto  subscribed  our  names  this 

day  of ,  190.  . 

Principal. 


Sureties. 
Note  —If  the  records  of  the  corporation  do  not    show  the  duties  of  the  office! 
should  be"  set  out  in  the  bond.     If  desirable,  a  clause  may  be  inserted  to  keep  the  bond  in 
force  so  long  as  the  principal  may  hold  the  office,  whether  by  subsequent  election  or  othei      - 


§  3248. 
HOW  VACANCY  IN  BOARD  FILLED 
NoTE  _r  frequently  happens  that  by  reason  of  a  change  of  ownership,  red  to 

elect  anew  board  of  directors!     In  such  case  care  should  be  exercised  so  as  to  have 
all  the  time     To  illustrate,  if  there  are  five  directors,  two  should  r.  sign,  stock  transferred  to 


668  Forms. 

Regulations  of  Corporations  for  Profit. 

persons  to  be  elected,  a  vacancy  declared  to  exist  and  same  filled  by  appointment  and  the 
appointees  should  immediately  qualify  by  taking  oath  for  faithfully  performing  their  duties. 
Then  two  more  resignations  can  be  received  and  the  vacancies  filled  until  the  old  board  is  out 
and  a  new  one  in.  If  all  the  resignations  come  m  at  once,  the  stockholders  must  fill  vacancies. 
Of  course  all  may  tender  resignations  to  take  effect  on  appointment  of  successors. 


§  3249. 
REGULATIONS  OF  CORPORATIONS  FOR  PROFIT. 

Article  I. 

1.  Annual  Meeting  of  Stockholders.  —  The   annual   meeting  of   the  stockholders 

of  this  company  shall  be  held  at  the  principal  office  of  the  company  in , 

Ohio,  on  the  first  Monday  in  January  of  each  year. 

2.  Special  Meetings  of  Stockholders  may  be  held  at  such  times  as  may  be  ordered 
by  the  board  of  directors  or  by  two  stockholders,  but  notice  of  special  meetings  shall 
be  given  each  stockholder  appearing  on  the  books  of  the  company,  by  mailing  the 
same  to  his  last  known  address,  at  least  ten  days  before  such  meeting,  or  by  publica- 
tion of  notice  ten  clays  before  such  meeting. 

3.  Quorum.  —  A  majority  in  amount  of  stock  issued  and  outstanding  shall  con- 
stitute a  quorum  for  the  transaction  of  business. 

Xote.  —  The  regulations  may  provide  the  time  for  holding  and  notice  of  the  annual 
meetings.     It  should  usually  be  fixed  so  as  to  come  after  the  close  of  the  business  each  year. 

Article  II. 

Election  of  Directors.  —  The  election  of  directors  shall  be  held  at  the  annual 
meeting  of  the  stockholders,  or  at  a  special  meeting  called  for  that  purpose.     The 

number  of  directors  shall  be ,  and  shall  hold  office  one  year,  or  until  their 

successors  are  elected  and  qualified.  Directors  chosen  at  the  first  election  shall  hold 
office  until  the  time  fixed  for  the  next  annual  meeting,  or  until  their  successors  are 
elected  and  qualified. 

All  directors  must  be  holders  of  at  least shares  of  the  stock  of  this 

company. 

Xote.  —  Xot  less  than  five  nor  more  than  fifteen  directors  may  be  chosen.  Annual  elec- 
tion of  directors,  see  §  3246. 

Article  III. 

Officers.  —  The  officers  of  the  company  shall  be  a  President,  Vice-president,  Secre- 
tary, Treasurer,  and  General  Manager.  The  offices  of  secretary  and  treasurer  may  be 
held  by  one  person. 

Said  officers  shall  be  chosen  by  the  Board  of  Directors  oy  a  majority  ballot,  and 
shall  hold  office  for  one  year  or  until  their  successors  are  elected  and  qualified,  except 
that  officers  elected  at  the  first  meeting  of  the  directors  shall  hold  office  until  the  next 
annual  meeting  of  directors,  or  until  their  successors  are  chosen  and  qualified.     All 

executive  officers  of  the  corporation  must  be  holders  of  at  least shares  of 

the  stock  of  this  company. 

Article  IV. 

1.  President.  —  The  president  shall  preside  at  all  meetings  of  stockholders  and 
directors,  sign  the  records  thereof  and  all  the  certificates  of  stock,  bonds,  contracts, 
notes  and  other  papers  executed  by  this  company,  and  perform  generally  all  the  duties 
usually  performed  by  presidents  of  like  companies,  and  such  further  and  other  duties 
as  may  be  from  time  to  time  required  of  him  by  the  stockholders  or  directors. 

2.  Vice-President.  —  The  Vice-President  shall  perform  all  the  duties  of  the  Presi- 
dent in  case  of  the  absence  or  disability  of  the  latter.  In  case  both  President  and 
Vice-President  are  absent  or  unable  to  perform  their  duties,  the  stockholders  or 
directors,  as  the  case  may  be,  may  appoint  a  president  pro  tempore. 

3.  Secretary.  —  The  Secretary  shall  keep  minutes  of  all  the  proceedings  of  the 
stockholders  and  directors  of  this  company  and  make  a  proper  record  of  the  same, 
which  shall  be  attested  by  him.  He  shall  keep  such  books  as  may  be  required  by  the 
board  of  directors,  and  shall  have  charge  of  the  stock  books  of  the  company  and  shall 
issue  and  attest  all  certificates  of  stock,  and,  generally,  perform  such  duties  as  may 
be  required  of  him  by  the  stockholders  or  directors. 

4.  Treasurer.  —  The  treasurer  shall  receive  and  have  in  charge  all  money,  bills, 
notes,  bonds,  and  similar  property  belonging  to  the  company,  and  shall  do  with  the 
same  as  may  be  ordered  by  the  board  of  directors.  He  shall  keep  such  financial 
accounts  as  may  be  required,  and  on  the  expiration  of  his  term  of  office,  shall  turn 


Forms.  669 

Regulations  of  Corporations  for  Pi 

over  to   his  successor  or  to   the   board  of  directors,   all  prope:ty,    I  ftnd 

money  of  the  company  in  his  hands. 

5.   General    Manager.  —  It   shall    be    the    duty   of    the    General    M.  t;ik<; 

charge  of  and  manage  the  shops,  factories,  warehouses,  and    I  s  of 

the  company,  to  see  to  the  employment  of  heads  of  departnp 
perform  duties  required  by  him  by  the  board  of  direct' 

Note.  —  Slate  in  the  regulations  by  appropriate  words,  the  dutii 

Article  V. 

Compensation  of  Officers.  —  The  compensation  of  directors  shall  be  such  ns  the 
stockholders  may  from  time  to  time  fix.     The  compensation  of  the  se:re:  urer 

and  general  manager  shall  be  fixed  by  the  board  of  directors,  and  said  officers  - 
furnish  bonds  for  the  faithful  performance  of  their  duties  in   such  amounts  a^ 
board  of  directors  may  require,  and  with  sureties  to  the  satisfaction  of  the  board  of 
directors. 

Note.  —  This  article  should  be  changed  to  comply  with  the  wis 

Article  VI. 
Seal.  —  The  corporate  seal  of  this  company  shall  be  circular  with  the  name  of  the 
company  and  the  name  of  the  place  of  its  principal  office  surrounding  the  word  seal. 

Note.  —  Word  this  article  so  as  to  describe  the  seal,  if  it   ia  desired  to  have  < 

Article  VII. 
Sale  of  Property.  —  All  the  property  of  this  company  may  be  sold  cr  disposed  of 
in  any  manner  by  the  board  of  directors  with  the  consent  in  writing  of  the  holders 
of per  cent,  of  capital  stock  issued  and  outstanding. 

Article  VIII. 
Order    of  Business.  —  Unless   changed   by  a  majority  vote,   at   all   stockholders' 
meetings,  the  order  of  business  shall  be  as  follows: 

1.  Reading  of  the  minutes. 

2.  Reading  of  reports  and  statements. 

3.  Unfinished  business. 

4.  Election  of  directors. 

5.  New  or  miscellaneous  business. 

Article  IX. 
Amendments.  —  These  regulations  may  be  adopted,  amended  or  repealed  by  the 
written  assent  of  the  owners  of  two-thirds  of  the  stock  of  this  company,  or  by  the 
vote  of  the  owners  cf  a  majority  of  the  stock  at  a  meeting  called  and  held  for  that 
purpose. 

Xote.  —  The  foregoing  will  cover  all  the  needs  of  the  ordinary  small  mercantile  or  mami 
facturing  corporation.     The  articles  following  will  be  found  useful  in  some  cases.     For  mi     i 

of  meeting  adopting  regulations,  see  §  3254. 

Who  May  Vote.  —  At  all  meetings  of  stockholders,  only  such  persons  shall  be 
entitled  to  vote  in  person  and  by  proxy  who  appear  as  stockholders  upon  the  transfer 
books  of  the  corporation  for  ten  days  immediately  preceding  such  meeting. 

Proxies.  —  The  instrument  appointing  a  proxy  shall  be  in  writing  and  subscribed 
by  the  appointor,  but  no  person  shall  be  appointed  who  is  not  a  stockholder  of  the 
company  and  qualified  to  vote.  _,.-., 

The  instrument  appointing  a  proxy  shall  be  deposited  at  the  office  of  the  company 
not  less  than  twenty-four  hours  before  the  time  for  holding  the  meeting  at  which  the 
person  named  in  such  instrument  proposes  to  vote,  but  no  instrument  appointing  a 
proxy  shall  be  valid  after  the  expiration  of  six  months  from  the  date  of  its  execu- 
tion, and  no  proxy  shall  be  used  at  an  adjourned  meeting  which  could  not  have  been 
used  at  the  original  meeting. 

A  vote  given  in  accordance  with  the  terms  of  an  instrument  of  proxy  shall  be 
valid  notwithstanding  the  previous  death  of  the  principal  or  revocation  of  the  appoint- 
ment or  the  transfer  of  the  share  in  respect  of  which  the  vote  was  given,  unless  notice 
in  writing  of  the  death,  revocation,  or  transfer  shall  have  been  received  at  the  office 
of  the  company days  at  the  least  before  the  meeting. 

Lost  Destroyed  cr  Defaced  Certificates.  —  If  any  certificate  of  stock  be  worn  out 
or  defeaced    then  upon  production  thereof  to  the  directors  they  may  order  the  same  to 


670  Forms. 

Regulations  of  Corporations  not  for  Profit. 


be  canceled,  and  may  issue  a  new  certificate  in  lieu  thereof;  and  if  any  certificate  be 
lost  or  destroyed,  then  upon  proof  thereof  to  the  satisfaction  of  the  directors,  or  in 
default  of  proof  on  such  indemnity  as  the  directors  deem  adequate  being  given,  a  new 
certificate  in  lieu  thereof  shall  be  given  to  the  party  entitled  to  such  lost  or  destroyed 
certificate, 

Lien  of  Company  on  Stock.  —  The  company  shall  have  a  first  and  paramount  lien 
upon  all  shares  registered  in  the  name  of  each  stockholder  (whether  held  solely  or 
jointly  with  others)  for  his  debts,  liabilities  and  engagements,  solely  or  jointly  with 
any  other  person,  to  or  with  the  company,  whether  the  period  for  the  payment,  fun- 
fillment  or  discharge  thereof  shall  have  actually  arrived  or  not.  And  such  lien  shall 
extend  to  all  dividends  declared  on  such  shares.  A  copy  of  this  article  shall  be 
printed  on  each  certificate. 

Sale  of  Stock  to  Satisfy  Lien.  —  After  default  on  any  debt,  liability  or  engage- 
ment above  referred  to,  on  ten  days'  notice  by  mail  or  publication,  the  directors  may 
sell  the  shares  of  the  stockholder  so  in  default  at  either  public  or  private  sale  and 
may  purchase  the  same  on  behalf  of  the  company  if  the  same  cannot  be  otherwise 
satisfactorily  sold. 

The  net  proceeds  of  any  such  sale  shall  be  applied  in  or  towards  satisfaction  of  the 
debts,  liabilities  or  engagements  of  such  stockholder,  and  the  residue,  if  any,  paid  to 
him,  or  his  executors,  administrators  or  assigns. 

Calls.  —  The  directors  may  from  time  to  time  make  such  calls  as  they  think  fit 
upon  the  stockholders  in  respect  of  all  moneys  unpaid  on  the  shares  held  by  them, 
and  not  by  special  arrangement  made  payable  at  fixed  time,  and  each  stockholder 
shall  pay  the  amount  of  every  call  so  made  on  him  to  the  persons,  and  at  the  time 
and  the  place  appointed  by  the  directors.  A  call  may  be  made  payable  either  in  one 
sum  or  by  two  or  more  installments. 

A  call  shall  be  deemed  to  have  been  made  at  the  time  when  the  resolution  of  the 
directors  authorizing  such  call  was  passed.  Thirty  days'  notice  at  the  least  of  any 
call  shall  be  given,  specifying  the  time  and  place  of  payment,  and  to  whom  such  cail 
shall  be  paid. 

Xote.  —  The  regulations  may  further  provide  for  interest  on  deferred  payments  or  on 
payments  in  advance  of  calls. 

Inspection  of  Books.  —  The  books,  papers  and  records  of  this  company  shall  be 
subject  to  the  inspection  of  stockholders  only  upon  the  following  conditions,  (a)  that 
a  written  application  for  such  inspection  be  made  stating  the  books,  papers  or  records 
desired,  giving  not  less  than  ten  days'  time  for  the  officers  and  directors  to  act  on 
stich  application,     (b)  That  the  applicant  must  have  been  the  owner  in  good  faith  of 

not  less  than shares  for  not  less  than months  immediately 

preceding  the  making  of  such  application,  and  that  such  applicant  satisfy  the  officers 
and  directors  that  such  inspection  is  desired  for  use  with  reference  to  the  interests 
of  the  applicant  in  this  company  and  not  for  use  with  reference  to  any  other  interests 
which  may  in  any  way  be  antagonistic  to  the  interest  of  this  company,  and  should 
the  officers  and  directors  of  this  company  be  satisfied  that  an  applicant  has  interests 
antagonistic  to  this  company  in  any  way,  and  that  the  inspection  is  not  desired  to 
further  and  promote  the  best  interests  of  this  company,  then  it  shall  be  their  duty  to 
refuse  the  inspection.  Should  such  officers  and  directors  be  satisfied  that  the  applica- 
tion ought  to  be  granted,  they  shall  fix  a  time  for  such  inspection  which  shall  be 
convenient  to  both  this  company  and  the  applicant. 

Xote.  —  In  view  of  the  recent  decision  of  the  supreme  court,  it  would  seem  wise  to  add 
an  article  limiting  the  right  of  inspection  so  as  to  prevent  inspection  by  puppets  of  com- 
petitors, tax  inquisitors  and  others  not  desiring  to  protect  interests  in  the  company  in  good 
faith. 

REGULATIONS   OF  CORPORATIONS  NOT  FOR  PROFIT. 

Article  I. 

1.   Meeting  of  Members.  —  The  annual  meeting  of  the  members  of  this  association 

shall  be  held  at  the  rooms  of  the  association  in ,  Ohio,  on  the  first 

Monday  in  each  year.  Monthly  meetings  shall  be  held  at  the  rooms  of  the  associa- 
tion on  the  first  Monday  of  each  month,  at o'clock  ....  M.  Special  meet- 
ings may  be  called  by  the  trustees,  or  of  any  two  members,  by  giving  notice  in  writ- 
ing to  each  member  by  mail  at  his  last  known  address,  or  by  publication  in  some 

newspaper  published  in ,  Ohio.     At  all  meetings  a  majority  of  the 

members  shall  constitute  a  quorum. 

Note.  —  The  regulations  may  provide  the  date  of  the  annual  meeting,  and  clubs  are 
required  to  hold  their  annual  election  on  the  3d  Monday  in  July.     See  §  324(3. 


ms.  671 

Regulations  of  Coi 


Article  II. 

Election  of  Trustees.  —  The  election  of  trustees  shall  b 
ing  of  members,  or  at  a  special  meel 
by  the  trustees,  or  by  any  two  mem  I.  ce  of  win 

■  each  member,  by  mailing  the  same  to  his  last  known 

some  newspaper  printed  in Ohio,  for  ten  days.     The 

by  ballot,  and  a  majority  of  all  votes  cast  shall  be  necessary  to  a  choice. 

The  number  of  trustees  shall  be and  they  shall  be  elect'-  . 

year,  to  hold  office  until  their  successors  are  elected  an<l  qualified.     Trustee 
the  first  election  shall  hold  office  until  the  next  annual  election,  or  until   tj 
cessors  are  elected  and  qualified. 

Note.  —  ]'<y   section  3240,   nol    lesa   than   five  i 

holding  office  may  be  regulated.     Note  that   no  maximum  nurubei 
corporations  may  have  three  or  more  trustees. 

Article  III. 
The   Election   of  Officers.  —  Officers   cf   the   association   shall   be  President, 
President,  Secretary,  and  Treasurer,  and  they  shall  be  elected  for  one  year,  and 
serve  until  their  successors  are  elected  and  qualified. 

Article  IV. 
Compensation  of  Officers.  —  The  compensation  of  the  officers  shall  be  such  as  may 
be  fixed  from  time  to  time  by  the  members. 

Article  V. 
Duties  of  President.  —  (See  Records  of  Corporation  for  Profit). 

Article  VI. 
Duties  of  Vice-President.  —  (See  Regulations  of  Corporations  for  Profit). 

Article  VII. 
Duties  of  Secretary.  —  (See  Regulations  of  Corporations  for  Profit). 

Article  VIII. 
Duties  of  Treasurer.  —  (See  Regulations  of  Corporations  for  Profit). 

Note.  —  By  appropriate  words  state  the  duties  of  the  officers  so  that   their  | 
duties  arc  clearly  defined. 

Article  IX. 

Qualifications  of  Members.  —  By  signing  the  membership  roll,  and  agreeing  to 
follow  and  be  bound  by  the  articles  of  incorporation,  regulations  and  by-laws  of  this 
association,  and  by  paying  the  initiation  fees  provided  in  article  10,  any  person,  etc., 
may  become  a  member  of  this  association  upon  the  election  by  four-fifths  of  the 
persons  present  at  the  meeting. 

Note.  — In  this  article  describe  clearly  the  qualifications  of  the  members 
of  initiation.     Members  of  certain  organizations  need  not  sign  by-la     - 

Article  X. 

Dues.  —  Each  member  shall  pay  an  initiation  fee  of Dollars,  within 

days  after  election,  and  in  case  of  failure  to  pay  the  same  within  said  tun*. 

the  election  shall  become  void.     The  annual  dues  of  the  members  shall  be 

Dollars,  payable  quarterly.     Failure  to  pay  dues  within  thirty  days  after  the  same 
shall  become  due,  shall  be  a  cause  for  expulsion. 

Article  XI. 

Suspension  and  Expulsion  of  Members.  —  Any  member  may  be  expelled  by  the 
board  of  trustees  for  failure  to  pay  dues,  or  for  conduct  unbecoming  a  member.  Before 
any  such  expulsion  or  suspension  shall  be  ordered,  the  member  charged  shall  be 
served  with  a  notice  of  the  proceedings  and  shall  be  given  an  opportunity  t< 
and  he  shall  have  the  right  to  appeal  from  the  decision  of  the  board  of  trustees  to  the 
members,  and,  at  his  request,  the  secretary  shall  call  a  special  meeting  of  the  members 
of  the  association  to  consider  the  charges  preferred  against  him. 

Note.  — This  article  should  state  the  grounds  for  expulsion  and  suspension  and  tl 
ceedings  to  fie  taken,  so  that  they  ran  b<  d  when  necessity  arises. 


£72  Forms. 

By-laws  of  Corporations  for  Profit. 


Article  XII. 
Order  of  Business.  —  Unless  otherwise  ordered  by  a  vote  of  a  majority  of  the  mem- 
bers present  at  a  meeting,  order  of  business  shall  be  as  follows: 

1.  Reading  of  the  minutes. 

2.  Reports  and  statements  of  officers  and  committee. 

3.  Unfinished  business. 

4.  Election  of  trustees. 

5.  New  or  miscellaneous  business. 

Article  XIII. 
Repeals  and  Amendments.  —  These  regulations  may  be  amended  or  repealed  by  a 
written  assent  thereto  of  the  members  of  this  association,  or  by  a  majority  vote  of  the 
mmbers  at  a  meeting  called  for  that  purpose. 


§  3250. 
BY-LAWS  OF  CORPORATIONS  FOR  PROFIT. 

Article  I. 

Meetings.  —  The  regular  meetings  of  the  board  of  directors  shall  be  held  at  the 
office  of  the  company  on  the  first  (name  day)  of  each  month,  at  (name  hour)  o'clock 
P.  M. 

Special  meetings  shall  be  held  on  the  call  of  the  president  or  of  any  director,  but 
reasonable  notice  of  a  special  meeting  and  the  purpose  of  the  same  must  be  given  by 
mail  to  each  director. 

A  majority  of  the  board  shall  constitute  a  quorum  at  all  meetings. 

Article  II. 
Vacancies.  —  In  case  of  any  vacancy  in  the  board  of  directors  caused  by  death, 
resignation   or   otherwise,   such   vacancy  may   be  filled   for   the   unexpired   term   by 
appointment  by  a  vote  of  a  majority  of  the  board. 

Note.  —  The  regulations  of  stockholders  may  provide  for  vacancies.     See  §  3248. 

Article  III. 
Compensation  of  Officers.  —  The  annual   salaries  of  the  secretary,  treasurer  and 
general  manager  shall  be  fixed  by  contract  with  such  officers,  but  said  officers  shall 
be  subject  to  discharge  for  good  cause. 

Note.  —  It  is  sometimes  wise  to  provide  that  the  amount  of  salaries  shall  be  fixed  by  the 
stockholders. 

Article  IV. 
Amendments.  —  These  by-laws  may  be  amended  or  repealed  by  a  majority  vote 
of  the  board  at  any  regular  meeting  or  at  any  special  meeting  called  for  that  purpose. 

Note.  —  It  is  impossible  to  give  the  by-laws  for  building  and  loan  companies  and  other 
.special  corporations. 


§  3253. 
NOTICE  OF  SALE  OF  STOCK  OF  THE CO. 

Notice  is  given  that ,  a  subscriber  for shares  of  the 

capital  stock  of  The Co.,  has  failed  to  pay  for  sixty  days  a 

call  for  the  payment  of  an  installment  on  the  same,  after  due  notice  and  demand  for 
the  same;  therefore,  said  stock  will  be  sold  by  the  directors  of  said  corporation  at 

public  auction  at  the  front  door  of  the  office  of  this  corporation  on  the 

day  of ,  at o'clock  A.  M. 

The Co. 

by , 

Bated  Secretary. 

,  Ohio, 

,   190. . 

Note.  —  Publish  as  required  by  §  3253. 


Forms.  673 

Stock  —  Certificate  of  Preferred,  etc. 

§  3254. 

BOOK  OF  STOCK  CERTIFICATES. 

Note.  —  The  company  musl   have  a  I k  of  stock  certificates.     The  following  foni 

common  use: 

(  Vrt  iticate  No 

For   Shares.      No 

Issued  to THE (  OMPAJ 

j  <  lapital,  $  

Dated ,  189 ;  Par   Value,  $ ei 

■ j      This  Certifies,  That. .. .  Is  the  holder  of  

Transferred   from  Shares  of Dollar ih,  fully  paid  up,  of  the 

I   Capital  Stock  of  The Company,  ti 

Dated 189....  '.   ferable  only   on  the  books  oi   the  <  ompany,  in  person  "i    by 

No.  Original  Certificate attorney,  on  the  surrender  oi  this  Certificate. 

No.  Original  Shares j  Witness    the   seal    of   Baid   Company   and 

No.  of  Shares  Transferred.,  j  signatures  oi  its   President   and  Secret 

_ j  [seal]  Ohio,  this i 

Received  this  Certificate: 189.  . .  . 

i  Secretary President. 


On  the  back  of  the  certificate  is  usually  printed  a  blank  assignment,  the  form  of  which 

may  be  as  follows : 

*  For  Value  Received,  I  hereby  sell,  transfer  and  assign  to 

of  the  shares  of  capital  stock  within  mentioned,  and  authorize 

Secretary  to  make  the  necessary  transfer  on  the  1 ks  of  the  Company. 

Witness  my  hand  this day  <>f 1  - 

Witnessed  l>v  


CERTIFICATE  OF  PREFERRED  STOCK. 
Number  Shares 

The Co.  

This  certifies  that is  entitled  to 

shares  of  the  par  value  of Dollars  per  share  of   the  Preferred 

Stock  of  The Co.,  transferable  only  on  the  books  of 

the  company  by  the  holder  thereof,  in  person  or  by  attorney,  on  the  surrender  of  this 
certificate.  Tbe  holder  of  this  certificate  is  entitled  to  non-cumulative  (or  cumulative) 
dividends  in  each  year  at  the  rate  of  six  per  cent,  per  annum,  payable  out  of  the  net 
earnings  of  the  said  company  for  such  year  in  preference  to  any  dividend  on  the  com- 
mon capital  stock. 

IN  WITNESS  WHEREOF,  The  said  company  has  caused  its  corporate  seal  to  be 
affixed  hereto,  and  this  certificate  to  be  signed  by  its  president  and  secretary. 

(Seal)  

President. 


,  Ohio,  

.,  190.  .  Secretary. 


Note. —  It  seems  that  unless  otherwise  provided,  the  preferred  stockholders  participate 
in  the  surplus  profits  remaining  after  the  proper  dividends  have  been  declared  on  th<  preferred 
and  an   equal  dividend   on   the   common   Btock.     The   foil. .win-    form    provides   againsl 
result:  ,.    .  ,      ,  . 

The  preferred  stock  of  this  company  shall  be  entitled  to  dividends  at  the  rate  oi  -i\  per 
centum  per  annum,  prior  to  the  payment  of  any  dividend-  upon  the  common  stock,  and  sucli 
dividends  upon  the  preferred  stock  shall  be  cumulative   (or  non-cumulati 
stock  shall  not  be  entitled  to  any  dividends  in  excess  of  said  sis  per  cent,  and  the  arrears 
thereof. 

CONVERTIBLE  PREFERRED  STOCK. 

Note.  — When  it  is  desired  to  permit  preferred  stock  to  be  converted  into  commoi 

add  the  following:  ,         ,  ..  . 

The  holder  hereof  may  at  his  election,  on  the  surrender  of  tins  certifict  I  avert  the 

same  into  an  equal  number  of  shares  of  common  stock. 


674 


Forms. 


Stock  —  Books,    etc.,    as   to. 


CERTIFICATE  OF  STOCK  RESERVING  LIEN. 

Note.  —  When  in  the  organization  of  banks  or  other  corporations,  it  is  desired  to  give 
the  company  a  lien  on  the  stock  to  secure  indebtedness  to  it,  add  the  following  clause  to  the 
general  form: 

The  said  corporation  shall  at  all  times  have  a  lien  on  the  stock  represented  by  this  cer- 
tificate for  all  indebtedness  of  the  owner  of  said  stock  to  said  company,  which  lien  shall  be 
enforceable  as  provided  by  the  by-laws  of  the  company  and  shall  have  preference  over  any 
other  lien  on  said  stock  by  way  of  pledge  or  otherwise,  nor  shall  said  lien  be  impaired  by  a 
transfer  of  said  stock. 

FORMS  OF  STOCK  JOURNAL  AND  LEDGER. 

]STote.  —  The  record  of  stock  transfers  is  kept  in  various  Avays.  Some  corporations  keep 
one  transfer  book  only,  its  form  combining  the  features  of  a  journal  and  ledger.  But  the 
better  practice  is  to  keep  both  a  stock  journal  and  a  stock  ledger.  By  the  aid  of  these  books 
the  history  of  each  share  of  stock  can  be  traced  at  all  times,  however  often  it  may  have  been 
transferred.  There  are  many  forms  of  such  journals  and  ledgers,  almost  every  bookkeeper 
having  his  own  ideas  on  the  subject.  The  following  forms  will  be  readily  understood,  and 
answer  at  least  the  main  purpose  desired: 

STOCK  JOURNAL. 


Stock  Canceled. 

Stock  Issued. 

ct 

We.the  undersigned. 

a 

CO 

o 

CO 

L. 

hereby     acknowl- 

a 

s 

edge    the    receipt 

es 

To  Whom  As- 

u 

cS 

CD 

of  the  st  ock  set  op- 

sx 

By  Whom  Assigned. 

o 

O 

CD 

93 

3 

signed  and 

o 

o 

j£ 

0 

posite  our  respec- 

10 

< 

"3 

3 
■- 

O 

to 

Issued. 

o 

"3 

O 

tive  names: 

CO 

~! 

£> 

x 

.O 

.3 

> 

CD 

bo 

B 

r 

03 

s 

S 

c3 

Cb 

rt 

C 

►J 

■z 

fc 

Q 

l-l 

£ 

£ 

F4 

1896. 

1896. 

Jan.  2.. 

The  Ohio  Company.. . 

Jan.   a 

1 

1 

10 

$1000  01 

John  Jones. 

Feb.  1 . . 

1 

1 

io 

Feb  29 

William  Smith. 

26 

32 

10 

iooo  a 

William  Smith. 

Jan.  2. 
Feb.  29. 


STOCK  LEDGER. 
John  Jones,  Columbus,  Ohio. 


From  or  to  Whom  Transferred. 


From  The  Ohio  Company. 
To  William  Smith   


<c 

eg 

U 

-~ 

cu 

D 

It 

CO 

<t- 

—i 

o 

CO 

£5 

55 

1 

32 

Jan.  1. 

Feb.  1. 


$1000  00 


$1000  00 


$1000  00 


The  hypothetical  entries  which  appear  in  the  last  two  forms  indicate  that  on  January  2d, 
1896,  John  Jones  subscribed  for  ten  shares  of  the  capital  stock  of  The  Ohio  Company,  of  the 
total  par  value  of  $1,000.00:  that  his  ledger  account  is  on  Folio  No.  1  of  the  Stock  Ledger: 
that  the  number  of  the  stock  certificate  issued  to  him  for  such  ten  shares  is  No.  1;  that  he 
has  received  and  receipted  for  such  certificate;  that  on  February  1st,  1896,  he  assigned  the 
whole  of  said  ten  shares  to  William  Smith:  that  on  February  29th,  1896,  said  Smith  presented 


Forms.  675 

Record  of  Proceedings. 


said  certificate  to  the  secretarj    for  transfer,  and  thai   .1   new   certil     it<  led  to  him. 

numbered  32,  which  was  received  and  receipted  for;  thai  the  furthei  bistoi  liure>i 

begins  in  the  ledger  accounl  of  said  Smil  h,  on  Ledger  Folio  No.  26;  1  hal  h  hen  said  John   I 
subscribed  for  said  shares,  he  was  debited  in  his  ledger  accounl  with  their  pai  valu< 
thai  when  he  sold  the  same  to  said  Smith,  he  was  credited  with  the  same  amounl 
as  the  del ii;  and  cr<  dit  columns  in  his  ledger  accounl  then  balanced,  1  hi-  showed  thai  in- 
account  was  dosed,  and  thai  he  was  no  Longer  1  stockholder  in  the  company,  having  beei 
ceeded  by  said  William  Smith,  as  to  his  whole  holding  of  stock.     Mad  John  done,  sold  In- 
stock  to  more  than  one  person,  il  would  have  been  necessary  to  open  an  accounl  in  the 
ledger  with  each  assignee.     These  forms  can  be  changed  to  meet   the  individual  tast< 
bookkeeper;   but  whatever   be  the  form-  adopted,  the   facts   sel   oul    in   the  lasl    I 
should  appear  in  some  shape  or  other  in  the  forms  adopted. 

See  generally  as  to  corporation  accounting,  "  Kahili  on  Corporation  Accounting." 

RECORD  BOOKS. 

Forms  and  Suggestions  Relative  to  Formation  of  Corporations. 

Note.  —  The  forms  and  suggestions  following  are  applicable  to  the  organization  "f 
co-operative  electric  lighting,  gas,  manufacturing,  mercantile,  mining,  oil,  publishing,  printing, 
telephone  and  telegraph  companies,  and  generally  to  corporations  for  profit,  formed  foi 

ous  purposes  under  chapter  one.  title  two,  part  second  of  the  Revised  Statutes,  and  ;■  - 
organization  of  which  no  special  provision   is  mode  in  subsequenl    chapters  of   the  Btal 

Corporations  subject  to  special  provisions  are  incorporated   in  a   similar  manner. 

Records.  —  Upon  the  filing  of  the  articles  of  incorporation,  a  copy  of  such  articles 
is  furnished  by  the  secretary  of  state.  The  record  book  should  then  be  opened. 
A  blank  book  should  be  procured  of  sufficient  size  to  hold  all  the  records  of  organizi- 
tion  and  of  the  proceedings  of  stockholders  and  directors.  Often  a  separate  book  is 
used  for  the  records  of  directors,  but  unless  the  meetings  are  very  frequent,  one  book 
should  hold  all  the  records.  This  book  should  be  given  any  title  that  will  identify  it, 
as:  Record  of  Proceedings  of  Incorporators,  Stockholders  and  Directors  of  The 
Co. 

The  following  items  should  be  recorded  in  their  order: 

1.  Copy  of  articles  with  certificates. 

2.  Notice,  etc.,  as  to  opening  books. 

3.  Subscription  to  stock. 

4.  Certificate  of  subscription  of  ten  per  cent. 

5.  First  stockholders'  meeting. 

6.  First  directors'  meeting. 

The  substance  of  all  the  entries  in  the  record  is  as  follows: 

RECORD    OF    PROCEEDINGS    OF    INCORPORATORS,    STOCKHOLDERS    AND 
DIRECTORS  OF  THE CO. 

Articles  of  Incorporation. 

On  the day  of 190 

, ,  and ,  the  persons  named  below 

as  subscribers  of  articles  of  incorporation,  desiring  for  themselves,  their  associates, 
successors  and  assigns,  to  become  a  body  corporate  under  the  laws  of  the  State  of 
Ohio,  under  the  name  of  The Co.,  did  subscribe  and  acknowl- 
edge according  tc  law,  articles  of  incorporation,  as  follows,  to  wit: 

(Set  out  here  the  articles  in  full,  together  with  the  certificate  of  acknowledgment, 
and  the  certificate  of  the  clerk  of  the  Court  of  Common  Pleas  as  to  the  official  char- 
acter of  the  notary.)  Which  articles,  together  with  the  certificate  of  acknowledgment 
and  the  certificate  of  the  Clerk  of  the  Court  of  Common  Plaas  as  to  the  official  char- 
acter of  the  officer  taking  such  acknowledgment  were,  on  the day  of 

190.  .,   duly  filed  in  the  office  of  the  Secretary  of  State   at  Columbus, 

Ohio,  and  by  him  recorded,  and  a  certified  copy  thereof  by  him  furnished  to  said 
subscribers. 

Meeting  of  Incorporators. 

Meeting  of  the  incorporators  of  The    Co..  held  this 

day  of 190 ...  at  the  office  of to  order 

the  opening  of  books  of  subscription  to  the  capital  stock  of  said.  The 

Co.,  to  fix  the  time  and  place  for  such  opening  and  to  waive  notice  of  such 

opening  required  by  law  to  be  given,  and,  having  agreed  upon  such  time  and  place. 


676  Forms. 

Record  of  Proceedings. 


the  following  order  for  and  waiver  of  notice  of  the  opening  of  such  books  of  sub- 
scription was  made  in  writing  by  all  the  incorporators  of  said  company. 
(Copy  form  of  order  and  waiver,  §  3243.) 

Subscription  to  the  Capital  Stock  of  The Co. 

(Copy  form  of  subscription,  §  3243.) 
Certificate  of  Subscription. 

On  this day  of ,  190 .. ,  ten  per  cent,  of  the  capital  stock 

of  The Co.  having  been  subscribed,  we,  being  all  (or  a 

majority)  the  subscribers  of  the  articles  of  incorporation  of  said  corporation,  desiring 
to  certify  that  fact  to  the  Secretary  of  State  under  and  in  accordance  with  the  provi- 
sions of  §  3244  of  the  Revised  Statutes  of  Ohio,  made,  executed  and  filed  in  the  office 
of  the  Secretary  of  State  at  Columbus,  Ohio,  a  certificate  of  that  fact  as  follows,  to  wit: 

(Copy  certificate,  §  3244.) 

Certificate  of  Incorporators. 

We,  the  undersigned,  do  hereby  certify  that  the  foregoing  is  a  true  and  correct 

record  of  the  proceedings  by  us  had  as  incorporators  of  The 

Co.,  in  the  creation  and  organization  of  said  company;  and  we  do  hereby  agree  that 

the  first  meeting  of  the  stockholders  thereof  be  called  and  held  at  the  office  of 

on  the day  of ,  190 .  . ,  at  ....  o'clock  ....  M., 

for  the  election  of  directors  and  the  transaction  of  such  other  business  as  may  come 
before  such  meeting. 

First  Stockholders'  Meeting. 

Ohio, ,  190.  . 

Pursuant  to  formal  notice  given  by  the  subscribers  to  the  articles  of  incorporation 

0f  The • Co.,  to  the  subscribers  to  the  capital  stock  of  said 

company  to  meet  at  the  office  of on  the day  of 

190.  .,  at o'clock   ....   M.,  for  the  purpose  of  electing  directors 

and  transacting  such  other  business  as  might  come  before  said  meeting,  all  the  sub- 
scribers to  the  capital  stock  aforesaid  met  at  the  time  and  place  above  named,  and 
thereupon  in  person  or  by  proxy  did  execute  a  waiver  of  notice  of  said  meeting,  which 
waiver  appears  here  upon  the  record  of  said  corporation,  as  follows,  to  wit: 

(Copy  waiver  of  notice,  §  3244.  If  the  notice  is  not  waived,  recite  in  the  record 
the  publication  of  notice,  giving  copy  of  same.) 

On  the  motion  of  Mr duly  seconded  and  carried,   Mr. 

was  chosen  chairman  and  Mr secre- 
tary of  the  meeting. 

On  the  motion  of  Mr ,  the  shares  of  capital  stock  of  the  corpora- 
tion being  cast  in  the  affirmative  and  no  shares  of  the  stock  being  cast  in  the  nega- 
tive, it  was  resolved  that  the  code  of  regulations  hereinafter  set  forth  be  adopted  as 
the  code  of  regulations  of  this  corporation,  and  that  the  written  assent  of  the  stock- 
holders favoring  the  adoption  of  such  regulations  be  recorded  in  the  minutes  of  this 
meeting. 

Regulations. 
(Copy  regulations,  §  3249.) 

Thereupon  all  the  subscribers  to  the  capital  stock  of  The 

Co.,  duly  executed  a  written  assent  to  the  adoption  of  the  foregoing  code  of  regula- 
tions, as  follows: 

Ohio, ,  190.  . 

We,  the  undersigned,  being  the  owners  of  the  number  of  shares  of  the  capital 

stock  of  The Co.  set  opposite  our  respective  names,  do  hereby 

assent  in  writing  to  the  adoption  of  the  code  of  regulations  hereinbefore  set  forth,  for 
the  government  of  this  corporation. 

Names.  Shares. 


Thereupon,  Mr ,  Chairman,  declared  the  election  of  the  board 

of  directors  next  in  order. 

The  incorporators  of  the  company  were  requested  by  the  chairman  to  act  as 
inspectors  of  the  election. 


Forms.  677 

Election   of   Directors  —  Oath,   etc. 

The  election  cf  directors  was  then  duly  proceeded  with,  and  the  names  of  Messrs. 

and    were  placed   in   nomination   as   candidates   for   the   office   uf 

director.      No    other   names   being   proposed,    a   vote   by   ballot   was    taken    with 

following     result:         ,      

,   and    received    ,    ,    

and votes  respectively. 

Thereupon    the    incorporators    of    the    company    as    inspectors    of    the    election 
announced  that  the  persons  above  named  had  received  the  number  of  votes  ah 

stated,   and  thereupon    ,    

and were  declared  elected  diractors,  and    I 

following  certificate  of  said  election  was  made: 

Certificate  of  Election  of  Directors. 

(Copy  certificate,  §  3245.) 

Note.  —  Frequently  slock  is  paid  for  by  the  transfer  property  and  then  it  i-  wise  to 
the  transaction  approved  by  the  stockholders,  aboul   as  folli 

Thereupon  a  written  proposition  from  Mr to  sell  this  company 

certain  property  therein  described  was  presented  to  the  meeting,  said  proposition 
being  as  follows: 

Ohio, 190.  . 

To  The Co., 

Gentlemen.  —  We  hereby  offer  to  soil  your  company  (describe  property)  for  the 

sum  of  $ payable  in  the  paid  up  capital  stock  of  your  company;  sal  1 

stock  to  be  issued  fully  paid  up  to  the  undersigned,  the  same  being  stock  hereto- 
fore subscribed  by  them;  said  property  to  be  received  in  full  payment  by  your  com- 
pany of  said  subscriptions. 

Yours,  etc., 


On  motion  of  Mr ,  duly  seconded,  it  was  resolved  that  said 

proposition  be  accepted  and  that  the  proper  officers  of  the  company  be  "nstructed  to 

issue  and  deliver shares  of  the  subscribed  capital  stock  of  the  company  *o 

the  above  named  parties  in  the  several  amounts  subscribed  by  each,  the  same  to  be 
issued  as  fully  paid  up,  and  the  contract  of  subscriptions  of  the  several  subscribers 
aforesaid  be  fully  satisfied  and  canceled. 

The  chairman  having  put  said  resolution,  and  the  same  having  been  fully  dis- 
cussed and  explained,  the  vote  on  the  same  was  received  and  declared  by  the  chair- 
man to  be votes  in  favor  of  said  resolution  and  none  against  the  same,  and 

said  resolution  was  thereupon  declared  carried  and  said  proposition  accepted. 

Thereupon,  on  motion,  said  meeting  was  duly  adjourned. 

Attest:  •  •  " : 

Chairman. 


Secretary. 

Oath  of  Directors. 
Note.  —  Insert  form  under  §  :!247  and  have  the  directors  and  the  notary  sign  the  record. 

First  Meeting  of  Directors. 

Ohio 190.  . 

Pursuant  to  notice  duly  given  at  a  stockholders'  meeting  of  the 

Co.,  held  at o'clock on  the day  of • » 

190 .  . ,  the  directors  of  said  company  met  at  the  office  of at  ...  •  • 

o'clock ,  on  the day  of 190.  ..  the  following  directois 

being  present:      , < 


'  '  An  oath  faithfully  to  perform  their  duties  as  directors  of  said  company  was  taken 

by  said  directors  before ,  notary  public.  Ml„COT1 

The  meeting  was  called  to  order  by  Mr who  was  duly  chosen 

to  act  as  chairman,  Mr being  chosen  to  act  as  secretary. 

On   motion    of   Mr duly    seconded,    the    following    code    of 

by-laws  for  the  government  of  this  board  was  duly  adopted. 

(Insert  by-laws.     See  §  5249.) 
Thereupon  the  chairman  declared  the  election  of  officers  next  in  order,  and,  nomi- 
nations having   been   made  and   a  ballot   taken.    Mr was    auiy 

LAW  GOV.   PRIV.   COR. —  41. 


678  Forms. 

Lost  or  Destroyed  Stock  —  Bond  for. 

elected  president,  Mr ,  vice-president,  Mr , 

secretary  and  treasurer,  and  Mr ,  general  manager. 

Thereupon  each  of  the  above  named  persons  was  declared  to  be  duly  elected  to 
the  respective  offices  above  named,  and  immediately  commenced  the  performance  of 
official  duties. 

Thereupon    the    president    submitted    a    report    of    a    proposition    made    by    Mr. 

,  to  this  company,  and  accepted  by  the  stockholders.     On  motion 

of  Mr ,  the  same  was  accepted  by  the  board  of  directors  for  the 

company  and  the  proper  officers  of  the  company  were  instructed  to  execute  and 
deliver  to  the  above  named  persons  the  amount  of  stock  directed  issued  to  them 
respectively. 

Note.  —  This  last  clause  is  to  be  used  when  the  company  is  taking  property  for  stock. 

Thereupon  on  motion,  duly  seconded,  the  board  adjourned. 

Attest , 

Secretary. 
Attest ,  , 

Secretary  pro  tem.  President, 


Chairman  pro  tem. 

RECORD  ENTRIES  EOR  ANNUAL  OR  SPECIAL  MEETINGS. 

,  Ohio, ,  190.  . 

Pursuant  to  notice  in  writing  (recite  the  fact  of  the  call,  notice,   etc.,  so  as  to 

show  that  the  meeting  was  legally  called)  the  stockholders  of  The 

Company  met  at  the  office  of  the  company  on  the    day  of , 

190.  .,  at o'clock  ....  M. 

The  president  called  the  meeting  to  order,  and,  on  roll  call,  it  was  found  that  a 
quorum  (or  other  necessary  number)  was  present,  as  follows: 

Names.  Shares.  Name  of  Proxy. 


The  president  announced  that  the  first  matter  in  order  was  the  reading  of  the 
minutes  of  the  previous  meeting,  which  was  done,  and  the  same  were  approved. 

The  president  then  called  for  the  reports  of  officers,  which  were  read  and  were  as 
follows: 

(Set  forth  reports.) 

There  being  no  unfinished  business,  the  president  announced  that  the  election  of 
directors  was  next  in  order,  and  called  for  nominations.  (Proceed  as  in  minutes  of 
first  election,  stating  vote  received,  etc.) 


§  3254-1. 
LOST  OR  DESTROYED  STOCK.     BOND  OE  INDEMNITY. 

KNOW  ALL   MEN   BY  THESE  PRESENTS,   That  we,    as 

principal,  and and as  sureties,  are  held  and 

firmly  bound  unto  the Co.,  in  the  sum  of  S to 

be  paid  to  said  The Co.,  its  successors  or  assigns,  for  which 

payment  well  and  truly  to  be  made,  v/e  do  bind  ourselves,  our  heirs,  executors  and 
administrators,  jointly  and  severally. 

WHEREAS,  A  certificate  for shares  of  the  capital  stock  of  The 

Co.,  being  certificate  number ,  owned  by  and  standing  on  the 

books  of  the  said  company  in  the  name  of ,  principal  herein,  has 

been  lost  or  destroyed,  and  cannot  be  produced  by  said ,  and, 

whereas,  at  his  request,  and  upon  his  promises  to  indemnify  and  save  harmless  the 
said  The Co.,  in  the  premises  and  to  deliver  up  said  certifi- 
cate when  found,  to  the  said  The Co.,  to  be  canceled,  the  said 

The Co.,  has  this  day  issued  to  said a 

certificate   of   stock  for    shares   in   the   place   of   said   certificate   so   lost   or 

destroyed:     Now  therefore,  the  condition  of  the  obligation  is  such  that  if  the  above 


Forms.  679 

Collateral   Note. 


named    and    t],. 

executors,  and  administrators,  or  any  of  them,  shall  wejl  and  truly  u  and 

save  harmless  the  said  The Co.,   its  successor 

from  and  against  the  said  certificate  of  stock,  any  and  all   damages,  COStl    cb 
and  expenses,  and  all  actions  or  suits,  whether  groundless  or  otherwise,  by  reaso 

said  certificate  of  stock  number ,  and  also  deliver  up  the  Bame,  or  cause  it   to 

be  delivered  up,  when  and  so  soon  as  the  sama  shall  be  found,   to  be  canceled,  then 
this  obligation  shall  be  void,  otherwise,  to  be  and  remain  in  full  force  and  effect. 

IN  WITNESS  WHEREOF,  We  have  hereunto  subscribed  our  names  this 

day  of ,  190.  . 


Principal. 


Sureties. 

Note.  —  Where  certificates  of  stock   have  been   lost,  destroyed   or  stolen,  the   qn 
arises:     Shall  the  newly  issued  certificates  b<   marked  originals  01  duplical 

If  marked  duplicates,  the  shares  would  be  likely  to  lose  the  quahtj  of  readj  sale  in  it:.- 
market.  The  misfortune  and  carelessness  of  the  loser,  however,  should  nol  !"•  a  possible 
cause  of  involving  the  corporation  in  a  double  issue  oi  stock  and  consequenl  double  liability 
in  respect  of  the  same  shares,  if  both  certificates  of  the  same  number  arc  issued  and  remain 
outstanding  as  originals.  Such  liability  may  no!  mature  for  years,  bu1  the  bond  of  indemnity, 
given  to  secure  the  second  issue,  may  in  the  meantime  have  become  worthless.  The 
method  for  the  corporation  to  pursue  is  to  issue  the  substitute  certificates  .1-  duplicates,  bear- 
ing the  same  numbers,  and  the  words,  "Duplicate;   issued  in  lieu  <>i  certificate   No 

claimed  to  have  been  accidentally  lost  and  not  negotiated  by   "  written  or  printed 

conspicuously  across  the  face  of  the  certificate. 


§  3255. 
BANKER'S   COLLATERAL  NOTE. 

$ Toledo,  Ohio 189 .  . 

after  date,  without   grace,   for  value  received, 

promise  to  pay  to  the  order  of at  their  Bank  in 

the  City  of  Toledo,  Ohio, Dollars,  with  interest,  at per 

cent,   per  annum,  having  deposited  with  them  as  collateral  security  for  payment  of 

this  or  any  other  liability  or  liabilities  of to  said •  •  • 

t  due  or  to  become  due,  or  that  may  be  hereafter  contracted,  the  following 

property,  viz.: 


The  market  value  of  which  is  now  S with  the  right  on  their  part  from 

time  to  time  to  demand  such  additional  collateral  security  as  they  may  deem  suf- 
ficient should  the  market  value  thereof  decline,  and  also  hereby  give  them  a  lien  for 
the  amount  of  all  the  said  liabilities  upon  all  the  property  or  securities  given  unto  or 
left  in  their  possession  by  the  undersigned,  and  also  upon  any  balance  of  the  deposit 

account  of  the  undersigned  with  them.     Upon failure  to  comply  with  any 

such  demand,  this  obligation  shall  forthwith  become  due.  with  full  power  and  author- 
ity to  them  or  their  assigns  in  case  of  such  default  or  of  the  non-payment  of  any  of 
the  liabilities  above  mentioned  at  maturity,  to  sell,  assign  and  deliver  the  whole,  or 
any  part  of  such  securities,  or  any  substitutes  therefor  or  additions  thereto,  at  any 
brokers'  board,  or  at  public  or  private  sale,  at  their  option,  at  any  time  or  times  there- 
after without  advertisement  or  notice  to    and  with  the  right  on  their  part 

to  become  purchasers  thereof  at  such  sale  or  sales,  freed  and  discharged  of  any  equity 
of  redemption.  And  after  deducting  all  legal  or  other  costs  and  expenses  for  collec- 
tion sale  and  delivery,  to  apply  the  residue  of  the  proceeds  of  such  sale  or  sales  so 
made    to  pay  any,  either  or  all  of  said  liabilities,  as  to  them  shall  be  deemed  proper. 

returning  the  overplus  to  the  undersigned;  and will  still  remain  liable  for 

any  amount  so  unpaid.  The  undersigned  do  hereby  authorize  and  empower  them  at 
their  option  at  any  time,  to  appropriate  and  apply  to  the  payment  and  extinguish- 
ment of  any  of  the  above-named  obligations  or  liabilities,  whether  now  existing  or 
hereafter  contracted,  any  and  all  moneys  now  or  hereafter  in  their  hands,  on  deposit 
or  otherwise,  to  the  credit  of  or  belonging  to  the  undersigned,  whether  the  said  obli- 
gations or  liabilities  are  then  due  or  not  due. 


680  Forms. 

Collateral    Note  —  Convertible    Bonds. 

§  3255. 

COLLATERAL  NOTE. 

$ Toledo,  Ohio, ,  189 .  . 

after  date,  for  value  received promise 

to  pay  to  the  order  of Dollars, 

at ,  with  interest  at  the  rate  of per  cent,  per 

annum  after having  deposited  as  collateral  security  for  the  pay- 
ment hereof  the  following  described  property,  viz. :      


the  value  of  which  is  now  $ and hereby  give  the  legal  holder 

hereof  full  power  and  authority  to  sell  the  same,  or  any  part  thereof,  or  any  substi- 
tutes therefor,  or  any  additions  thereto,  on  maturity  of  this  note,  or  at  any  time 
thereafter,  or  before  in  the  event  of  said  property  depreciating  in  value  in  the  opinion 
of  said  legal  holder,  at  public  or  private  sale,  at  his  discretion,  without  advertising 
the  same  or  demanding  payment  or  giving  notice,  with  the  right  to  the  said  legal 
holder  to  be  the  purchaser  himself  at  any  such  public  or  private  sale;  and  after  pay- 
ing all  legal  and  other  costs  attending  the  sale  and  delivery  of  such  property,  to  apply 
the  residue  of  the  proceeds  to  the  payment  of  this  note  and  interest  in  full,  returning 
the  surplus  to  the  undersigned.     But  in  case  the  proceeds  of  such  sale  shall  not  be 

sufficient  to  pay  the  costs  and  principal  and  interest  thereof promise  to  pay 

such  deficiency  forthwith,  with  interest  at  eight  per  cent,  per  annum. 


Due 


§  3256. 

RESOLUTION  OP  BOARD  OF  DIRECTORS  AUTHORIZING  LOAN. 

Thereupon  Mr offered,  and  Mr seconded, 

the  following  resolution: 

Resolved,  That  this  company  borrow  the  sum  of  $ ,  and  tUat  tiie  presi- 
dent and  secretary  of  this  company  be  and  are  hereby  authorized  and  directed  to 
execute  and  deliver  to   (trustee  or  payee)   the  bonds  of  this  company,  secured  by  a 

mortgage  on  its  real  and  personal  estate  in  the  sum  of  $ ,  etc. 

Thereupon  the  president  put  said  resolution  and  the  following  was  the  vote  of 
the  directors: 

Yea  Nay 

Yea  Nay 

Yea  • Nay 

Yea 

[ Yea 

Thereupon  said  resolution  was  declared  carried. 

Xote.  —  Describe  the  bonds  and  mortgage  fully  in  the  resolution.  In  case  of  an  ordinary 
loan  by  a' corporation  a  vote  of  the  stockholders  is  not  required  and  could  serve  no  purpose 
except  to  estop  those  voting.  A  two-thirds  vote  of  stockholders  is  required  in  hotel  and 
some  other  companies.  See  §  3884.  Notice  that  a  yea  and  nay  vote  of  directors  is  required 
by  §  3257. 


§  3257. 

CONVERTIBLE  BONDS. 

Xote. —  pass  a  resolution  by  the  board  of  directors  describing  the  issue  fully  and  recit- 
ing that  it  is  subject  to  the  written  assent  of  the  stockholders  as  provided  in  §  3257. 

ASSENT  OF  STOCKHOLDERS. 

We    the  undersigned  stockholders  cf  The    Company,   do- 
hereby  assent  in  writing  to  the  issue  of  convertible  bonds  as  provided  by  the  resolu- 


Forms.  681 

Increase  of   Capital   Stock. 


tion  of  the  board  of  directors  of  this  company  adopted day  of 

190.  . 

Names.  Shares. 


!        Note.  —  Three-fouri  lis  of  the  stockholders  and  three-fourtl 
se nt i'il  in  t  be  w  lit  i  en  assent. 

MORTGAGES. 

(Space  will  not  permit  the  giving  examples  of  various  forms  of  trust  mortgages, 
trust  deeds,  etc.     Consult  any  good  general  form  book.) 


§  3262. 

INCREASE  OF  CAPITAL  STOCK. 

NOTICE  OF  STOCKHOLDERS'  MEETING. 

Notice  is  given  that  by  resolution  of  the  directors  of  The 

Company,  passed  the clay  of ,  190.  .,  by  a  majority  of  said 

directors,  a  meeting  of  the  stockholders  cf  said  company  is  called  for  the 

day  of ,  190 ...  at o'clock  ....  M.,  at  the  office  of  the  company, 

for  the  purpose  of  considering  and  determining  as  to  a  proposed  increase  of  the  capital 

stock  of  said  company  from  $ to  $ ,  or  such  other  amount  as  may 

be  fixed  by  said  meeting. 

,  Ohio,  

t  190 .  .  Secretary. 

Xote.  —  The  foregoing  notice  must   be  given  by  publication  in  a   newspaper  oi  general 
circulation,  and  by  mail  at  leasl  thirty  days  before  the  time  fixed  for  the  me< 

WAIVER  AND  AGREEMENT  FOR  PURPOSE  OF  INCREASING  CAPITAL  STOCK. 

,  Ohio, 


190.  . 


We,  the  undersigned,  being  all  the  holders  of  the  capital  stock  of  The 

Company,  and  being  this  day  all  present,  in  person  or  by  proxy,  at  a 

meeting  of  said  company,  *  called  by  a  majority  of  its  directors,  to  consider  the  sub- 
ject of  increasing  the  capital  stock  of  said  company  [if  the  meeting  has  not  been  so 
called,  and  at  any  meeting  at  which  all  the  stockholders  are  present,  in  person  or  by 
proxy,  it  is  decided  unanimously  to  make  an  increase  of  capital,  that  portion  of  the 
above,  beginning  at  the  *  should  be  omitted],  do  hereby  waive  in  writing  the  notice 
of  such  meeting,  by  publication  and  by  letter,  required  by  law;  and  we  do  also  agree, 

in  writing,  that  the  capital  stock  of  said  company  may  be  increased  from  S 

f  its  present  capital  stock,  to  $ ,  divided  into shares, 

of  $ each. 

Name  of  Stockholder.  Name  of  Proxy.  No.  of  Shares. 


RESOLUTION  AND  RECORD  ENTRY  FOR  INCREASE  OF  STOCK. 

Thereupon  Mr offered,  and  Mr seconded. 

the  following  resolution: 

Resolved,  That  the  capital  stock  of  The    Company  be 

increased  from  $ ,  its  present  capital  stock,  to  S •  • .  divided 

into  .   shares  of  $ each;  and  that  the  president  and  secretary 

of  said  company  be  instructed  to  file  a  certificate  of  such  increase  with  the  Secretary 
of  State. 


682  Forms. 

Increase  of   Capital  Stock. 


Thereupon,  the  president  put  said  resolution  and  the  same  was  adopted  by  the 
vote  of  the  holders  of  a  majority  of  the  capital  stock. 

Xote. Recite  in  the  minutes  of  the  meeting,  the  call,  notice  and  stockholders  present 

so  as  to  show  compliance  with  the  statute;  also  recite  the  filing  of  the  certificate  with  the 
secretary  of  state.     Do  not  file  anything  but  the  certificate. 

CERTIFICATE  OF  INCREASE  OF  CAPITAL  STOCK. 

,  President,  and ,  Secre- 
tary, of  The Company,  duly  authorized  in  the  premises,  and 

acting  on  behalf  of  said  Company,  do  hereby  certify,  that  on  the day  of 

,  A.  D.  1 .  .  .  .,  the  capital  stock  of  said  Company  was  fully  subscribed  for, 

and  an  installment  of  ten  per  cent,  on  each  share  of  stock  had  been  paid;  that  on 
said  day,  by  a  vote  of  the  holders  of  a  majority  of  the  stock  of  said  Company,  at  a 
meeting  called  by  a  majority  of  its  directors,  and  held  at  the  office  of  the  Company, 

in  the of ,  County,  Ohio,  and  at  which  meeting 

all  the  holders  of  the  capital  stock  of  said  Company  were  present  in  person  or  by 
proxy,  and  waived  in  writing  the  notice  by  publication  and  by  letter  of  the  time, 
place  and  object  of  such  meeting  required  by  law,  and  also  agreed  in  writing  to  the 
increase  of  capital  stock  hereinafter  set  forth,  it  was,  on  motion,  "  Resolved,  that  the 

capital  stock  of  said,  The Company,  be  increased  from 

<jj its  present  capital  stock,  to   $ divided  into 

shares  of  $ each;  and  further,  that  the  President  and 

Secretary  of  said  Company  be  instructed  to  file  a  certificate  of  such  increase  with  the 
Secretary  of  State;  "  which  is  done  accordingly. 

In  Witness  Whereof,  The  aforesaid ,  President, 

and ,  Secretary,  of  The 

(Corporate  Seal)       Company,  acting  for  and  on  behalf  of  said  Company,  have  here- 
unto set  their  hands  this day  of ,  A.  D.  1 .  .  . 

The Company. 

By President. 

,  Secretary. 

Xote.  —  Change  the  certificate  so  as  to  correctly  recite  the  facts  as  to  the  call,  agree- 
ment, etc. 

CERTIFICATE  OF  INCREASE  BEFORE  ORGANIZATION. 

The  undersigned,  being  all  the  original  subscribers  to  the  capital  stock  of  The 

Company,  do  hereby  certify,  that  on  the day  of 

...........  A.  D.  190.  .,  the  original  capital  stock  of  said  Company  was  fully  sub- 
scribed for,  and  an  installment  of  ten  per  cent,  on  each  share  of  stock  paid;  that  on 
said  day,  by  unanimous  written  consent,  and  by  a  vote  of  the  holders  of  all  the  capital 
stock  of  said  Company,  it  was,  on  motion,  "  Resolved,  that  the  capital  stock  of  said, 

1<h.e Company,  be  increased  from  S ,  its  present 

capital   stock,   to   $ ,   divided   into    shares   of   $ 

each;  and  that  a  certificate  of  such  increase  be  filed  with  the  Secretary  of  State." 

IN  WITNESS  WHEREOF,  We  have  hereunto  affixed  our  signature,  at 

Ohio,  this day  of ,  A.  D.  190 .  . 


Xote. —  A  resolution  should  be  passed  and  the  original  consent  of  stockholders  should 
be  entered  on  the  corporate  records. 


§  3263. 

INCREASE  BY  ISSUE  OF  PREFERRED  STOCK. 

WRITTEN  ASSENT  OF  STOCKHOLDERS. 

We   the  undersigned,  being  the  owners  of  the  number  of  shares  of  the  capital  stock 

0f  The ' Co.  set  opposite  our  respective  names,  assent  to 

the  increase  of  the  capital  stock  of  said  company  from  $ to  S , 

and  to  the  issue  cf  $ (or  the  whole)  of  said  increase  as  preferred  stock,  m 


Forms.  683 

Increase  of   Capital  Stock. 


shares  of  $ each,  entitled  to  dividends,  etc.,  etc.  (set  out  terms  and  condi- 
tions of  stock). 

Names.  Shares. 


RESOLUTION  AND  RECORD  ENTRY  017  DIRECTORS. 

Thereupon  Mr offered  and  Mr seconded 

the  following  resolution: 

WHEREAS,  The  three-fourths  in  number  of  the  stockholders   of  this  company, 
representing  three-fourths  of  the  capital  stock  of  the  company,  have  assented  in  \ 
ing  to  the  increase  of  the  capital  stock  of  this  company,  therefore,  be  it 

Resolved,  That  the  capital  stock  be  and  the  same  is  hereby  increased,  etc.,  etc. 
(See  resolution  below.) 

Said  resolution  was  put  by  the  president  and  a  vote  taken, votes  being 

cast  in  the  affirmative  and  none  in  the  negative,  and  said  resolution  was  declared 
carried. 

CERTIFICATE   OF   INCREASE  OF  CAPITAL   STOCK. 

(Preferred.) 

The Company  hereby  certifies  that  at  a  meeting  of  its 

directors,  held  at  the  office  of  said  Company  on  the day  of 

A.  D.  189 .  . ,  the  assent  in  writing  of  three-fourths  in  number  of  the  stockholders, 
representing  more  than  three-fourths  of  the  capital  stock  of  said  Company,  having 
been  first  previously  obtained,  the  following  resolution  was  adopted,  viz.: 

"  Resolved,  That  the  capital  stock  of  said  The Company 

be  and  the  same  is  hereby  increased  from  S to  S ,  and  that 

* of  said  increase  be  issued  and  disposed  of  as  preferred  stock,  in 

shares  of  S each,  and  that  the  purchasers  and  owners  thereof  be 

entitled   to   receive   a    dividend   on   said   preferred   stock   of    per   cent,    per 

annum,  out  of  the  annual  profits,  in  preference  to  and  before  any  dividend  is  paid  to 
other  stockholders,  and  that  the  holders  of  said  preferred  stock  may,  at  their  election, 
convert  the  same  into  common  stock,  and  the  President  and  Secretary  are  hereby 
authorized  to  carry  out  the  provisions  of  this  resolution,  and  issue  certificates  of  stock 
to  the  subscribers  thereof." 

In  Witness  Whereof,  said  The Company. 

has  caused  its  corporate  seal  to  be  hereto  affixed  and  its  Presi- 
dent and  Secretary  to  subscribe  this  certificate,  this 

day  of ,  A.  D.  18.  .  .  . 

The Company. 

Ry ,  President. 

Secretary. 

*  «  <|5 „ "  or  "  the  whole." 

Note. —  The  above  forms  have  been  pr-epar-ed  bo  as  to  correspond  to  the  forma  approved 
and  adopted  by  the  Secretary  of  State.  In  the  opinion  of  the  writer,  it  would  be  better  to 
have  the  matter  passed  on  by  the  stockholders,  for  the  reason  that  the  powers  of  the  board  of 
directors  cover  only  the  general  business  of  the  company.  (18  Oh.  St.  1505  167;  18  Wall 
[U.  S.]  233). 

RESOLUTION  AND  RECORD  ENTRY  OF  REDUCTION  OF  STOCK. 

Thereupon  Mr offered,  and  Mr seconded. 

the  following  resolution: 

WHEREAS,  The  persons  in  whose  names  a  majority  of  the  shares  of  the  capital 
stock  of  this  company  stands  on  the  books  of  the  company  have  consented  in  writing 

to  the  reduction  of  the  capital  stock  of  this  company  from  S to  S 

and  the  amount  of  each  share  from  S to  S 

Resolved,  therefore,  That  the  capital  stock  of  the Com- 
pany be  and  the  same  is  hereby  reduced  from  $ to  S 

and  the  amount  of  each  share  from  S to  $ that  certifi- 
cates for  the  outstanding  stock  be  issued  in  accordance  with  said  reduction,  on  the 
surrender  of  the  outstanding  certificates,  and  further,  that  the  president  and  secre- 
tary of  this  company  be  instructed  to  file  a  certificate  of  such  reduction  with  the 
secretary  of  state. 

Thereupon  the  president  put  said  resolution  and  the  same  was  adopted. 


684  Forms. 

Change  in  Number  of  Directors. 


WRITTEN   CONSENT   OF  STOCKHOLDERS. 

Ohio, ,  190.  . 

We,  the  undersigned,  consent  in  writing  to  the  reduction  of  the  capital  stock  of 

The Company  from  S .  .    to  $ and 

of  each  share  of  stock  from  $ .  .  . to  $ 

Names.  Shares. 


CERTIFICATE  OF  REDUCTION. 

The Company  hereby  certifies  that  at  a  meeting  of  the 

directors,  held  at  the  office  of  the  company  on  the day  of , 

190 .  . ,  the  consent  in  writing  of  the  owners  and  holders,  a  majority  of  the  shares  of 
the  capital  stock  of  said  company  having  been  first  previously  obtained,  the  follow- 
ing resolution  was  adopted: 

(Recite  resolution.) 

IN  WITNESS  WHEREOF,  Said  The Company  has  caused 

its  corporate  seal  to  be  hereto  affixed  and  its  president  and  secretary  to  subscribe  this 

certificate,  this day  of 190 .  . 

The . Company. 

By , 

President. 


§  3267. 
RESOLUTION  AND  RECORD  ENTRY  FOR  CHANGE  IN  NUMBER  OF  DIRECTORS. 

Thereupon  Mr offered,  and  Mr seconded, 

the  following  resolution: 

Resolved,  That  the  number  of  directors  of  this  company  be  increased  from 

to ,  that  said  directors  be  elected  at  this  meeting  and  shall  hold 

office  until  the  next  annual  meeting. 

The  president  put  said  resolution  and  the  following  vote  was  cast: 

Affirmative, shares;    Negative, shares. 

Thereupon  the  president  declared  said  resolution  adopted. 

Xote  In  case   a   manufacturing  corporation   increases   the   number   of   directors   at   a 

special  meeting  the  records  should  show  a  call  as  provided  in  §  3240.  The  resolution  should 
provide  for  holding  the  election.  When  the  resolution  is  for  a  decrease  and  the  terms  of  the 
acting  directors  have  not  expired,  the  resolution  should  provide  a  means  of  determining  who 
shall  "retire  unless  that  is  agreed  upon. 


§  3268. 

ANNUAL  STATEMENT  OF  CORPORATION. 

Statement  of  The Company  for  the  year  ending 

,  190. . 

(Show  assets  and  liabilities  by  copy  of  balance.) 

LIST  OF  STOCKHOLDERS. 

The  following  persons  are  the  stockholders  of  this  company: 

Names.  Shares.  Residence. 


Respectfully  submitted, 

> 

Treasurer. 

Xote.  —  For  corporation  accounting,  see  "  Corporation  Accounting  "  by  J.  J.  Rahill. 


For  685 

Consolidation  Agreements 


§^  2505b,  3381,  3443-12,  3470,  3864. 
AGREEMENT  AND  CERTIFICATE  OF  CONSOLIDATION. 

AGREEMENT  OF  CONSOLIDATION 

—  of  — 

The Co. 

—  and  — 
The Co. 

WHEREAS,  The  parties  hereto  are  corporations  duly  organized  and  existing 
under  the  laws  of  the  State  of  Ohio  and  desire  to  consolidate, 

NOW  THEREFORE  THIS  AGREEMENT  WITNESSETH,  That  the  said  com- 
panies acting  herein  by  the  authority  of  resolutions  of  their  respective  boards  of 
directors,  and  subject  to  the  ratification  of  their  respective  stockholders,  as  required 
by  law,  in  consideration  of  their  mutual  covenants,  agreements,  provisions  and  grants 
herein  contained  and  of  the  benefits  to  accrue  to  the  parties  hereto,  do  hereby  agree 
to  consolidate  their  business,  property  franchises  and  rights,  so  as  to  become  one  cor- 
poration, and  by  these  presents  do  merge  and  consolidate  their  capital  stock,  fran- 
chises and  property  into  one  corporation,  to  be  known  by  the  name  of  The 

Co.,  upon  the  following  terms  and  conditions,  to  wit: 

FIRST.  All  the  rights,  franchises,  privileges,  property,  appurtenances  of  every 
description,  choses  in  action,  debts,  dues,  and  demands  of  each  of  the  parties  hereto, 
shall  vest  in  the  consolidated  company. 

SECOND.  The  consolidated  company  shall  assume  and  be  bound  by  all  the  lia- 
bilities and  obligations  of  each  of  the  several  companies  parties  hereto. 

THIRD.     The  capital  stock  cf  the  consolidated  company  shall  be  8 

divided  into shares  cf  $ each. 

FOURTH.  The  directors  of  the  consolidated  company  shall  be in  num- 
ber, and  the  officers  shall  be  a  president,  a  vice-president,  a  secretary  and  a  treasurer. 
The  residences  of  said  directors  and  officers  shall  be  as  follows:  (In  case  of  railroads 
it  is  sometimes  desirable  to  have  fixed  the  residence  of  officers  and  directors  so  that  all 
parties  in  interest  will  be  represented.     See.  however,  §  3385). 

The  names  and  residences  of  the  first  directors  of  said  consolidated  company  are 
as  follows: 

Names.  Residences. 


The  names  and  residences  of  the  first  officers  are  as  follows: 

Names.  Residences. 

President  

Vice-President       

Secretary  

Treasurer  


FIFTH.  The  manner  of  converting  the  capital  stock  of  each  of  the  constituent 
companies  parties  hereto  into  the  capital  stock  of  the  consolidated  company  shall  be 
as  follows: 

A.  For  each  share  of  the  capital  stock  of  The Co. 

surrendered  to  the  consolidated  company  shall  be  issued  to  the  holder  thereof 

shares  of  the  capital  stock  of  the  consolidated  company. 

B.  (Proceed  in  the  same  manner  with  each  company). 

SIXTH.  The  several  constituent  companies,  each  for  itself  and  not  for  the  other, 
in  consideration  of  the  premises,  does  hereby  grant,  convey,  set  over  and  vest  in  the 
said  consolidated  company,  for  the  purpose  of  such  consolidation,  all  of  the  property, 
rights  privileges,  franchises,  etc.,  etc.,  and  powers  by  it  now  held,  or  in  or  to  which  it 
has  any  right,  title,  interest  or  claim  either  in  law  or  equity  wheresoever  the  same 
may  be  situated. 

IN  WITNESS  WHEREOF,  The  said  The Co.  by  its 

board  of  directors,  has  caused  its  corporate  seal  to  be  hereunto  affixed  and  these 
presents  to  be  signed  by  its  president  and  secretary,  and  a  majority  of  its  said  board 
of  directors  have  hereunto  set  their  hands  this day  of 190 .  .  ; 


686  Forms. 

Articles,  etc.,  of  Union  Depot  Company. 


and  the  said  The Co.  (proceed  as  with  the  first 

Company). 

The Co.,  The Co., 

By ,  By 

President.  President. 

Attest.  Attest. 


Secretary.  Secretary. 


Directors.  Directors. 

CERTIFICATE  OF  CONSOLIDATION. 

I ,  Secretary  of  The ■  •  • 

Company,  being  duly  authorized  in  the  premises,  do  hereby  certify  that  at  a  meeting 
of  the  stockholders  of  said  company,  duly,  regularly  and  separately  called  and  held 

at  the  office  of ,  in  the  City  of ,  County  of 

and  State  of  Ohio,  on  the    day  of    , 

190.  .,  at  which  meeting  all  the  stockholders  of  said  company  being  present  in  person 
or  by  proxy  waived,  in  writing,  the  written  or  printed  notices  of  the  time  and  place 
for  holding  of  said  meeting  to  be  given  by  personal  service,  mailing,  publication  or 
otherwise  and  consenting  in  writing  that  said  meeting  be  then  and  there  held,  the 
original  agreement  of  consolidation  of  which  the  foregoing  is  a  true  copy,  was  sub- 
mitted for  consideration  and  considered,  and  on  a  vote  by  ballot  being  taken  for  the 
adoption  or  rejection  of  the  same,  all  the  outstanding  capital  stock  of  said  Company, 
namely shares  (each  of  which  shares  being  fully  paid  and  non-assess- 
able) were  cast  for  the  adoption  of  said  agreement  and  no  vote  was  cast  for  the  rejec- 
tion of  the  same. 

IN  WITNESS  WHEREOF,  I  have  hereunto  set  my  hand  officially  and  fixed  the 

corporate  seal  of  said  Company,  this day  of ,  190 .  . 

> 

(Corporate  Seal.)  Secretary  of  The Co. 

Xote.  —  Attach  the  certificate  of  the  secretary  of  each  company,  making  the  same  con- 
form to  the  facts  as  to  the  manner,  time  and  place  of  calling  the  meeting.  Only  two-thirds 
of  all  the  votes  cast  at  the  meeting  are  necessary  for  the  adoption  of  the  agreement.  The 
form  here  given  is  the  basis  of  the  usual  agreement,  but  further  details  as  to  terms  and  con- 
ditions or  the  manner  of  carrying  the  consolidation  into  effect  may  be  inserted. 


§  3443-8. 
ARTICLES  FOR  STREET  AND  INTERURBAN  RAILWAY. 
THIRD.  Said  corporation  is  formed  for  the  purpose  of  constructing,  operating, 
maintaining  and  owning  a  line  of  street  railway  for  the  carrying  of  passengers  and 
freight  to  be  run  by  electricity  or  by  some  motive  power  other  than  steam,  with  single 
or  double  tracks,  side  tracks,  turn-outs,  and  switches,  stations,  power  houses,  shops 
and  stables,  telephone  and  telegraph  lines  for  its  own  use;  of  acquiring  and  holding 
real  estate  and  all  accessories  and  appliances  proper  to  carry  out  the  purpose  herein 
mentioned  and  with  the  right  to  lease,  purchase  or  sub-lease  any  line  of  street  rail- 
way. Said  line  of  railway  shall  begin  in  the  city  of  Columbus,  and  extend  south- 
westwardly  to  Grove  City,  Morgan's  Station,  Mt.  Sterling  and  Washington  C.  H.,  and 
occupy  territory  in  the  counties  of  Franklin,  Madison  and  Fayette,  all  in  the  State 
of  Ohio. 

§  3446. 

UNION  DEPOT  COMPANY. 

(Filed  August  20th,  1872.     Vol.  11,  Page  180.) 

The  Cleveland,   Columbus,  Cincinnati  and  Indianapolis  Railway  Company,   and 

the   Pittsburgh,    Cincinnati    and   St.    Louis   Railway   Company   have   and   do    hereby 

through  the  presidents  of  said  companies,  and  by  direction  of  the  respective  Boards 

of  Directors  of  said  companies,  enter  into  Articles  of  Association  in  pursuance  of  the 


Forms.  687 

Insurance  Companies — Articles  of. 

act  of  the  General  Assembly  of  Ohio,  entitled  "  An  Act  to  authorize  the  Incoi 
of  Union  Depots,"  passed  April  3,  1868. 

WHEREAS,  The  said  companies'  lines  of  railroad  connect,  at  thfl  City  of  Coin: 
in  the  State  of  Ohio;  and  for  the  purpose  of  purchasing  depol  and   lor,-.- . 

constructing,  keeping-  up,  and  maintaining   a  common,  or    Union   Station    boUM 
passenger  depot,  and  a  union  railroad,  by  two  or  more  tracks,   connecting    the   rail- 
roads  of  said  companies,  and  other  railroad  for  business  purposes,  the  said  companies 
hereby  create  a  Union  Depot  Corporation  under  the  nbove-ment  Loned  I 

1.  The  said  Company  assumes  the  name  of  "  UNION  DEPOT  COMPANY.-' 

2.  The  names  of  said  two  railroad  companies  creating  the  said  corporation,  and 
uniting   in   their   articles   of  association   are:      The   Cleveland,   Columbus,   Cincis 
and   Indianapolis   Railroad   Company   and   The   Pittsburg,    Cincinnati   and    St.    L 
Railway  Company. 

3.  The  proposed  Union  Depot  and  tracks  are  situated  in  Columbus.  Ohio. 

4.  The  amount  of  capital  stock  necessary  tc  obtain  a  site  and  construct  and  D 
tain  said  depot  and  tracks  is  fixed  at  Eive  Hundred  Thousand  Dollars   ($500,000). 

The  said  capital  stock  to  be  held  and  owned  in  equal  proportions,  by  the  al 
named  corporators,  subject  to  such  articles  and  trusts  by  each,  as  they  may  respec- 
tively agree  upon. 

5.  The  Board  of  Directors  of  said  Union  Depot  Company  shall  consist  of  six  (6) 
Directors;  each  of  the  two  stockholders  in  said  depot  corporation,  or  its  successors  or 
assigns,  holding  or  owning  its  said  capital  stock  to  appoint  three,  and  each  to  fill 
vacancies  occurring  among  the  three  members  appointed  by  it. 

The  concurrence  of  two-thirds  of  said  Directors  shall  be  necessary  to  constitute  an 
act  of  the  Board. 

The  capital  stock  of  the  Pittsburgh,  Cincinnati  and  St.  Louis  Railway  Company 
in  said  Union  Depot  Company  to  be  subject  to  such  trusts  and  conditions  as  may  be 
agreed  upon  between  the  Pittsburgh,  Cincinnati  and  St.  Louis  Railway  Company  and 
the  Little  Miami  and  Columbus  and  Xenia  Railroad  Companies. 

IN  WITNESS  WHEREOF,  The  Presidents  of  said  Companies,  in  behalf  of  said 
Companies,  have  hereunto  signed  their  names,  and  annexed  the  corporate  seals  of  said 
Companies  this  seventeenth  day  of  July,  A.  D.  1872. 

The  Cleveland,  Columbus,  Cincinnati  and  Indianapolis  Railway  Company. 

By  Oscar  Townsend, 
Attest.  President. 

Geo.  Russell,  Secy. 

(Seal.)  .  ,  „      T       .     „    ., 

The  Pittsburgh,  Cincinnati,  and  St.  Louis  Railway  Company. 

By  Thomas  A.  .Scott. 
Attest.  President. 

W.  H.  Barnes, 

Secy.  (Seal.) 


§  3588. 
ARTICLES  FOR  LIFE  INSURANCE   CO. 

ARTICLES  OF  INCORPORATION 

—  of  — 
THE  NORTHERN  CENTRAL  LIFE  INSURANCE  COMPANY. 
We  the  undersigned,  citizens  of  the  State  of  Ohio,  desiring  to  become  a  body  cor- 
porate under  the  laws  of  the  State  of  Ohio,  have  associated  ourselves  together  to 
form  a  joint  stock  insurance  company,  to  insure  the  lives  of  persons  upon  the  stock 
plan,  and  we  do  hereby  certify  that  the  name  assumed  by  such  Company  is  The 
Northern  Central  Life  Insurance  Company;  that  the  object  for  which  said  Compan;, 
is  Jormed  is  to  insure  the  lives  of  persons  in  and  out  of  the  State  of  Ohio;  that  the 
capital  stock  of  said  Company  is  8100,000;  that  the  place  where  the  principal  office  of 
safd  Company  is  located  is  the  City  of  Toledo.  Lucas  County,  Ohio,  and  that  said 
Company  proposes  to  adopt  the  following  charter: 

CHARTER. 
1     The   name    of    said   Company   shall    be   THE    NORTHERN    CENTRAL    LIFE 

^^fd^o^o^nTs   to   be   located   at   Toledo   in   Lucas   County.   Ohio,   and   its 
principal  business  there  transacted. 


688  Forms. 

Insurance  Companies  —  Articles  of. 

3.  The  said  corporation  is  formed  for  the  purpose  of  insuring  the  lives  of  persons 
upon  the  stock  plan. 

4.  The  corporate  powers  of  said  Company  are  to  be  exercised  according  to  the 
provisions  of  Chapter  10  of  the  Revised  Statutes  of  Ohio  and  of  the  By-Laws  of  said 
Company. 

5.  The  number  of  Directors  of  said  Company  is  nine  (9),  all  of  whom  are  stock- 
holders, and  which  number  may  be  increased  at  the  will  of  the  stockholders  repre- 
senting a  majority  of  the  stock,  to  any  number  not  exceeding  twenty-one  (21).  Said 
Directors  shall  be  elected  at  the  annual  meeting  of  the  stockholders  on  the  second 
Tuesday  of  January,  and  the  other  officers  of  said  Company  shall  be  elected  annually 
by  the  Board  of  Directors,  at  the  first  regular  or  special  meeting  after  said  annual 
election.  A  majority  of  said  Directors  shall  be  residents  of  the  State  of  Ohio,  and  in 
the  event  of  a  vacancy  occurring  in  said  Board  by  death  or  otherwise,  the  same  shall 
be  filled  by  the  unanimous  vote  of  the  Board  of  Directors  until  the  next  annual 
election. 

6.  The  capital  stock  of  said  Company  shall  be  One  Hundred  Thousand  Dollars 
($100,000),  divided  into  four  thousand  (4,000)  shares  of  Twenty-five  Dollars 
($25.00)  each. 

(Signatures  of  net  less  than  thirteen  incorporators,  acknowledgment  before 
notary  and  clerk's  certificate  in  usual  form.) 

Note.  —  This  form,  with  the  exception  of  that  part  pertaining  to  the  objects  of  the  cor- 
poration, may  be  vised  in  the  subsequent  articles  relative  to  insurance  companies. 


§  3630. 

MUTUAL  PROTECTION  ASSOCIATIONS. 

The  Ultra  Standard  Life  Insurance  Company. 

THIRD.  The  purpose  for  which  said  corporation  is  formed  is  to  transact  the 
business  of  life  insurance  on  the  assessment  plan,  for  the  purpose  of  mutual  protec- 
tion and  relief  of  its  members,  and  for  the  payment  of  stipulated  sums  of  money  to 
the  families,  heirs,  executors,  administrators  or  assigns  of  deceased  members  of  such 
company,  as  the  member  may  direct,  as  may  be  provided  in  the  by-laws,  and  may 
receive  money  by  voluntary  donation  or  contribution,  or  collect  the  same  by  assess- 
ments on  its  members,  and  may  accumulate,  invest,  distribute  and  appropriate  the 
same  in  such  manner  as  it  may  deem  proper,  according  to  section  3630,  Revised 
Statutes  of  Ohio. 

The  Mutual  Beneficial  Association  of  Delaware,  Ohio. 

THIRD.  The  purpose  for  which  said  corporation  is  formed  is  to  transact  the 
business  of  industrial  life  insurance  on  the  assessment  plan  for  the  purpose  of 
mutual  protection  and  relief  of  its  members  under  section  3630  of  the  Revised 
Statutes,  and  for  the  payment  of  stipulated  sums  of  money  to  the  families,  heirs, 
executors,  administrators  or  assigns  of  the  deceased  members  of  such  Company  or 
Association,  in  such  manner  as  may  be  prescribed  by  the  rules  and  regulations  of 
the  association,  not  inconsistent  with  the  laws  of  Ohio,  and  so  as  to  carry  out  the 
objects  and  purposes  of  the  association  as  above  expressed. 

The  Cleveland  Commercial  Travelers'  Association. 

THIRD.  That  our  purpose  is  to  afford  mutual  protection  and  relief  to  our  mem- 
bers, and  to  pay  stipulated  sums  of  money  to  the  families,  heirs,  executors,  adminis- 
trators or  assigns  of  the  deceased  members  of  our  association,  as  the  members  may 
direct,  in  such  manner  as  may  be  provided  in  our  by-laws,  and  to  pay  stipulated  sums 
of  money  to  our  members  in  case  of  partial  or  totally  disabling  injuries,  as  may  also 
be  provided  and  directed  in  our  by-laws. 


§  3630i. 

ACCIDENT  INSURANCE  CO. 

The  Mutual  Accident  Life  Insurance  Company. 

THIRD.  The  purpose  for  which  said  corporation  is  formed  is  for  the  insuring  of 
individuals  against  accidental  personal  injury  and  loss  of  life  sustained  by  accident, 
and  making  all  and  every  insurance  connected  with  accidental  loss  of  life  and  personal 


Forms.  689 

Insurance,  etc.,  Companies  —  Articles  of. 

injury  occasioned  by  accident,  and  for  the  purpose  of   doing-  a  purely  Life 

insurance  business  in  accordance  with  the  statutes  of  the  State  of  Ohio. 
(Only  requires  five  incorporators.     See  also  §  3670.) 


§  3631a. 

MUTUAL  AID  ASSOCIATION. 

The  Findlay  Mutual  Aid  Association. 

THIRD.  The  purpose  for  which  said  corporation  is  formed  is  to  promote  socia- 
bility among-  fellow  workmen,  to  assist  its  members  in  sickness  or  distress,  and  aid 
the  families  of  deceased  members  by  voluntary  contributions  under  rules,  regulations 
and  by-laws  to  be  adopted. 

MUTUAL  AID  ASSOCIATION. 

The  Middle  Age  Mutual  Aid  Association. 

THIRD.  The  purpose  for  which  said  corporation  is  formed  is  not  prone,  but  is 
the  mutual  protection  and  relief  of  its  members,  to  elevate  their  social,  moral,  and 
intellectual  condition,  and  for  the  payment  of  stipulated  sums  of  money  to  the 
families  or  heirs  of  deceased  members  of  said  association. 


§§  3631-11  and  3631-17. 
FRATERNAL  BENEFICIARY  ASSOCIATIONS. 

The  Odd  Fellows'  National  Beneficial  Association,  of  Dayton,  Ohio. 

THIRD.  The  objects  and  purposes  of  this  association  shall  be  to  afford  relief  to 
the  families  and  beneficiaries  of  deceased  members,  by  the  payment  of  stipulated 
sums  of  money  to  the  widow,  heirs,  blood  relatives  or  affianced  wife  of  such  deceased 
member,  and  for  no  other  purpose  whatever. 

This  association  shall  have  no  capital  stock,  being  for  a  purpose  other  than  profit. 
*  The  requisite  qualifications  for  membership  in  this  association  shall  be  that  thp 
applicant  be  an  affiliated  member  in  good  standing  of  the  "  Independent  Order  of  Odd 
Fellows." 

The  National  Masonic  Provident  Association. 

THIRD.  The  purpose  for  which  said  corporation  is  formed  is  not  for  profit,  but 
for  the  cultivation  of  fraternal  feeling  among  Free  and  Accepted  Masons,  and  the 
mutual  protection  and  relief  of  such  members  as  may  become  members  of  this  asso- 
ciation, and  for  the  payment  of  such  sums  of  money  as  may  be  provided  by  the 
by-laws  of  the  association,  for  the  support  of  all  its  members  who  may  have  become 
temporarily  disabled  by  sickness  from  any  cause  not  their  own. 

The  American  Insurance  Union. 

"  THIRD.  The  purpose  for  which  said  corporation  is  formed  is  to  establish  and 
maintain  a  Secret  Society  and  Benevolent  Order,  to  promote  patriotism  in  our  country, 
love  and  fidelity  in  our  homes  and  fraternity  among  men,  with  power  under  the 
supervision  of  the  Ohio  Insurance  Department,  to  transact  the  business  of  life  and 
accident  insurance  on  the  assessment  plan,  for  the  mutual  benefit,  protection  and 
relief  of  its  members,  and  the  families,  heirs,  executors,  administrators  or  assigns  of 
its  deceased  members,  as  the  member  may  direct,  in  such  manner  as  may  be  provided 
in  the  by-laws,  and  to  receive  money  by  voluntary  donation  or  contribution  and  to 
collect  the  same  by  assessments  on  its  members,  voluntarily  paid,  and  to  accumulate, 
invest,  distribute  and  appropriate  the  same  in  such  manner  as  it  may  deem  proper. 
All  accumulations  and  accretions  thereon  shall  be  held  and  used  as  the  property  of 
the  members,  and  in  the  interest  of  the  members  and  shall  not  be  loaned  to.  used, 
appropriated  or  invested  for  the  benefit  of  any  officer  or  manager  of  this  corporation." 

*  This  clause  may  bo  omitted  from  charter  and  included  in  constitution  nr  bvln-  s. 
Requires  but  seven  incorporators. 

Requires  certificate  of  two  of  association's  officers  showing  certain  number  of  subscribers 
and  certain  sum  deposited;    see  S  3631-17. 


690  Forms. 

Insurance,  etc.,  Companies  —  Articles  of. 

The  Society  of  the  Porto  Rican  Expedition. 

THIRD.  The  purpose  for  which  said  corporation  is  formed  is  to  preserve  and 
cultivate  the  memories  of  an  important  incident  of  the  War  with  Spain;  to  perpetuate 
the  friendships  and  fraternity  made  during  the  service  of  the  Expedition  to  Porto 
Rica  and  the  subsequent  occupation  of  the  island.  To  compile  the  records,  roll  and 
history  of  this  important  event  and  to  add  mortuary  report  as  these  sad  events  trans- 
pire. To  defend  the  interests  of  the  American  soldier  and  sailor  and  to  especially 
champion  the  claims  and  rights  of  all  who  served  with  the  expedition.  To  aid  the 
living  when  the  cry  of  distress  comes  from  the  lips  of  the  deserving  and  to  remember 
the  dead  and  bereaved  ones  left  behind.  To  teach  the  principles  of  freedom,  humanity 
and  loyalty  to  country  and  flag,  to  the  end  that  our  existence  may  be  helpful  to 
liberty-loving  people  and  a  source  of  benefit  to  future  generations. 


§  3631-24. 

ARTICLES  FOR  COMPANIES   ON  STIPULATED   PREMIUM  PLAN. 

The  Inter-State  Life  Assurance  Company. 

THIRD.     The  purpose  for  which  said  corporation  is  formed  is  to  make  insurances 

upon  the  lives  and  health  of  individuals,  and  every  insurance  appertaining  thereto 

or  connected  therewith,  as  set  forth  in  "  An  Act  to  provide  for  the  incorporation  and 

regulation  of  corporations,  companies,  or  associations  transacting  the  business  of  life 

insurance  on   the  stipulated  premium  plan  as  herein   defined."     Passed   April  25th, 

1898. 

Note.  —  Only  five  incorporators  are  required,  but  see  §  3621-25  as  to  when  company  may 
commence  business. 


§§  3634  and  3641. 

LIVE  STOCK  INSURANCE  COMPANY. 

The  Cleveland  Live  Stock  Insurance  Company. 

THIRD.     Said  corporation  is  formed  for  the  purpose  of  making  insurance  on  the 

lives  of  horses,  mules  and  other  domestic  animals,  and  protecting  owners  against  the 

loss  thereof,  and  to   do   all  things   incidental   to,   or  connected  with  said   business. 

FIRE  INSURANCE  COMPANY. 
The  Cleveland  Fire  Insurance  Co. 
THIRD.  Said  corporation  is  formed  for  the  purpose  of  insuring  houses,  build- 
ings and  all  other  kinds  of  property  against  loss  or  damage  by  fire  and  lightning  and 
tornadoes,  in  and  out  of  the  State,  and  make  all  kinds  of  insurance  on  goods,  merchan- 
dise and  other  property  in  the  course  of  transportation,  whether  on  land  or  water,  or 
on  any  vessel  or  boat  wherever  the  same  may  be,  and  to  do  all  things  lawful  and 
incidental  thereto. 

GUARANTY  COMPANIES. 

The  Guaranty  Title  and  Trust  Company. 
(Filed  February  10th,  1898.     Vol.  77,  Page  33.) 

THIRD.     Said  corporation  is  formed  for  the  purpose  of: 

1st.  Preparing,  furnishing  or  procuring,  by  purchase  or  otherwise,  abstracts  and 
certificates  of  title  to  real  estate,  bonds,  mortgages  and  other  securities. 

2nd.  For  the  purpose  of  guaranteeing  titles  to  real  estate,  bonds,  mortgages  and 
other  property  and  securities. 

3rd.  For  the  purpose  of  making  and  negotiating  loans  on  real  estate  and  notes, 
bills  of  exchange  and  ether  evidences  of  debt  for  itself  and  others,  and  to  collect  and 
guarantee  the  collection  of  interest  and  principal  of  loans  made  or  negotiated  by  it; 
to  effect  investments  in  notes  and  mortgages  secured  by  real  estate,  to  sell  the  same, 
and  pledge  the  same  as  security  for  money  deposited,  loaned  or  entrusted  to  it. 

4th.  For  the  purpose  of  taking  charge  of  and  selling,  mortgaging,  renting  or 
otherwise  disposing  of  real  estate  for  others,  and  generally  to  perform  all  the  ordinarv 
duties  of  an  agent  relative  to  property  so  placed  at  its  disposal,  and  to  guarantee  the 
collection  of  rents  and  income  of  property  so  controlled  by  it. 

5th.  For  the  purpose  of  owning  real  estate,  as  a  place  for  carrying  on  its  business, 
and  to  do  any  and  all  things  necessary  or  incidental  to  an  abstract,  title  srua ranter 
and  loaning  business,  and  the  transaction  of  any  and  all  business  incidentally  or 
necessarily  connected  with  each  or  all  of  the  foregoing  provisions. 


Forms.  691 

Insurance,  etc.,  Companies  —  Articles  of. 


The  Ohio  Guaranty  Company. 

THIRD.     Said  corporation  is  formed  for  the  purpose  of  executing  and  guarantee- 
ing" honds  of  employes  and  officers  of  private,  municipal  and   political   corporatl 
bonds  of  executors,  administrators,  guardians,  receivers,  assignees  and  and 

of  guaranteeing  the  fidelity  of  all  persons  holding  places  of  public  or   pri'V 
who  may  be  required  to,  or  do,  in  their  trust  capacity,  receive,  hold,  control  01 
tribute  public  or  private  moneys  or  property;  of  guaranteeing  titles  to  real   prop* 
and  of  making  abstracts  of  public  records;  of  guaranteeing  bids  of  contra 
public  or  private  work,  and  of  guaranteeing  the  performance  of  all  contracts  other 
than  insurance  policies;  and  of  executing  and  guaranteeing  bonds  and  and* 
required  or  permitted  in  all  actions  or  proceedings,  or  by  law  allowed;  and   pur] 
incidental  thereto. 

(Requires  but  five  incorporators.     Articles  must  be  approved  by  attorney-general, 
§  3632.) 

§§  3686  and  3687. 
ARTICLES  FOR  MUTUAL  PROTECTION  ASSOCIATION. 

The  Mutual  Tornado,  Cyclone  and  Windstorm  Insurance  Association. 

THIRD.  The  object  of  said  association  shall  be,  and  shall  only  be,  to  insure  its 
members  against  loss  or  damage  by  cyclones,  tornadoes  or  windstorms,  and  to  assume 
the  rights,  power  and  privileges  that  are  now  or  may  hereafter  be  conferred  by 
governing  mutual  insurance  associations,  organized  under  §§  3686  and  3687;  may 
sue  or  be  sued,  have  a  common  seal,  and  a  right  to  borrow  money  to  pay  losses  and 
expenses,  till  same  can  be  raised  by  an  assessment;  to  enforce  any  contract  which 
may  be  by  them  entered  into,  by  which  those  entering  therein,  agree  to  be  assessed 
specifically  for  incidental  purposes,  and  for  the  payment  of  losses  which  may  occur 
to  any  members  of  said  association. 

(Requires  not  less  than  ten  incorporators.) 


§  3691-1. 
MUTUAL   COMPANIES  FOR  INSURING  ANIMALS. 
The  Mutual  Protective  Association. 
THIRD.     The  object  of  said  association  shall  be  to  insure  its  members  against  loss 
resulting  from  death  of  horses,  mules  and  other  domestic  animals;  and  to  enforce  any 
contract  which  may  be  entered  into  by  its  members,  by  which  they  agree  to  be  assessed 
specifically  for  the  payment  of  losses  which  may  occur  to  any  members  of  said  asso- 
ciation and  for  purposes  incidental  thereto. 
(Requires  only  five  incorporators.) 


§  3691-14. 
CREDIT  GUARANTY  COMPANY. 
The  Toledo  Credit  Guaranty  Company. 
THIRD      The  object  of  said  company  shall  be  to  guarantee  and  indemnify  mer- 
chants  traders,  manufacturers  and  others  engaged  in  business  pursuits,  against  losses 
occasioned  by  the  giving  and  extending  of  credit  by  them  to  their  customers  and 
others  trading  with  them;  to  buy,  hold  and  take  on  assignment  any  and  all  claims 
and  accounts  so  guaranteed  by  it,  with  power  to  hold,  collect  or  enforce  the  same  by 
proper  action;  and  to  guarantee  the  payment  of  money  under  contracts  of  hire  for 
personal  services.  ,  ,  ,  .  s 

(Requires  but  five  incorporators.     Articles  must  be  approved  by  attorney-general.) 

§  3705-11. 
ASSOCIATION  FOR  APPREHENDING  HORSE  THIEVES. 
PROTECTIVE  ASSOCIATION. 
The  Old  Town  Run  Protection  Association. 
(Filed  Jan.  30th,  1900.     Vol.  76,  Page  336.) 
THIRD.     The  purpose  for  which  said  corporation  is  formed  is  for  the  apprehen- 
sion and  conviction  of  horse-thieves  and  other  felons. 


592  Forms. 

Colleges,   etc. —  Articles    of. 


PROTECTIVE  ASSOCIATION. 

The  Citizens'  Protective  Association. 
(Filed  January  19th,  1901.  Vol.  85,  Page  52.) 
THIRD  The  purpose  for  which  said  corporation  is  formed  is  to  apprehend  and 
convict  horse  thieves  and  other  felons,  under  and  in  accordance  with  an  act  of  the 
General  Assembly  of  the  State  of  Ohio,  passed  March  21st,  1887,  entitled  an  act  for 
the  apprehension  and  conviction  of  horse  thieves  and  other  felons  (84  O  L.  169  ) 
Also,  under  and  in  accordance  with  an  amendment  passed  April  28th,  1890.  (87  O. 
L.  339  and  340.) 

Note.  —  See  §  3709a. 


§  3716. 

ARTICLES  FOR  HUMANE  SOCIETIES. 

HUMANE  SOCIETY. 

The  Akron  Humane  Society. 

(Filed  January  2nd,  1901.     Vol.  82.  Page  236.) 

Minutes  of  meeting  held  at  Akron,  O.,  for  the  organization  of  a  Humane  Society. 

At  a  meeting  of  citizens  held  at  the  Mayor's  Office.  City  Building,  Akron,  O., 

December  18th    1900,  for  the  purpose  of  effecting  the  organization  of  a  Society  for  the 

Prevention  of  Cruelty  to  Animals  and  Children.  Chas.  T.  Inman  was  elected  temporary 

chairman  and  Chas.  Benner,  secretary.     A  permanent  organization  was  then  effected, 

as  follows:  ,     ,,       ,   ..     _        T . 

A  T  Pai^e  President;  Chas.  T.  Inman,  Secretary;  Joseph  Kendall,  Jos.  Limric. 
M.  h!  Hoye,  C.  U.  Button,  Chas.  T.  Inman,  A.  T.  Paige  and  H.  W.  Manderbach, 
Dii*6ctors 

It  was  moved  and  seconded  that  this  organization  be  known  as  THE  AKRON 
HUMANE  SOCIETY,  Branch  of  the  Ohio  Humane  Society. 

The  Secretary  was  instructed  to  secure  the  necessary  articles  of  incorporation  from 
the  Secretary  of  State  and  to  communicate  with  the  Ohio  Humane  Society.     On  motion 

adiourned.  „         _    T  _     , 

J  Chas.  T.  Inman,  Sec'y. 

Akron.  0.,  Dec.  28th,  1900. 

I  the  undersigned,  do  hereby  certify  that  the  accompanying  is  a  true  and  exact 
copy  of  the  proceedings  of  a  meeting  held  December  18th,  1900,  at  the  Mayor's  Office, 
Akron,  O.,  for  the  purpose  of  effecting  an  organization  for  the  prevention  of  cruelty 
to  animals  and  children.  Chas.  T.  Inman,  Sec'y. 


§  3726. 
ARTICLES  OF  COLLEGE  CORPORATION. 

MEDICAL  UNIVERSITY. 
The  Ohio  Medical  University. 
(Filed  Dec.  31,  1890.     Vol.  53,  Fage  87.) 
THIRD      The  purpose  for  which  said  corporation  is  formed  is  the  originating, 
conducting,"  and  maintaining  a  Medical  University,  consisting  of  a  school  of  Medicine, 
a  school  of  Dentistry,  a  school  of  Pharmacy,  a  school  of  Midwifery,  and  a  Training 
School  for  Nurses,  and  teaching  the  art  and  science  of  medicine  and  surgery,  the  art 
and  science  of  Pharmacy,  the  art  and  science  of  Obstetrics,  and  the  art  and  science  of 
Nursing    to  both  sexes;  the  conducting  of  medical  dispensaries  and  a  hospital  in  con- 
nection therewith;  the  conferring  upon  such  persons  as  are  qualified  the  degree  of 
Doctor  of  Medicine,  the  degree  of  Doctor  of  Dental  Surgery,  the  degree  of  Graduate 
of  Pharmacy,  the  degree  of  Doctor  of  Midwifery,  and  a  certificate  of  proficiency  in 
nursing;   and   to   receive,   hold   and   apply   thereto   any   funds   or   property    lawfully 
acquired  by  said  corporation. 


Forms.  693 

Religious  Corporations  —  Consolidation   of. 

FORM  FOR  SCHEDULE  OF  PROPERTY. 

SCHEDULE  OF  PROPERTY. 

The  West  Lafayette  College. 

(Filed  August  30th,  1900.     Vol.  86,  Page  15.) 

The  West  Lafayette  College. 
Verified  Schedule  of  Value  of  Property. 

West  Lafayette,  Ohio,  July  11th,  1900. 
To  the  Honorable  Secretary  of  State  of  the  State  of  Ohio,  Columbus,  Ohio.: 

Sir.  —  The  undersigned,   Trustees  of  The  West  Lafayette   College,   a  corpo: 
under  the  laws   of  Ohio,   and   incorporated   for   the  purpose  of   promoting   education, 
hereby  certify  that  said  corporation  has  acquired  real  and  personal  property   to   the 
value  of  more  than  Five  Thousand  Dollars  ($5,000.00).     A  Schedule  of  the  kind 
value  of  which  is  hereto  attached  and  marked  "  Exhibit  A,"  and  made  a  part  hereof. 

W.  L.  Wells. 
S.  A.  Fisher. 
Joseph  Porteus. 
J.    W.    Cassingham. 
H.  C.  Ferguson. 

Sworn  to  and  subscribed  before  me  by  the  above  named  W.  L.  Wells,  S.  A.  Fisher, 
J.  W.  Cassingham,  Joseph  Porteus  and  H.  C.  Ferguson,  tnis  11th  day  of  July,  A.  D. 
1900. 

W.  R.  Pomerene, 
(Seal.)  Notary  Public. 

Schedule  "  A." 
Being  a  Schedule  of  the  Kind  and  Value  of  Property  Owned  by  the  Corporation 
of  The  West  Lafayette  College. 

§§  3767,  3768. 
ARTICLES  STATING  ORGANIC  RULES,  ETC. 
Note .  —  Use  the  usual  form  of  articles  of  corporation  not   for  profit   setting  forth  in  the 
purpose  clause  the  special  items.     Any  fair  statement  of  amendment   with  certificate  oi  trus- 
tees will  be  sufficient  under  §  3708. 


§  3777. 

FORM  FOR  CONSOLIDATION  OF  RELIGIOUS  CORPORATIONS. 

Park  Presbyterian  Church  of  the  City  of  Dayton. 

(Filed  March  20th,  1901.     Vol.  82,  Page  284.) 


AGREEMENT. 


WHEREAS  The  Wayne  Avenue  Presbyterian  Church  of  the  City  of  Dayton.  Ohio. 
a  corporation  dulv  incorporated  and  organized  under  the  laws  of  Ohio,  and  the  Park 
Presbyterian  Church  of  the  City  of  Dayton,  Ohio,  a  corporation  duly  incorporated  and 
organized  under  the  laws  of  Ohio,  both  of  which  are  religious  societies  and  churches 
recognizing  the  same  ecclesiastical  jurisdiction,  form  of  faith,  government,  order  and 
discipline, °and  desire  to  be  consolidated  or  united  as  a  single  corporation; 

THEREFORE  We,  the  subscribers.  William  S.  Belden.  Preston  C.  Dodds.  Charles 
W  Salisbury,  Ezra  Pentoney  and  Henry  A.  Hunter,  elders;  John  W.  Strahl  and 
George  B.  Eddingfield,  deacons;  and  Odlin  Speice.  Charles  W.  Salisbury.  Louis  J. 
Weireter,  Thomas  W.  Williams  and  Ellwood  Fellers,  trustees  of  Wayne  Avenue 
Presbyterian  Church;  and  Isaac  B.  Young,  Robert  Rochester.  Adam  W.  Anderson. 
John  E  Viot,  Edward  C.  Crum,  William  J.  Jones,  Hugh  W.  Kimes  and  William  L. 
Johnston,  elders;  Clarence  S.  Wiggim.  Frank  M.  Jones.  John  Kuhns  and  Edward 
Mehlberth,  deacons;  and  Edward  C.  Crum,  James  H.  Home,  William  Protzman.  John 
A  Case  and  William  J.  Jones,  trustees  of  Park  Presbyterian  Church  have  and  do 
hereby  enter  into  an  agreement  for  such  union  or  consolidation,  and  do  hereby  pre- 
scribe the  following  terms  and  conditions  thereof,  to  wit  : 

FIRST.     The  property,  real,  personal  and  mixed,  of  Wayne  Avenue  Presbyterian 


LAW  GOV.   PRIV.   COR. —  42. 


694  Forms. 

Endowment  Fund  Companies  —  Articles  of. 

Church  and  Park  Presbyterian  Church  shall  become  and  be  the  property  of  the  new 
corporation. 

SECOND.  The  new  corporation  shall  assume  and  pay  all  the  debts  and  liabilities 
remaining  unpaid  by  either  or  both  of  said  churches. 

THIRD.  The  pastor,  elders  and  deacons  of  Park  Presbyterian  Church  shall  be 
and  remain  the  pastor,  elders  and  deacons  of  the  consolidated  church  until  the  expi- 
ration of  the  terms  for  which  they  are  now  respectively  elected. 

FOURTH.  That  such  religious  services  shall  be  held  in  the  two  buildings  as  the 
pastor  and  session  shall  from  time  to  time  deem  best. 

FIFTH.  The  corporate  name  of  such  united  church  shall  be  Park  Presbyterian 
Church,  of  the  City  of  Dayton,  Ohio. 

SIXTH.  The  time  for  holding  the  first  meeting  of  the  new  corporation  shall  be 
Wednesday,  October  31st,  1900,  at  8  o'clock  P.  M.,  and  the  place  shall  be  the  church 

rooms  of  the  Park  Presbyterian  Church  at  No North  St.  Clair  Street  in  the 

City  of  Dayton,  Ohio. 

SEVENTH.  There  shall  be  chosen  two  (2)  members  of  Wayne  Avenue  Presby- 
terian Church  and  six  (6)  members  of  Park  Presbyterian  Church  as  trustees  for  the 
new  corporation,  to  succeed  to  the  rights,  trusts  and  duties  and  obligations  of  the 
trustees  of  the  said  separate  churches. 

Peter  E.  Pentoney,  Isaac  B.  Young, 

William  S.  Belden,  Adam  W.  Anderson, 

Preston  C.  Dodds,  William   J.   Jones, 

Henry  A  Hunter,  John  E.  Viot. 

Charles  W.  Salisbury,  William  E.  Johnston, 

Elders    of   Wayne    Ave.    Presby-  Robert  Rochester, 

terian  Church.  Ewd.  C.  Crum, 

Hugh  W.  Kimes, 
Geo.  P..  Fddingfield,  Elders  of  Park  Presbyterian 

John  W.  Strahl,  Church. 

Deacons  of  Wayne  Ave.  Presby- 
terian Church.  Clarence  Staley  Wiggim, 

Frank  M.  Jones, 
Odlin  Speice,  John  P.  Kuhns, 

Louis  J.  Weireter,  Edward  Mehlberth, 

Thomas  W.  Williams,  Deacons  of  Park  Presbyterian 

Charles  W.  Salisbury,  Church. 

Ellwood  Fellers, 

Trustees  of  Wayne  Ave.  Presby-  Ewd.  C.  Crum, 

terian  Church.  Jas.  H.  Home, 

Wm.  Protzman, 
John  A.  Case, 
William  J.  Jones, 

Trustees     of     Park     Presby- 
terian Church. 
To  The  Hon.  Secretary  of  State, 

Columbus,  Ohio: 
I,  H.  A.  Hunter,  Clerk  of  the  first  meeting  of  the  united  corporations  held  in  pur- 
suance of  the  above  agreement,  Wednesday,  October  31st,  1900,  at  8  o'clock  P.  M., 
at  the  church  rooms  of  the  Park  Presbyterian  Church,  North  St.  Clair  Street,  in  the 
City  of  Dayton,  Ohio,  to  which  meeting  the  foregoing  agreement  and  the  proceedings 
and  acts  of  the  several  churches  and  parties  thereto,  were  submitted,  and  at  which 
meeting  a  Board  of  Trustees  were  duly  elected  in  accordance  with  the  terms  of  said 
agreement,  do  hereby  certify  that  the  foregoing  agreement,  or  terms  of  union  were 
by  a  unanimous  vote  at  said  meeting  duly  approved,  ratified  and  confirmed. 

IN  WITNESS  WHEREOF,  I  have  hereunto  set  my  hand  this  first  day  of  Novem- 
ber, A.  D.  1900. 

H.  A.  Hunter,  Clerk. 


§  3784. 
FORM  FOR  ENDOWMENT  FUND  CORPORATIONS. 
BOARD  OF  TRUSTEES. 
Board  of  Trustees  for  Stryker  Society,  Church  of  the  United  Brethren  in  Christ. 
(Filed  January  26th,  1900.     Vol.  78,  Page  328.) 
It  is  hereby  certified,  by  the  undersigned,  that  at  a  regular  session  of  the  Quar- 
terly Conference  of  Stryker  Circuit  of  the  North  Ohio  Annual  Conference,  Church  of 


Forms.  695 

Chattel  Loan  Companies  —  Articles  of. 

the  United  Brethren  in  Christ  (old  constitution),  held  at  the  village  of  Stiyker,  in 
Williams  County,  State  of  Ohio,  on  the  23rd  day  of  December,  A.  D.  1899,  the  follow- 
ing named  persons  to  wit:  Jasiah  Swank,  David  Swank,  Eli  Turrittin,  William  Buck 
and  Albert  Kennedy,  all  of  said  county,  were  duly  elected  a  Board  ol  Tru 
Stryker  Society  of  said  Stryker  Circuit  and  who  are  to  serve  as  such  until  theix  suc- 
cessors shall  be  elected  and  who  with  their  said  successors  in  office  shall  < ■■■.  I :-t  and 
become  and  be  an  incorporated  Board  of  Trustees  and  a  corporation  qo1  toi  profit  for 
the  purpose  of  acquiring  in  trust  and  of  so  controlling  and  disposing  ol  real 

and  personal  property  as  from  time  to  time  the  said  Society  may  deem  it  desirable  to 
have  acquired,  controlled  and  disposed  of  for  church  and  benevolent  purposes.     The 
said  Board  of  Trustees,  however,  shall  hold  all  such  property  in  trust  for  said  Ekx 
and  Church  at  all  times  and  acquire  control  and  dispose  of  the  same  under  the  super- 
vision and  control  of  said  Church  and  subject  to  its  directions  and  order. 

That  the  uses  tc  which  the  said  property  so  to  be  acquired  and  holden  shall  be 
applied  are  all  such  uses  as  it  may  be  and  is  lawful  for  the  said  Church  and  Society 
to  apply  the  same  as  a  religious  organization  and  body  under  the  laws  of  Ohio. 

IN  WITNESS  WHEREOF,  We  have,  hereunto  set  our  hands  this  24th  day  of 
January,  A.  D.  1900. 

W.  H.  Clay,  Presiding  Elder  of,  and  officer  presiding  over,  the  said  Quarterly 
Conference. 

William  Buck,  Secretary  of  the  said  Quarterly  Conference. 

The  State  of  Ohio,  )  sg  . 
Williams  County.   \ 

On  this  24th  day  of  January,  A.  D.  1900,  personally  appeared  before  me,  a  notary 
public  in  and  for  said  County  and  State,  W.  H.  Clay  and  William  Buck,  who  acknowl- 
edged that  they  did  make  and  sign  the  foregoing  statement  as  and  for  the  uses  and 
purposes  therein  set  forth,  and  that  they  are  still  satisfied  therewith. 

John  J.  Heater, 
(Seal.)  Notary  Public  in  and  for  Williams  County,  Ohio. 


§  3797. 

ARTICLES  FOR  SAVINGS  AND  LOAN  ASSOCIATIONS. 

BANKING  COMPANY. 

The  Elyria  Savings  and  Banking  Company. 

(Filed  February  6th,  1901.     Vol.  83,  Page  653.) 

THIRD.  Said  corporation  is  formed  for  the  purpose  of  receiving  deposits  of 
money,  securities  and  ether  valuables,  loaning  money,  discounting  notes  and  bills, 
dealing  in  negotiable  instruments,  and  other  choses  in  action,  and  conducting  all 
business  authorized  by  law  to  be  conducted  by  Savings  and  Loan  Associations  for 
profit  and  doing  a  banking  business,  with  all  transactions  incident  thereto,  so  far  as 
the  same  may  be  lawfully  done  under  the  laws  governing  Savings  and  Loan  Associa- 
tions in  said  State  as  defined  in  Chapter  Sixteen,  Title  11,  Part  II,  Revised  Statutes 
of  Ohio. 

Xote  —Articles  musl   be  submitted  to  the  attorney-general   for  his  approval.     E 
in  villages  having  a  population  of  twenty-five  hundred,  the  capital  stock  musl   b     $50,000,  in 
such  villages  it  must  be  $25,000,  all  of  which  musl    be  subscribed  and  fifty  per  cent,  paid  in, 
before  business  is  commenced.     The  shares  shall  be  $100  each. 

Under  a  ruling  of  the  attorney-general  hanks  cannoi   be  incorporated  under  the  g 
laws. 

§  3806-b. 

ARTICLES  FOR  CHATTEL  LOAN  COMPANY. 

CHATTEL  LOAN  COMPANY. 
The  Provident  Loan  Company. 
(Filed  April  14th,  1900.     Vol.  81.  Page  498.) 
THIRD      Said  corporation  is  formed  for  the  purpose  of  transacting  the  business 
of  a  savings  and  loan  association,  and  loaning  money  upon  chattel  security  as  pro- 
vided in  Chapter  Sixteen,  Title  two  of  the  Revised  Statutes  of  Ohio. 


696  Forms. 

Free   Banking    Companies  —  Articles    of. 


§  3881-a. 

ARTICLES  FOR  SAFE  DEPOSIT  AND  TRUST  COMPANY. 

The  People's  Trust  Company. 

(Filed  December  22nd,  1900.  Vol.  82,  Page  226.) 
THIRD.  Said  corporation  is  formed  for  the  purpose  of  receiving  on  deposit,  or  in 
trust,  money,  security,  and  other  valuable  property,  on  such  terms  as  may  be  agreed, 
to  invest  and  loan  the  funds  of  the  company,  and  those  received  on  deposit,  or  in 
trust,  and  for  the  purpose  of  providing  by  lease  or  purchase,  a  proper  and  secure  fire 
proof  building,  or  buildings,  and  fire  and  burglar  proof  vaults  or  safe;  receiving  on 
deposit,  for  safe  keeping  therein,  securities,  stocks,  bonds,  coins,  jewelry,  valuable 
books,  papers  and  documents,  and  other  property  of  every  kind;  collecting  and  dis- 
bursing interest  or  income  upon  property  received  on  deposit  producing  interest  or 
income;  acting  as  agent  cr  trustee,  for  the  purpose  of  registering,  countersigning,  or 
transferring  certificates  of  stock,  association,  state,  municipality,  city  or  public  author- 
ity, upon  such  terms  as  may  be  agreed  upon;  holding  and  receiving  money  ordered 
to  be  deposited  with  it  by  any  court  in  this  state;  receiving  and  holding  moneys  or 
property  in  trust  on  deposit  from  executors;  administrators,  assignees,  guardians, 
trustees,  corporations  or  individuals,  upon  such  terms  and  conditions  as  may  be 
obtained  or  agreed  upon  between  the  parties;  acting  as  trustee  under  any  will  or 
instrument  creating  a  trust  for  the  management  of  property;  acting  as  executor  or 
administrator,  taking,  accepting  and  executing  all  trusts  that  may  be  committed  to  it 
by  grant,  assignment,  devise  or  bequest;  acting  as  guardian,  assignee,  receiver  or 
trustee,  or  in  any  trust  capacity;  acting  as  agent  for  real  estate;  and  generally  for 
the  purpose  of  transacting  all  such  business  and  doing  all  such  things  as  safe  deposit 
and  trust  companies  are  or  may  be  authorized  or  empowered  to  do  under  and  by 
virtue  of  the  laws  of  Ohio. 


§  3821-65. 
ARTICLES  FOR  FREE  BANKING  COMPANY. 

The  Bank  of  Wellston. 
(Filed  June  1st,  1900.     Vol.  82,  Page  98.) 

1.  The  name  assumed  by  the  subscribers,  who  are  associated  for  the  purpose  of 
engaging  in  the  banking  business  in  conformity  to  the  laws  of  Ohio,  for  such  pur- 
pose made  and  provided,  shall  be  "  The  Bank  of  Wellston,"  and  by  such  name  it  shall 
be  known  in  all  its  dealings.  The  city  of  Wellston,  Jackson  County,  Ohio,  is  to  be 
the  place  in  which  said  bank's  operations  shall  be  carried  on,  and  at  said  city  an 
office  is  to  be  kept  for  the  transaction  of  business,  and  the  redemption  of  said  bank's 
circulating  notes.  „    ,    ,,  ,  ^ 

2.  The  amount  of  capital  stock  of  "  The  Bank  of  Wellston  "  shall  be  twenty-five 
thousand  dollars,  divided  into  five  hundred  shares  of  fifty  dollars  per  share. 

3.  The  name,  place  of  residence  and  the  number  of  shares  of  each  member  of  said 
association  are  as  follows,  to  wit: 

Name.  Place  of  Residence.  No.  of  Shares. 

N   Walter  Davis Wellston,  Ohio Eighty  (80). 

Lafayette  Arthur Wellston,  Ohio Eighty  (80) 

George  B   Woodrow Wellston,  Ohio One    hundred    and   twenty. 

Jacob  Snider Wellston,  Ohio One  hundred  and  forty. 

Jeremiah  W.  Hogan Wellston,  Ohio Eighty. 

4  Said  Company  was  formed  March  3rd,  A.  D.  1900,  at  the  city  of  Wellston, 
Q,io  '  Subscribers. 

Attest  N-  Walter  Davis. 

Thomas  A.  McFarland.  £.  Arthur. 

T.  S.  Hogan.  ?eorg e  B.  Woodrow. 

Jacob  Snider. 
Jeremiah  W.  Hojan. 
The  State  of  Ohio,  County  of  Jackson,  ss.: 

BE  IT  REMEMBERED,  That  on  the  3rd  day  of  March,  A.  D.  1900,  before  me,  the 
subscriber  a  notary  public  within  and  for  said  county,  personally  appeared  W.  Walter 
Davis  Lafayette  Arthur,  George  B.  Woodrow,  Jacob  Snider  and  Jeremiah  W.  Hogan, 
persons  well  known  to  me,  and  acknowledged  the  signing  of  the  foregoing  instrument 
to  be  their  voluntary  act  for  the  uses  and  purposes  therein  mentioned. 


Fob  697 

Board  of  Trade  —  Articles  of. 

In  testimony  whereof  I  have  hereunto  subscribed  my  name  and  affixed  my  no1 
seal  on  the  day  and  year  last  aforesaid. 

Thomas  A.  McFarland, 
(Seal.)  Notary   Public, 

Jackson  County,  Ohio. 

I  certify  that  the  foregoing  instrument  is  a  true  and  correct  copy  of  the  origin*] 
certificate  for  forming  a   Banking  Company  filed   at  my  office  on   March   5th,   A     D. 
1900,  at  1  P.  M.,  and  recorded  on  5th  day  of  March,  1900.  in  Book  No.   1.  1' 
the  records  for  recording  certificates  of  Associations  for  Free  Bank) 

William  Thomas, 
(Seal.)  County  Recoi 

Jackson  County,  Ohio. 
CERTIFICATE. 

The  Bank  of  Wellston. 
(Filed  June  1,  1900.     Vol.  82,  Page  100.) 
To  the  Honorable,  The  Governor,  The  Secretary  of  State  and  the  Auditor  of  State  of 
the  State  of  Ohio: 
This  is  to  certify  that  Sixty  per  cent,  of  the  Authorized  capital  stock  of  The  Bank 
of  Wellston,  Ohio,  has  been  paid  in,  and  is  the  bona  fide  property  of  said  bank.     The 
capital  stock  is  $25,000,  and  fifteen  thousand  dollars  have  been  paid  in. 
Witness  our  hands  at  Wellston,  Ohio,  this  21st  day  of  May.  1900. 

Jacob   Snider,   President. 
J.  W.   Hogan,  Secretary. 

CERTIFICATE   OF  AUTHORITY   TO   BEGIN   BUSINESS. 
The  Bank  of  Wellston. 
(Duplicate  Filed  June  1st,  1900.     Vol.  82,  Page  100.) 
State  of  Ohio,  )        . 

Office  of  the  Governor.  ) 

It  having  appeared  tc  the  satisfaction  of  the  undersigned  that  THE  BANK  OF 
WELLSTON,  of  Wellston,  Jackson  County,  Ohio,  has  complied  with  all  the  require- 
ments of  the  Statutes  with  reference  to  the  formation  of  Banking  Companies,  under 
the  Free  Banking  Act  of  1851,  We,  therefore,  by  virtue  of  the  power  vested  in  us  by  the 
Laws  of  Ohio,  do  hereby  authorize  it  to  do  the  business  as  proposed  in  its  said  Articles 
of  Incorporation,  filed  in  the  office  of  the  Secretary  of  State  on  the  1st  day  of  June. 
A.  D.  1900,  and  recorded  in  Volume  82,  Page  98.  of  the  Records  of  Incorporations. 

IN  WITNESS  WHEREOF.  We  have  hereunto  set  our  hands 
a.nd   caused   to   be  affixed   the   Great   Seal   of   the   State   of 
(Great  Seal.)  Ohio,  at  Columbus,  this  1st  day  of  June,  A.  D.   1900. 

Geo.  K.  Nash, 
Governor  of  the  State  of  Ohio. 

Charles   Kinney. 
Secretary  of  State  of  the  State  of  Ohio. 

W.  D.  Guilbert. 
Auditor  of  State   of  the  State  of  Ohio. 


§  3827. 
ARTICLES  FOR  BOARD  OF  TRADE. 
The  Newsomerstown  Board  of  Trade. 
(Filed  April  2nd,   1900.     Vol.  76,  Page  417.) 
THIRD.     The  purpose  for  which  said  corporation  is  formed  is  to  collect,  preserve, 
and  circulate  valuable  and  useful  information  relating  to   its  manufacturing  inter- 
ests; to  encourage  wise  and  useful  legislation;  to  oppose  the  enactment  of  laws  likely 
to  be  prejudicial  to  its  manufacturing  and  commercial  interest;  to  study  the  work 
of   our  system   of  transportation   upon  which   our   commercial   prosperity   so   largely 
depends;  to  study  by  all  proper  methods  the  defects  and  abuse  existing  therein;  to 
secure  fair  and  equitable  rates  of  freight  to  and  from  the  villages,  and  the  discon- 
tinuance of   vexatious   and   unjust   overcharges   of   the   same,    and   to   secure  prompt 
settlement  of  damages  on  goods  shipped  to  said  villages;  to  facilitate  the  adjustment 
of  differences,  controversies  and  misunderstandings  between  its  members  and  others; 
to  strive  in  all  ways  to  promote  the  manufacturing,  commercial,  and  other  interests 
of  the  village. 


698  Forms. 

Building  and  Loan  Associations  —  Articles  of. 


§  3836-1. 
ARTICLES  FOR  BUILDING  AND  LOAN  ASSOCIATIONS. 
BUILDING  AND  LOAN  COMPANY. 
The  Park  Building  and  Loan  Company. 
(Filed  January  3rd,  1901.     Vol.  83,  Page  528.) 
THIRD.     Said  corporation  is  formed  for  the  purpose  of  raising  money  to  loan 
among  its  members,  and  to  receive  money  on  deposit  from  time  to  time  to  the  extent 
necessary  to  meet  the  demands  made  on  it  by  its  members  and  depositors;  to  issue 
stock  on  such  terms  and  conditions  as  the  constitution  and  by-laws  may  provide;  to 
assess  and  collect  from  members  and  depositors  such  dues,  fines,  interest  and  premium 
on  loans  made  or  other  assessments  as  may  be  provided  for  in  the  constitution  and 
by-laws;  to  issue  stock  to  minors;  to  acquire,  hold,  encumber  and  convey  such  real 
estate  and  personal  property  as  may  be  necessary  for  the  transaction  of  the  Company's 
business    or  necessary  to  enforce  or  protect  its  securities;  to  borrow  money,  and  to 
issue  its'evidence  of  indebtedness  therefor;  to  make  loans  to  members  and  depositors 
on  such  terms,  conditicns  and  securities  as  may  be  provided  in  the  constitution  and 
by-laws;  to  cancel  such  loans  and  release  the  securities  on  such  terms  as  the  Board 
of  Directors  may  provide;  to  accumulate  from  the  earnings  and  invest  as  the  Board  of 
Directors  may  determine,   a  reserve  fund  for   the  payment  of  contingent   losses;   to 
make    such   annual    or   semi-annual    distributions    of   the   earnings,    after    deducting 
expenses  and,  setting  aside  a  sum  for  the  reserve  fund,  as  the  constitution  and  by-laws 
may  prescribe;  to  provide  a  constitution  adopted  by  its  members,  and  by-laws  adopted 
by  its  Board  of  Directors,  for  the  proper  exercise  of  its  corporate  powers  and  the  con- 
duct and  management  of  its  affairs,  and  to  do  all  such  things  as  are  necessary  and 
proper  to  enable  the  corporation  to  carry  out  the  purpose  of  its  organization. 

The  Metropolitan  Building  and  Loan  Company. 
(Filed  March  7th,  1901.     Vol.  87,  Page  73.) 

THIRD.  Said  corporation  is  formed  for  the  purpose  of  raising  money  to  be  loaned 
amon<r  its  members  and  depositors  for  use  in  buying  lots,  building  and  repairing 
houses,  and  for  other  purpose  under  the  statutes  of  Ohio  governing  building  and  loan 
companies. 

§  3836-3. 

CERTIFICATE  OF  INCREASE  OF  CAPITAL   STOCK  OF  BUILDING   AND  LOAN 

ASSOCIATION. 


The 


To  the  Secretary  of  State,  Columbus,  Ohio: 

Tlie  hereby  certifies  that,  at  a  meeting  of  its 

directors,'  held  'on  the day  of ,  A.  D.  189 .  . ,  it  was  resolved 

by  a  majority  vote  of  its  board  of  directors  that  the  capital  stock  of  said  association 

be  increased  from Dollars,  ($ )  to    

Dollars,  ($ . ),  divided  in shares  of  $ 

IN  WITNESS  WHEREOF,  Said  corporation  has  caused  its 
corporate  seal  to  be  hereto  affixed,  and  this  certificate  to 

be  executed  by  its  President  and  Secretary,  this 

day  of ,  A.  D.  189.  . 

The , 

By 

President. 

Secretary. 


INDEX. 


(References   are    CO   p  i 

ABANDONMENT. 

Cemetery  grounds,     i  Sec  Cemetfjm  Association.) 
Corporate  objects,  etc.     (See  Corporate  Objects.) 
Charter,  certificate  as  to,  filing,  etc.,  20 
Defense  of,  in  action  on  stock  subscription,   L39 
Directors,  by  presumed,   when.    II!).    12.-> 

Of  appropriation  proceedings.     (See  Appropriation  of  Pbopebtt.) 
Of  streets,  etc..  to  railroads,   189,   L94 
ABSENCE  OE  DISABILITY. 

Deputy  of  superintendent  of  insurance  to  act  in  case  of,  31 
ABUTTING"  PROPERTY  OWNERS. 

Consents  of,  to  use  of  streets,   etc.      (See  also   tinder   respective  compan 
in  ease  of  automatic  package  carrier  companies,  324 
electric  lightj  etc.,  companies,  ."524 
freight  ways  or  private  railroads,  240 
street   railway  companies,    17.  -is.  51,  52 
Damage  to,  for  appropriation  of  way   in  street,    1st.   605. 
May  make,  etc.,  survey  and  plat  of  right  of  way  of  railroad,  when.  215 
Rights  of,  as  to  use  and  occupancy  of  streets,  etc.      (See  under   r< 
ACADEMY.     (See  Schools,  Colleges,  etc.)- 

Of   fine  arts.      (See  Arts.) 
ACCEPTANCE. 

Of  bids  for  street  tail  way  grant,  49 

Of  Revised  Statute-  by  corporations  created  prior  to  L851,  91 
certified  copy  of,  tiled  with  secretary  of  state,  91 

fees  for  filing.  9 
effect  of.  on  old  charter.  91 
necessity  of  formal.  91 
partial  or  conditional.   91 
what  constitutes,  91,  92,  93,  125 
ACCESS. 

Damages  for  injuries  to,  in  appropriation  of  property  by  railroad.  184 
Obstruction    to,    what   amounts    to.    192 
ACCIDENTS.      (See  Injuries.) 
ACCIDENT    INSURANCE.     (See    Insurance   Company  —  Accident :     Ensuranci 

Life:      Insurance    Co.'s  — Otheb    im.w    Life:      Insurance 
Co.'s  —  Title  Guaranty,  i 
ACCOMMODATION  PAPER.     (See  Negotiable  Instruments.) 
ACCOMMODATION    TRAINS.      (See  Railroad  Trains.) 
ACCOUNTS.  ETC. 

Necessary  for  making  reports. — 

must  be  kept   by   railroad   companies,   29 

by  telegraph  companies,  -'■'■ 
notice  of  changes   in.  29 
ACCOUNTING. 

Court  may  order,  in  actions  to  enforce  liability  of  director-,  officers,   etc..    158 
Rights  of' stockholders  to.  133 

motive   for   action   to  enforce,    133 
parties  to  bill  for,  133 
ACCOUNTING  OFFICER.      (See  Officers.) 
ACKNOWLEDGMENTS.      (See  also  under  respective  companies.) 

Of  agreement  and  proceedings  to  consolidate  hydraulic  companies,  335 
articles  of  incorporation,  96,   97 
absence  of.  effect.  97 
by  whom.  96.  97 
form  for,  645 

699 


700  INDEX. 

(References   are   to   pages.) 
ACKNOWLEDGMENTS  —  Continued, 
.-.hould  be  in  this  state.,  07 
who  may  take,  96,  97 

official  character  must  be  certified,  100 
certificate  of  action  of  stockholders  as  to   branch   railroads,    182 
certificate  of  change  of  counties  where  line  is  located. — 
in  case  of  railroad  companies,  181 
shi]}  canal  companies,   309,   181 
certificate  of   location   of  terminus   in  county  on  state  line, — 
in  case  of  railroad  companies,   178 
ship  canal  companies,  309,  178 
deed  of  corporation,  form   for,  662,   663 
lease  of  railroad  necessary,  when,  204 
ACTIONS. 

Against  corporations,  agents,  etc.      (See  under  various  companies.) 

directors.      (See  Directors  —  liability  of.) 
Against, — ■ 

stockholder.      (See  Stockholders.) 
Drought  where, — ■ 

in  ease  of  companies  under  special  charters,  580 
foreign  corporations,  580,  581 
non-residents,  580 
Ohio  corporations,  579 
Causes  of,  separately  stating  and  numbering.  134 
Commencement  of, — • 

attempt  equivalent  to  when,  578 
effect  of  reversal  or  failure  not  on  merits,   57S 
Corporations  in  hands  of  receiver  cannot  sue,  5:12 
Defenses  in. — 

inequality  of  term  of  office  of  directors  is  not  when,   134 
settlement  is  not  when,  134 
to  collect  subscription.      (See  Capital  Stock.) 

to  enforce   stockholders'   liability.      (See  Stockholders'   Liability.) 
ultra   vires.      (See  Ultra  Vires.) 
Deposit  of  subject  of,  in  court  when,  591 

enforcement  of  order  as  to,  591 
Evidence  in.      (See  Evidence.) 
Removal  of.      (See  Removal  of  Causes.) 
ACTUARIES    EXPERIENCE   TABLES.      (See   Insurance   Co's  — Life.) 
ADDITIONAL  BURDENS.      (See  Streets,  Highways,  etc.;  see  also  under  respective  Co.'s.) 
ADDRESS.      (See  Residence.) 

Of  auditor,  general   manager,  managing  agent,    president,  secretary,   superintendent,  and 
treasurer. — 
annual  report  to  State  auditor  must  give. — 

in  case  of  —  electric  light,  gas.  messenger  or  signal,  natural  gas,  pipe  line,  rail- 
road, street,  suburban  or  interurban  railroad,  union  depot,  and 
water  companies,  77 
equipment   ( R.  R.)    and  freight  line  companies.  71 
express,  telegraph  and  telephone  companies.  68.  77 
sleeping  car  companies.  74 
Of  directors  and  officers. — 

statement  of  railroad  and  telegraph  companies  to  com'r  of  railroads  to  give,   29 
reports  to  secretary  of  state  to  give, — 
in  case  of  corporations  for  profit.  17 
corporations  not  for  profit,  19 
foreign  corporations,   18  . 

Of  stockholders, — 

reports  of  railroad  and  telegraph  companies  to  com'r  of  railroads  must  give,  26 
reports  of  sleeping  car  companies  to  state  auditor,  must  give,  74 
ADJOURNMENT. 

Of  state  board  of  appraisers  and  assessors.  69 
ADMINISTRATOR.      (See  Executors   and  Administrators.) 
ADMISSIONS. 

Officers  cannot  bind  company  by,  when.  131 
Stockholders  cannot  bind  company  by,  131 
ADULTERATION  OF  FOODS,  DRUGS,  ETC. 
Costs  in  actions,  as  to, — 

certifying  to  county  auditor.  466 

county  auditor  to  issue  warrant  for,  when,  466 


INDEX,  701 

(Refei 

ADULTERATION  OF  FOODS,    ETC.      tinued. 

not  required  in  advance,  when,   166 
Jurisdiction  of  justice,  mayor,  police  judge,  in,    166 
Jury  trial  before  justice  of  peace,  166 
challenge  of  jurors,  466 

venire  for,  466 

waiver  of,  need  no1  be  in  writing,   i  < ;  7 
Section  7147  does  no1  apply  to,   167 
AFFIDAVIT.     (See  Oath.) 
For  attachment, — 

before  justice  of  the  peace,  624 

in  action  to  enforce  certain  judgments  againsl  railroad     ■ 
stockholder's  liability,  sufficiency.   102 
For  mechanic's  lien.     (See  Me<  hank  'h  Liens.) 
To  pleadings.  58.") 

by  agent  or  attorney,  when,  585 
in  case  of  —  corporations,    585 

petition    for  dissolution   of  corporation,  594 
state,  state  officers,  etc..   585 
AGEXT,  AGENTS.      (See  under  respective  companies.) 
Arts  of,  bind  company  when.  131 
Authority  of.  implied  from  acquiescence,  131 
Directors  or  trustees  acting  as   compensation  of,  126 
Examinations  of.  under  oath. — 

by  — board  of  appraisers  of  railroad-,   t,., 

commissioner   of   railroads   and    telegraphs,    '_'!i 
county  auditor,  as  to  statement  of  hanks  for  taxation.  65 
examiners  appointed  by  superintended   of  insurance,  '•'<- 
state  hoard  of  appraisers  and  assessors, — 

in  case  of  —  electric  light,  ^i>.  messenger  or  signal,  natural  gas,  pipe  line, 
railroad,    street,    suburban    or    interurban    railroad,    telegraph, 
telephone,  union  depot,  and  watei   companii 
equipment  (R.  R.)  and  freight  line  companies,  7:: 
express,  telegraph  and  telephone  companies,  70,  7'.i 
sleeping  ear  companies,  75 
superintendent  of  insurance,  32 

in  case  of   foreign  companies,   .">7 
Laws  applicable  to,  of  insurance  companies  organized  under  I      S.  1      -.37 
Liability  on   notes  of  company  improperly  executed,    1:11 
Managing  agent. — 

examination    of    under   oath,      i  Sec    "Examination    of,"    abo< 

garnishee  process  mi.  in  attachment  before  justice  of  peace,  625 

liability  of.  of  railroad  for  failure  to  make  and   publish  rules  a-  to  crossings         l 

railroads,   2  56 
name    and    address    of.      (See     \m>kfss.) 
of    foreign    corporations.      (See    below.) 
Managing  agent, — 

summons  served  upon,  when.  582 

in  actions  before  justice   of   peace,   623,   0:24 
in  case  of  indictmenl    of  corporation,  639 
Notice  to.  of  railroad  a-  to  ordinance  requiring  lighting  of  bridge  or  railroad,  45 
Of    foreign    corporation,      i  See    also    under    various    companies 
for  service  of  process,    12 

duties,   requirements,   powers,    etc..    12_.    13 
his    successor,    13 

must  be   by    actual    appointment    or   representation,    16 
revocation   of   appointment     13 
secretary  of  state  may  act    as.  when.   13 
fees   for  so  doing.    13 
managing   agent, —  meaning  of  term,   16,   583 
service   of  process  on.   583 

in   actions   before   justice  of  peace,   624 
provisions  as  to.  cumulative,  583 
return-   must    show   what.   10 
penalties   against,    for   doing   business   before    complying   with    ?    I48d,    13 
name  and  address  of,  reporl    to  secretary  of  state,  must   give.   1" 
service  of  process  on  in  1".  S.  courts,  1(1 
Of   insurance    companies.      (See   Instjuance    Comtmntes.I 

Pays    taxes    for    company,    when.      'Sec    under    Express,    Insurance.    Telegraph    and    Tele- 
phone Companies. 
Plendings    verified   by,    when.    585 


70:>  INDEX. 

(References  are  to  pages.) 
AGENT,  AGENTS  —  Continued. 

Powers  of,  of  corporations,   131 
to  sign   notes,   131 

street   improvement  petition,   131 
Receiver  of  corporation  is  not   an,    131 
Special,    notice    to,    notice   to    company.    131 
AGREEMENTS. 

Between   companies   as   to    business   and   operation.      (See   various   companies.) 
Copies  of,   railroads   must   furnish   to  commissioner  of   railroads,   2j 
For  pledge  of  stock,  effect  of,  149 

settlement   of   corporate   liabilities   by   stockholders,   effect   of,    154 
transfer  of  stock,   imports  valuable  consideration.    148 
Made  before  incorporation,  void  when,   104 
Trust   and  voting   agreement.      (See   Trust   Agreement.) 
AGRICULTURE. 

Schools,  colleges,  etc.,  may  hold  land  for  teaching,  4/2 

limitations    as   to,   472 
State  Board  of.      (See  Ohio  State  Board  of  Agriculture.) 
AGRICULTURAL  FAIR  COMPANY.      (See  Fairs:     Fair  Companies:     Fair  Grounds.) 
AGRICULTURAL   FUND.      (See  State  Agricultural   Fund.) 
AGRICULTURAL   SOCIETIES  —  COUNTY. 
Aid  to,   from   county   funds, — 
for  expenses,  etc.,  450 

amount  of,   limitation   as   to,   450 

certificate   as   to   tiling   report*   necessary  before,    450 
entitled  to,  when,  44U 

to  additional   society   in  counties  containing  city  of   1st  class,   2d  grade,  450 
for   fair   grounds,   etc.,   451 

amount  of,   limitations  as  to,  451,   452,  453 

in  counties  containing  city  of  1st  class,  2d  grade,  452 
county   commissioners  may   levy   tax   for.   451,  452,  453 

in  counties  containing  city  of   1st  class,   2d  grade,  452 
must    be   submitted   to   voters,   when,    453 
notice  of,  453 
money  raised  by  taxation  for,  to  be  so  used  though  act  has  expired,  452 
to  liquidate  debts, — 

bonds    issued    for,    when,    451 
interest    on,    452 
questions   of  issuing,   submitted  to   vote,   451 

ballots    for:     preparation;     duty    of    deputy    state    supervisor    of    elec- 
tions, 451 
election  for,   when   and  how,  451 
notice   of,   must   state   what,   452 
petition    for,   number   of    signers,   451 
requirements    as    to,    451 
vote  necessary  for,  452 
tax  levy  to  pay,  452 
term  of,   452 
money   to   be    used   for    purposes   stated,   452 
Are  bodies  corporate,  451 

Buildings  on  fair  grounds,  county  commissioners  may  keep   insured  when,   454 
Delegates  of,   are  ex  officio  members  of  state  board  of  agriculture,  448 
Dissolution,  etc.,  of. — 

funds   remaining  upon,  to  be  turned   over   to   park   commissioners   in    counties   con- 
taining   city    2d    class    1st    grade,    454 
real  estate  of,  vests  in  county  when,  453 

in   counties   containing   city    2d   class    1st   grade,   454 
Fairs   of.      (See    Fairs.) 

must    be    held    when.    450 
premiums     at  —  regulation    as     to,    450 
Liability   of,   for   negligence   in   constructing   seats,    450 
Members,    number    required,    449 
Powers  of,  450 
President    of, — 

executes    conveyance    of   real    estate    when,    450 
ex  officio  member  of  state  board  of  agriculture,  448 
Real    estate    for    fair    grounds    of. — 

appropriation    of   property    for.    463 
directors    act    in    the.    463 
plat  and  description  filed,  463 


INDEX.  7U3 

(References   are    I 

AGRICULTURAL  SOCIETIES  — C()l  \  l  \       Continued. 

proceedings   for,  Bame   ae   in  case  of  municipality,    163 
when   county   commissioners   are    required    to    purcb 
paj  menl    in    case    of,    4ti.'i 
control   and    managemenl    of,    when   owned    by   county,    159 

conveyance  in.    words   of    inheritance   ao1    ar;      *  - » I 

donations  of,  for  engine  or  boee  bouse  in  certain  i 
incumbrance   of,    consenl    of    county    commissionera    m 
may    purchase   and    bold    what,    i->l 
purchase    of    new    site    for, — 

county   commissioners   i<>   complete,   etc.,    i~>s.    159 
money   from  sale  of  old  Bite  used   for,  wl 

certificate  of  president   and   secretary  as  to  purpose  to   be  u-> 
sale  of,  to  purchase  other  site  authorized,  458 

consent  of  county  commissioners   necessary   when,    158 
conveyances    of,    executed    by    whom,     159 

county  commissioners  join  in,   when,  459 
money  arising  from,  paid  to  county  treasurer,   158 
vests  in  county  upon  dissolution,  etc.,   when,   453 

to   be   used   for    park    purposes,    in    counties   containing   city    of    2d    clfl 
grade,    454 
Reports    to    state    board    of    agriculture,     151 

certificate    as    to    filing,    necessary     when,    451 
made  when.  450,   451 

must   be    in    accord    with    rules   of   state   board    of   agriculture,    4.31 
must    show    what,    450 
Treasurer   of, — 

bond  —  approved    and    filed    with    county    auditor,    453 

required  when;  amount  of.  453 
publication   of   account   of,   450 
AGRICULTURAL    SOCIETIES  —  DISTRICT. 
Aid  to  from  county  funds, — 

amount   of;    limitations    as   to,    450 
certificate   as   to   filing   report   necessary   before.   450 
entitled   to   when,   450 
Delegates  to  state  board  of  agriculture  are  ex  officio  members,   448. 
Fairs  of.      (See   Fairs.) 

must   be   held    when,   450. 
premiums   at,    regulations  as   to.   450 
Liability   of,   for  negligence   in   construction   of  seats.   4">0 
Members,   number    required,   449 

President  of.   ex  officio  member  of  state  board  of  agriculture,  448 
Reports  of,  to  the  state  board   of  agriculture,  4-~>  1 
certificate   as  to    filing  of,    necessary,   451 
made  when,  450,  451 

must  be  in  accord  with  rules  of  state  board  of  agriculture.  451 
must  show   what,  450 
Treasurer,   publication   of  account   of,    150 
AGRICULTURAL   SOCIETIES  —  T<  >\\  NS11IP. 
Articles  of  incorporation  of. — 
acknowledgment  of,   460 

before    justice   of   peace.    460 
filed    with    secretary    of    state.    460 
must  show  what.  460 
Fairs  of.      (See   Fairs.) 

constables   to    keep    peace    at.    460 
grounds    for,    purchase   or    renting   of.    460 
rules  and  regulations   for.   society  may   make.  460 
Incorporators     of.      (See     INCORPORATORS.  ] 

must    execute    articles    of   incorporation.    460 
number   of,  460 
Name,   articles  must  give.   460 
Object,    articles   must   give,    460 
Powers  of.  460 
Real  estate  purchase,  renting,  etc..  of.  for  fair  grounds.  460 

limitations   upon   amount   of.    460 
Rules   and   regulations,    societies    may    make.    I 
Township   where    located,   articles    must    specify.   460 
AIR    BRAKES.      (See    Railroads.) 
ALLEYS.     (See  Streets  and  Alleys.) 


704  INDEX. 

(References  are  to  pages.) 
AMENDMENTS. 

Corporation    laws    are   subject    to,    2 

Of  articles  of  incorporation.     (See  Articles  of  Incorporation:   Capital  Stock:  Dom- 
icile:  Name,  etc.) 
fees   for   filing,   9 
Of  reports.      (See  Reports.) 
AMERICAN    EXPERIENCE    TABLES.      (See    Insurance   Co.'s  — Life.) 
ANATOMY.      (See  Corpse.) 
ANIMALS.      (See   Cruelty  to,   etc.) 

Driving,  riding,  permitting,  etc.,  in   railroad   enclosures;   penalty,  638 

such  animals  not  exempt  from  execution,   638 
Killed  by   railroads.      (See   Railroads.) 
Rate  of  toll  for,  331 

ANNUAL  STATEMENTS.   (See  Reports.) 
APPEAL. 

Eilect  of,  by  vendor  of  stock  in  action  to  enforce  stockholders'  liability,   160 
From  decision  as  to  payments  of  unknown  depositors,  545 

From  decision   of  secretary   of   state,   relative   to    foreign   corporation  doing  business   in 
state,    1 1 
of  superintendent  of  insurance  as  to  condition  of  company,  32 
From  judgment  against   corporation,   stockholder   entitled   to,   when,   150 
Provisions  as   to  time,   notice,   etc.,   do  not  apply   to   civil  actions  by  municipalities  to 
collect  fines,  etc.,  against  railroad  and  telegraph  companies,  30 

APPEARANCE. 

Voluntary,  what  constitutes,  by   foreign   corporation,   16 
APPORTIONMENT. 

Of  value  of   property   for   taxation, — - 

in  case  of  express  companies,  69,   70 
railroad   companies,   67 

telegraph   and   telephone    companies,   67,   69,    70 
APPRAISEMENT. 

In  action  to  sell  land  of  expired  real  estate  corporation,  94 
APPROPRIATION. 

By   corporations  —  compulsory  —  action  by  land  owner.      (See  "Wrongful   taking,"  etc., 
below. ) 
description    of    lands    and    improvements, — 

owner   may  require  company  to  furnish,   61S 

in  case  of  refusal  —  surveys  may  be  made  at  cost  of  company,   618 
use  of  land   may  be  enjoined,   618 
compensation, — 

bond    to   pay    not   sufficient,    621 
injunction   for   not  paying,   621 
measure  of  damages  in.  620 
effect  of  verbal  agreement  for  occupancy,  etc..   618 
estoppel,   application   of,   to  owner,   619 

injunction  against  use  of  land   by  company,  when,  618,  620,  621 
judgment  and  execution  in,  620,  621 
jurisdictional  question,  must  be  first  heard,  618,  619 

what  are,   618,    619 
notice  requiring,   service  of,   etc.,  618 
owner    may   require    when,    618 
how  'ownership  tried,  619 
in  case  of  railroad  companies,    190,   607 
who  is  owner,   184,  619,'  620 
parties    when    company   in  hands  of   receiver,   619 
petition   for,   filed  in  probate   court  when,   61b 

must  show  what,   61S,   619 
provisions,   etc.,    as   to.    cumulative.    620 
school  officers  may  require  railroad  to  make,  618,  615 
statute   of   limitations   as   to,    620 

in    case   of   railroad   companies,    190 
summons    in    action    for,    620 
By  corporations  —  voluntary — -action  by  corporation,   etc., — 

affidavit  of  bona  fides  in  case  of  taking   unfinished  road  bed  of  railroad,  617 
allegations  necessary  for  damages,  etc.,   184 
attorney,   court  may  appoint   for   party  when.   616 

fees   included  in  costs   when,   613 
benefits. —  must  be  irrespective  of  in  case  of   railroads,   183 
under    constitution    of    1802.    183 


INDKX.  7<Jo 

(References   arc    to    p 

APPROPRIATION  —  Continued, 
can  be  made  when,   605 

in  case  of  absence  <>r  incapacity  of  owner,  606 
inability  to  agree  as  to  compensation,  <i<i."> 
chapter  8,  §  0414  et  seq,   governs,  604 

applies    to    ship    canal     COmpa  aies,     •'!  1  1 

docs  not  apply  to,  by  stair,  county,   township,  etc.,   <iJ- 
"  company  "  includes  "persons,"  "partnerships,"  etc.,   017 

compensation    for, — 

agreement  as  to, —  inability   to  make   pre-requisite  to,  605 

guardian,  etc.,  of  minors,  authoritj    of   probate  couii    m  605 

application   for  authority,   filed   where,   605 
must    show    what,    605 
notice    of,    to    ward     605 
order  of  court    for  conveyance   upon,   606 
proof  of  inability  to  agree,   608 
disposition  of, —  in  case  of  conflicting  claims  to  property,  616 

in  case  of  school  lands  appropriated  by  railroad,  615 
deposit    for,    upon    filing    petition,    022 
effect   of.    upon   costs,    022 
notice  of  to  owner,  022 
error  in  assessing,  trespass  will  not  lie  for,  329 
failure   of  railroads   to   make,    injunction    lies,    185 

land   may  be  recovered    upon.    Is:; 
interest  on   amount  of,  allowed    when,  (ill.  615 
must   be    assessed    by   jury,    3 

in  ease  of  ship  canal  company,  311 
must  be   in   money,    3,   010 
must   be    first    made,   3 

in   case  of  railroads^  183 

ship    canal    companies,    311 
union  depot  companies,  313,  183 
must  be  irrespective  of  benefits,  010 
in  -ase   of  railroads,    183 

ship  canal  companies,   311 
union  depot  companies,  313,  183 
must   be   irrespective   of   distinction    between    private   and    public   nuisance,    in 

ease   of  street   railways,    304 
owner    entitled   to,    notwithstanding   error    proceedings,    614 
payment  of.   in  case  of  county  agricultural    societies,   40:i 
rule  of  —  measure  of  damages,   183,  G10 

abutting    owner's    rights    in    streets,    184,    605 
basis  of  valuation,   what  is,   010 
damages    cannot   be   shown   by    rents    received,    012 
from  fire,  smoke,  noise,  etc.,    184,  (ill 
opinions   as   to,   admissibility   of,   612 
elements  of  compensation,   what   are,   010 
in  case   of  changing   canal    to   railroad.    Is."),   ill  ] 
destruction    or    injury    to    access,     184 

to    river,    damaging    shipping    interests,    011 
diverting,   etc.,    highways    by    railroad.    194,    till 
railroad    along    turnpike.     ]s:; 

crossing    another    railroad,    011 
telegraph   poles  along  railroad,  .'ii7 
market    value,    what     i-.     (ill 
speculative  damages,   010 
time   when   value   is  to  be  taken,   011 
when   structure    is   partly    on    laud    taken.   012 

election  of  owner   as   to   structure,   612 
where    benefits    and    injuries    arc    blended.    010 
value,   admissibility   of  opinion   as   to.   612 
conUic-tim?   claims   to   property   taken. — 

adjudication    of    in   common    pleas   court.    616 
jury  trial  in,  010 
nature  of  proceedings,  610 
petition  for,  016 
not  to  be  passed  upon  in  appropriation  proceedings,   016 
constitutionality   of  provisions    regulating,    606 
corporate   existence    must    be    proven,    99,    608 
defenses   to   proceedings   for. — 

abuse  of  law  of  incorporation:    incorporation    for   private  00s 


TOG 


INDEX. 


(References   are   to   pages.) 

APPROPRIATION  —  Continued. 

lack   of   public   necessity,    in    case    of   railroads,    183 
error,   proceedings   in, — 

bill   of    exceptions    in,    609 
conducted    how,    014 
costs   in,   paid   by   whom,    615 

court    arfirming   cannot    render    personal    judgment,    61o 
court  may   retain    for   trial   and   final   judgment   when,   615 
trial    to    be    bad    when.    615 
continuance    of,    615 

oath   and   qualification  of  jury  in.   615,  609,   010 
effect  of,   upon   appropriation.   614 

finding  and  order  of  court  on  preliminary  hearing  reversed  by,  bl4 
petition,    filed   when    and   where,    614  ^   _ 

in  case  of  taking  unfinished  road  bed  of  railroad,   617 
time  for,  in  case  of  telegraph,  etc.,  companies,  317 
to    reverse    judgment    of    reversal,    615 
fees  and  costs   in.      (See  "proceedings  for"  below.) 
of  clerk  of  court  of  common  pleas,  622 
probate  judge,   622 
sheriff.   622 
witnesses.   622 
injunction   against,   614 

against   use  of   land   prior   to,   620 
interest  acquired, — 

diversion  of,  to  other  purposes.  607 
held  only  so  long  as  used  by  public,   607 
is   permanent  in   case   of   railroads,   184,   607 
such  only   as   will   answer   public   wants.    607 
when   an  easement, — 

abandonment    of:    what   constitutes,    etc.,    185 
rights  of  owner  of  fee,  184,   185,  607 
jurisdiction  of   Probate    Court   in,    606 

mode    of    exercising,    606 
jurisdictional     questions    in, — 
burden   of   proof  as  to,   608 
must  be  first  Heard   and  determined.   608 
proof  as  to,  60S 
what   are    the,    608 

m  case  of  cemetery  association,  357 

change    of    location,    etc.,    of    railroad,    1S1 
hydraulic    companies,    354 
when" land   of  railroad  is  to  be  taken,   324,   318 

by  automatic  package  carrier  company.  324.  318 
electric  light   and  power  companies,  324,   318 
telegraph     companies,     318 
telephone  companies,  324,   31 S 
lands  desired,  proof  of,  606 
new  trial, — 

costs  in,   paid   by   whom.   614 

disposition  of  moneys   paid  into  court,  in  case  of,  614 
effect  of,   614 

granted   only  for   cause,   614 

in  same  court  and   under   same  provisions.   614 
motion  for,  filed  when,   612 
petition   for  — 

filing  of. —  in  common  pleas  court,  when,  615 
in  probate  court,   when,   606 
in   what  counties.  606,  607 
when  land  in  more  than  one  county.  607 

in   case    of   automatic  package  carrier   companies.   324,   317 
electric    light    and    power    companies,    324.    317 
telegraph   companies,   317 
telephone  companies,   324,  317 
when  unfinished   roadbed  of  railroad   is  to  be  taken.   617 
description  of  land,  etc..  606 
deposit   of   sum    for    compensation   to   accompany,    when,    622 

effect  of  on  costs,  etc.,  622 
must  show  what,  606 

in  case  of  county   agricultural  society.   463 
when  lands  of  railroad   are  to  be  taken, — 


l\i)i:\.  707 

i  Refi 
APPROPRIATION  — Continued. 

by  automatic  package  carrier  companii       124    -U7 
electric   light   and   power  companies,   324,   .'  i  1 T 

telegraph    compi 3  '  I 

telephone  compa  ni<       324     317 
when  unfinished  road  bed  of  railroad  is  to  be  taken 
purpose  and   necessity,  allegation  as  i",  606 
verifical ton  of,  t i » Mi 
power   to   make, — 

constitution   does   nol    confer,   605 

in  case  of  automatic  package  carrier  companies,  '■'•2\.  -117.  :ils 
avenue  i  ompanies,  3  1 1 
bridge    companies,    345 

over  Ohio   River,   346 
i-riiic  tci\    association,   356,    357 
county  agricultural    societies     163 
electric  light  and    power   companies,   324,  317,    318 
gas  companies    (  none  i .  350 

hydraulic   c panies,    354 

inuiiiciji.il  corpo)  at  ions, — 

for  pipe  Line  for  natural  gas,  oil  or  water.    ">7  1 
for    railroad    purposes,    183 
pipe  line  companies  for  natural   gas,  oil  or  water,  .">71 
plank    road   companies,   '■'>-'■> 
railroad   companies,    181,    183,    185,    188 
after    occupying    the   land,    L85 

in  case  oi  companies  selling,  etc.,  interest   in  road  held  in  <■•  'ti i in< < i: 
in  case  of  foreign  companies,  284 
to  abolish  grade  crossings,   233 
ship  canal   companies,  309,   181,   311 
street   railroad    companies,    302 

i nl ci  urban    roads,    307 
telegraph  companies,  ;;17.  318 

for  change  of  location  oi    poles,  etc.,  323 
telephone    companies,    323,    317.    318 
turnpike   con. panics.   329 
union  depot  companies,  313,   183 
water    works   companies    (none),    350,    ">71 
inseparable    incident    of    sovereignty,    605 
lodged     in    general     assembly,     605 

may   be    exercised    directly    or    indirectly    without    judiciary.    605 
powers  of  courts   in  connection   with,    605 
pleadings  in  action  for, — 

answer   of  railroad   company    when   unfinished   roadbed    is   to   be  taken,   ill  7 
applicability   of   rules    of    code    pleading.    606 
none   required   after   petition,   606 
petition    (see  '''petition"  above.) 

reply,    when   unfinished   roadbed   of  railroad   i-  to   be   taken,   til  7 
possession  of  property, — 

corporation    may    have.    when.    613,    614.    616 
final  order  necessary,   613 

payment  or  deposit    of  amounl   of  verdiel   and  costs  necessary,  613,  614,  616 
owner   entitled   to.  when.   614 
refusal  of  owner   to  accept,   effect    of.  613 
writ  for.   may   issue   when.   613 
proceedings  for, — 

abandonment   of, — 

costs   in   case  of.      (See  "  /Vex  and   cists"   abov 
failure   to    pay    compensation    is,    when.    613 
permitted    when,    on    what    terms,    613 

what   constitutes    when    unfinished    roadbed    of    railroad    i<    taken.   U17 
amendment  of,  defects,  etc.,  in,  609 
bill  of  exceptions   in.   (it'll 
brought  where    (see  "Petition  for"  above.) 
conduct  of  trial   in    (see  "trial"   below.) 

conflicting  claims  to  property  in   (see  "conflicting  <l<iims"  above.) 
costs   and   expenses  of,   622 

apportioned    when    and    how.    D22 
expense   of   view   of   premises    taxed    in.   611.   612 
in   case   of   abandonment    of  proceedings,    til:', 
action  may  be  brought   for,   when,   til'! 


708  INDEX. 

(References  are  to  pages.) 

APPROPRIATION  —  Continued. 

statute  of  limitations  as  to,  613 
attorney's    fees,    expenses,   etc.,   included   when,   613 
directors    individually    liable    for,    when,    613 
judgment   for,   613 
in   case  of  new   trial,   614 
in   error   proceedings,    paid  by  whom,  615 
of  additional  witnesses  on  same  point,  612 
when   unfinished  roadbed   of   railroad   is  to   be  taken,  617 
di&missal  of,  plaintiff  may  make,  when,  607 
error,  proceedings  in    (see  "error"  above.) 
findings  of  fact  and  law  —  sufficiency,  608 
hearing  out  of  its  order,  when  unfinished  roadbed  of  railroad  is  to  be  taken,  617 

by    reviewing    court.    617 
judgment  when  unfinished  roadbed  of  railroad  is  to  be  taken,  617 
jury  in- 
discharge  of,  609 
drawing,    etc..   of,    608,   609 

jurisdictional    facts   to   be    determined    before,    608 
challenges,    peremptory    and    for    cause,    609 
charge  to,    612 

examination    of.    by    court,    609 
fees  and  mileage  of,   622 
filling   panel,   talesmen,  etc.,   609 
impaneling   new,    609 
oath   of,    form   for,    61*0 

in  case  of  street  railways,  304 
venire,   issuance  and  return  of,  608 
what    constitutes    a    constitutional,    3,   609 
motion  for  new  trial,  filed  when,  612,  613,  615 
parties  to,   606 

court  may  appoint  attorney  for,  when,  616 
lessees,   when,  607 
making  new,  609 
mortgagees  must  be,  607 
remainder    men  must  be,   184,   607 

when   unfinished  road  bed  of  railroad  is   to  be  taken,  617 
removal  of,  to  federal  courts,  571 
revivor  of,   in  name  of   heirs,   607 
separate    trials,    who    entitled    to,    609 
service   by   publication,   may   be   made   when,   584,   608 

in   case  of  taking  unfinished  roadbed  of  railroad,   617 
summons  in,  issuance  and  service  of,   607,  608,   609 
alias  writs,  608 

in  case  of  railroad  appropriating  school  lands,  615 
trials   in — -adjournment   or    continuance    of,    609 
conduct  of,  608,  609 

affirmative,   who  holds.   608,   609 
evidence,    rules    as   to   admission    of,    609 
exceptions,   rules  governing  taking  bill   of,   609 
discharge  of  jury,   609 
impaneling   new  jury,  609 
time    and   order    of,    009 

when  suit  brought  in  common  pleas  court,  615 
special  term  for  trial  of.  when,  616 
verdict   in  —  confirmation  of,   612 
must   be  in  money,   613 
signing    and    record    of,    612 
view  of  premises, — 

description  of  property  furnished  for,  611 
evidence   not   to   be   taken    at,   612 
expense  of,   taxed   in   costs,   611 
motion  for,   who  may  make,  611 
representatives   of  parties  at,  611 
writ   for  —  form    and   return   of,   611 
when  unfinished  roadbed  of  railroad  is  to  be  taken,  617 
witnesses    in  —  evidence —  (see    '•compensation"    above.) 
difference   in   value   proven,   how,    612 
fees  and  mileage  of,  622 
number  of.  allowed  on  same  point.   612 
^»sts   of  additional,   taxation  of,   612 


[NDEX. 

(Reference    are    to    [ 
APPROPRIATION  —  Continued, 
property    taken   by, — 

appropriation  for  other  uses    (see  "what   may  b<    taken  '  beli 
sale,  etc,  of  canal  lands  to  railroad  company     185 
of  railroad  lands  to  anothei   company,  801 
purposes  for  which  authorized, — 

abutments  and   aqueducts   of   hydraulic   compani< 
altering  or  abolishing    bighwaj    cro    ing     ovei    raili 
avenues,  of  avenue  companies,    344 
branch   lines   of   railroad    companies,    182 

bridges,  approaches,  etc.,   of  bridge  c panies,   345,   346 

over    Ohio    River,    346 
cemetery  purposes,   by   cemetery   associations,   356,   '•'■■•■ 

exceptions  as  to  in  cei  tain  ci1  i<  -.  357 
change  of  location,  route,  etc., — 

in  case  of   automatic   package   cai  rii  i    ipan 

electric  light  and  power  companies,  323 
plank  road  and  turnpike  companies,  329 
railroad   companies,    181 

what  must  be  determined    before,    181,    1*- 
ship  canal   companies,  309,   1*1 
telegraph    and   telephone   companies,   323 
culverts,    ditches,    drains,    water    pipe-,    etc. 
in    case   of    hydraulic    companies,    35  1 
railroad   companies,   183 
union   depot  companies.   313,    183 
depots  for  railroads,   L83,    185,  605 

in  case  of   union  depot  companies,   313,    183 
diversion,  relocation,  etc..  of   highways,  bridges,   pipe   line-,   stream 
by    railroad   companies,    181,    605 
ship   canal   companies,    309,   310 
embankments,  cuttings,  etc.,  of  railroads,    185 

extension  of  street  railway  operated  bj    steam   railroad   aol    permitted,  •>- 
fair  grounds  for   county   agricultural    societies,    163 
fixtures  of   hydraulic  companies,   3:>4 
hydraulic  canals,   354 
materials,  etc.,  for  construction  — 

in  case  of   plank   road   ami   turnpike  companies,    •  '■-'' 
railroad   companies,    183 
ship  canal   companies,  311 
union  depot  companies,  313,  183 
poles,   piers,   fixtures,  etc. 

in  case  of   automatic   package  carrier   companies,   323,    311 
electric  light  and  power  companies,  323,  311 
telegraph    companies,    311 
telephone   companies,   323,   311 
public  highways  however  buill   or  owned,  «'*'•"' 
race   ways   of  hydraulic    companies,    354 
reservoiis,  tanks',  etc..  of  pipe  line  companies  for  natural  gas,  oil  or  water,  ...  1 

right  of  way, —  . 

in  case  of  pipe  line  companies,   .-.1 

plank    road   ami    turnpike   companies, 
railroad  companies,    183 
ship    canal    companies,    309,    310 
temporary  right  of  way  not   permitted 
ricdit  to  cross   lands    to  constiud    or   repair. 

in  case  of  automatic  package   carrier  companies    323,   311 
electric  light  and   power  companies,   3jm,  Sll 
hydraulic  companies,  344. 
railroad  companies.   183 
telegraph    companies.    317 
telephone  companies,  323,   317 
union  depot  companies,  313,  1^:; 
roundhouses    for    railroad-.    183 

in  case  of  union  depot  companies,  Sli,  L»J 
ship  canals,  construction  and  maintenance,  309 
stations   (see  "depots"  above.)  . 

in  ease  of  automatic  package   carrier   companies,   323,   317 
electric  lighi  and  power  companies,  ..'-..  Sit 
telegraph    companies.    317 
telephone  companies,  323,  3.17 


710  INDEX. 

(References   are   to   pages.) 

APPROPRIATION  —  Continued. 

tracks,  side  tracks,  etc.,  of  railroads.   170,   183,   1S5 

in   case   of   union    depot   companies,   313,    183 
water    channels,   gates,   wiers,   etc.,    for    hydraulic   companies,   354 
water  stations  for  railroads,  183 

in  case  of  union  depot  companies,  313,  183 
wharves,  not   included  in  powers  of  railroads,   185 
work-shops   for   railroads,    183 

in   case   of   union   depot   companies,   313,    183 
right  to  enter  and  survey  property, — 

constitutionality  of  provisions  as  to,  184 
in   case   of  automatic   package   carrier   companies,    323,   317 
electric  light  and  power  companies,   323,  317 
hydraulic  companies.  354 

pipe  line   companies  for  natural  gas,   oil  or  water,  571 
plank   road   and   turnpike   companies,    329 
railroad  companies,    183 
ship    canal   companies,    309,   311 
telegraph   companies,   317 
telephone    companies,    323,    317 
union  depot  companies,  313,  183 
right  to  make, — 

quo  warranto  lies  to  test,  628 

judgment   of   probate    court   as   to,    not   a   bar,    629 
statutes   authorizing   construed   strictly,   605 
in   case   of  railroads,    183 
statute   of  limitations  as  to,   190 
what   may   be   taken, — 

abutting  owners'  property  in  street,  by  street  railway,  302 
amount  of  —  corporation  determines  when,   184 

eil'ect   of   taking  more   than   necessary,    184,   606,   607 

disposition   of   surplus,    184,    607 
motion   to   make   company   take  more,   607 
artificial   works  which  obstruct  ship  canal,  310 

bridges,   causeways,   dams,  trestles,   etc.,  by  ship  canal   companies,  310 
franchises  and  rights  by  bridge  companies,  345 
lands,   etc.  (    see  also   "  purposes,"   etc.,  above.) 
used  for  parks,  when,  607 
what    included   in   "  lands,"    184 
materials    for    construction    (see   "purposes"    etc.,    above.) 
natural  objects  which  obstruct  ship  canal,  310 
piers,   wharves,   etc.,   by   ship   canal   company,    310 
property  of  other  companies, — 

by    automatic    package    carrier    companies.    323.    317 
electric  light  and  power  companies,  323,  317 
railroad  companies, — 

for   crossings   over   another   road,    185,   611 
property  of  canal  company,   185 

unfinished    roadbed    of   another    company,    when,    617 
use   of   draw  bridge   over   navigable   waters,   242 
street  railroad  company, — 

property  of  plank  road  or   turnpike  company,   302 
tracks  of  another  company,  302 

in  case  of  interurban   companies,  307 
in  cities  of  1st  class,  3rd  grade,  302 

telegraph   and  telephone    companies,   317,   323 
cannot   be,   when,   607 

lands  not  used  and  unnecessary  may  be,  607 
of    canal    company   by    railroad,    185 

cemetery  association  not  permitted,  346 

in  counties  containing  cities  of  first  and  second  class,  359 
companies  for  protecting  and  preserving  dead  bodies  not  permitted,  573 
plank  road  company  by  street  railroad,   302 
railroad    company    for    various    purposes. — 

automatic  package  carrier  line:   limitations.  323,  317 
crossings  for  another  road,  185,  611 
electric  light  and   power  lines,  323,  317 
right  to   use   draw  bridge   over  navigable   waters,   242 
telegraph   and  telephone  lines,   317.   318,   323 
unfinished  roadbed  by  another  company,  when,  617 
street   railway   company,   tracks   of,    by   another    company,   302 


LNDEX.  711 

(Referem       an    to  j 
APPROPRIATION  — Coul  i line. I. 

by   inter  urban  companies,  .m>7 
in  cii  tee  of   i  -i   cla »;  3rd   gi  ade,  302 
turnpike   company    bj     itreel    railroad,    302 
rights  of  abutting  ownei   .  ownei  ol   fee,  etc, 

in  case  of  canal  Lands,  taken  bj    railroad,   l-->.  'ill 
plank   road   <>r   turnpike  taken   by  street    railn 
right  to  use  streets,  alleys,  etc., — 

in  case  ni    pipe   line  companies,   ">71 
railroad  companies,   L88 
ship  canal   companie  .  311,   188 
school   lands,  by  railroads,  when,  815 
water  for  ship  canals,  309,   310 
By  counties, — 

abandonment  of  \  erdicl   in,  622 
chapter  8,  §  6414  et  i-"/.  does  nol   apply  to,  022 
for    altering   or    abolishing    railroad    crossings    over    highways,    230 
By   municipal    corporations, — 

abandonment  of  verdict  in,  622 
chapter  8,  §   04  14   et   seq.  does   nol   apply  to,  622 

for  altering  or  abolishing   railroad   crossings  over   highways,    230,   233 
extending  streets,  etc.,  across    railroad    property,    13 
pipe   lines    for   natural    gas.    petroleum    or    water,    -">71 
railroad   purposes,  as  owner,   is:! 

for  use  of  corporation,   cannot,    186 
By  state,  township,  district, — 

abandonment  of  verdict    in,  622 
chapter  8,   §  0414  et  seq.  does  nol   apply  to,  622 
Contract   or   agreement  in    lieu   of, — 

action   for  compensation   under,   may   include  what,   620 
ejectment  upon  breach  of  condition  of,  620 
equitable    lien  of   owner.   621 

enforcement    of.    621 
notice  to  subsequent  purchasers,  G21 
Dower  in  land  taken   by,  186 
Wrongful  taking  of  laud,  etc., — 

does  not  divest  owner's   title,   610 

remedies    for.      (Sec    "By    corporations  —  compulsory,"    above.) 
conversion,  action    for,   docs  nol    lie  when.   621 
ejectment,  action  for,  may  be  brought,   when.  620 
injunction  against  use  of  land  before  appropriation,  618.  620,  621 
in  case  of  railroad  company,   185,  607 
mandatory,   when.   620 
trespass,    action    for,    621 

not    barred    by    appropriation,    621 
what  constitutes,  619 
who  liable  in  case  of,  610 

APPROVAL. 

Interlocking   system,  etc.,   for  railroad   crossings,  23 

ARBITRATION,  ARBITRATORS. 

As  to  disputed  claims  under  mechanic's  lien  against    railroad.   85 

<>'ates   and    flagmen    at   railroad    and    highway    crossings    in    cities   of   2nd    dasc 

grade,  23 
value  of  stock  of  stockholders,   dissenting   to   lease,   etc., — 

in  case  of  electric    lighl    and    power   companies,   54,   206,   207 
railroad  companies,  206,   207 
street   railroad   companies,   52,   55,   206.   207 

ARTS,  FINE. 

Academy  or    Museum    of.      (See   MUSEUM    COMPANIES.) 
ART  SOCIETIES.      (See  Museum    Companies.) 

Trustees  of,  number  and  term   of,   113 
ARTICLES  OF  INCORPOR  \TI<>\.      [See  also  under  respective  companii 
Acknowledgment  of.  96,  '.'7 
absence   of,    effect,    07 
by    how   many   incorporator-.    96,    ''7 
form  for,  645 

should  be   in  this    state.   07 
who   may   take.   96,    97 

official    character    to    be    certified.    100 


712 


INDEX. 


(References  are  to  pages.) 
ARTICLES  OF  INCORPORATION  —  Continued, 
form  for  same,  045 
Amendment  of, — 

certificate  of, — execution  of,   102 
filing  and  record  of,  102 
form  for,  662 
must  state  what,   102 
corporations  may  make  what,   102 

discretion  of  secretary  of  state  as  to,   103 
effect  of,  on  stock  subscriptions,   139 
fees  for  filing.      (See  Fees.) 
form  for,   661 

incidental  and  auxiliary,  what  are,  103 
meeting  to  make,  102 

form  for  notice  of,  661 

for  waiver  of  notice  of,  661 
minutes  as  to,  forms  for,  etc.,  661,  662 
notice  of,   form  for,  661 
must  be  given,   102 
waiver   of,   form   for,    661 
may  be  made,    102 
takes  effect  when,   102 
vote  necessary   for,    102 
Copies  of, — 

fees  of  secretary  of  state  for  making,   10 
mandamus  does  not  lie  to  compel  issuance  of  certified,   101 
pri'na  facie  evidence  of  corporate  existence,   10U 
Execution  of,   96,   97 

blank  or  incomplete  articles.  97 
by    how  many  incorporators,  96,  97 
form  for,  645 
should  be  in  this  state,  97 
signing  by  initials.   97 
Filing  of,   100 

discretion  and  power  of  secretary  of  state,  94,  101,  103 
fees  for.      (See  Fees.) 
time   of.   what   determines,    101 
Forms  for,  645-660 

for  organization  ruling  over  subordinate  bodies,  658 
for  profit,  645-656 
limiting  voting  power  of  stock,  666 
not  for   profit,   656-659 
secretary    of    state    prescribes,    96 
stating    organic    rules    in    articles,    693 
Mistakes  in,   effect  and  correction  of,   97,  98 
Must  or   may  show  what.   94,    96,    121 

when  improvements,  etc..  are  not  at  single  place,   99 
counties  in  or  through  which  it  passes,  99 
kind  of  improvement,  99 
termini   of  improvement,   99 
sufficiency  of  description.   99,   100 
Omissions   from,   amendments  may    supply,   102 
Record   of,    100 

in    books   of   company  —  form    for,    675 

in    case    of   benevolent,    religious   and    secret   societies,    113 
Substantial   compliance  with    law   necessary.    97 
Votes  of  stockholders  may  be  limited  by,    121 
purpose    of  —  evasions,     122 

ASS. 

Rate  of  toll   for, — 

in   case   of   bridge  companies,    346 

turnpike  or  piank   road   companies,   331 

ASSAULT    AND    BATTERY. 

Corporation  not  liable  for,   107 

ASSESSMENTS. 

Against  railroad  companies.      (See  Commissioner  of  Railroad:   Railroads.) 

For  insurance.      (See  under  various  insurance  companies.  I 

For  taxation.      (See  Taxation.) 

On   account   of    impaired    capital    stock.      (See    Insurance    Companies.) 

On    stock   subscription.      (See    Capital   Stock.) 


INDEX.  718 

I  Referent  ea  axe  to  i 

ASSESSMENT  COMPANIES;     (See   under    various    In  urance   Compani 

ASSESSOR. 

Duties  and  powers  of,  as  to  Listing  personal  propertj   foi   taxation,  60 

ASSETS. 

Amount  of, — annual    statement    must   show.    ItiS 

in  case  of  companies  limiting  votes  of  stockholders,   1-1 
Application  of  —  order  of,  upon  enforcing  stockholders'  liabilities,  155 

ASSIGNMENTS. 

Executed  by  superintendent  of  insurance.     (See  m  n.m  mi  m>i  m   h    [WSURJJI 
Of  stock.     (See  Stock  Ckbtificatks.  ) 

ASSIGNMENT   FOR    BENEFIT   OF   CREDITORS. 

By    insolvent   corporations, — 

power  of  foreign  corporation  to  make,  14 
preferences  in,  1G7 

agreement  to  execute  mortgage  i^  not,  when,   167 

cognovit  note  is   not,    when.    167 

Oliio  rule  as  to,  U.  S.  courts  will  follow,   168 

remedy   of   creditors   in  ease   of,    168 
president  pro  tern,  cannot  make.  when.   1  — *i 

unpaid  stock  subscriptions,  jurisdiction  of  court  of  equity   as  to,   140 
Includes  stock  licld  by  assignor.    147 

ASSIGNS. 

Liability   of,   for   losses   and   expenses   of  mutual    insurance   companies,    4_1 

ATTACHMENT. 
Affidavit  for, — 

in  actions,  before  justice  of  peace,  624 

to    enforce    certain     judgments    against     railroad     company,     585 

order  for  delivery  of  books,  papers,  etc.,  in  quo  warranto  proceedings,  0.J4 
sufficiency  of,   in  action  to  enforce  stockholder's   liability,    162 
Foreign   corporation. — 

may  be  made  garnishee,   586 

non-residence  of,  ground  for,  when,   11,   T'>.    16,   585 

compliance  with   section   148c  exempts.    11.    L3,    16,   586 

constitutionalty    of    provision,    12 
filing  claim   with  receiver  of,  estops  from,  586 
in  action  before  justice  of  peace,  624.  t>  '."> 
in  case  of  banks,  530 
what    constitutes,    16,    581 
stock  of,  owned  by  non-resident,  not  subject  to,   16,   149 
Garnishment, — 

corporation    served   as   garnishee  how,   586 
in  action  before  justice  of  peace.   625 
foreign   corporation    may    be   garnishee.    111.    586 

suit  brought  where,  when  debts  due  foreign  corporation   are  attached,  086 
Grounds   for, —  , 

failure  of  trustees  of  certain   corporation  to  file  abstract  of   accounts,   or   report  ol 

trust    funds  is.    183 
in  action  before  justice  of  peace.  62 4.  625 

judgment  on  claim   against  railroad  for  labor,  material,  etc.,   is  when,   58a 
non-residence  is  when,  585 

in  action  before  justice  of  peace.  624.  625 

in   case   of    foreign    corporation,    11,    12,    13,    16,    530,    585,    586 

what   constitutes.    Hi.  581 
limitation   as   to.   of   railroad   employee.   624. 
wrongful    preference   by   corporation   is  not,   168 
Jurisdiction    in,    16 

Lien  of,  when  corporation  insolvent,   168 
Practice  in,   16,   585 

Residence  of  corporation  for  purposes  of.  9S 
Receivership,  effect  of, — 

application  for  receiver  may  be  attempl   to  defraud,   586 
creditors  filing  claim   with  receiver   of   foreign   corporations   eBtopped   from. 
in  same  jurisdiction  as.    cannot   attach.   586 
What  is  subject  to. — 

benefits   of  fraternal   beneficiary  association    are   not.  400 
cemetery  lot-   are    not.    when.   358 
stock    certificates    are,    when.    140 

in  case  of  foreign  corporation,   16.   149 


714  INDEX. 

(References   are   to   pages.) 

ATTACHMENT  —  Continued. 
What  enforced  by, — 

actions  to  recover  money,  5S5 

demands    arising    upon    contract,    judgment,    etc., — 
against  railroad  company,   585 
in    case   of   foreign    corporations,    585 

non-resident  defendants,  585 
injury  to  passenger  may  be  demand  upon  contract,  586 
statutory  liability  is  demand  upon  contract,   162 
demand   arising   from  malicious  prosecution  of   civil   action   by   foreign  corporation 

cannot  be,   586 
demand  arising  from  wrongful  injury  or  death, — 
in   case  of   foreign   corporations,   586 
non-resident   defendants,    5S6 
order  for  delivery  of  books,  papers,  etc.,  in  quo  warranto   proceedings,   634 
for    new    election   when    directors   were   illegally   elected,    632 

ATTORNEY.      (See    Prosecuting    Attorney.) 

Court   may    appoint    in    appropriation   proceedings    when,    616 
Fees  of, —  rt 

in  action  for  damages  for  usurping  office,  franchise,  etc.,  632. 
to   appropriate    property,    613,    616 
to   enforce    stockholders'   liability,    163 
when   employed   by   humane   societies,   466 
Pleadings,  motions,  etc.,  signed  by,  when,  585 
verified  by,  when,  585 

ATTORNEY  GENERAL. 

Discretion  of,  as  to  quo  warranto,  mandamus  will  not  control,  629 
Duties  and   powers   of, — 

as  to   articles  of  incorporation, — 

of  credit  guaranty  companies,  441,  365 
of  savings  and  loan  associations,   503 
as  to  enforcing, — 

bequests,  etc.,  for  charitable  uses,  etc.,  485,  486 
conditions  of   railroad   franchise,   194 

duties  of   directors,  officers,   etc.,   of  art  academies,   industrial   training   schools, 
law    library,    lecture,    library,    mechanic's    institute,    museum, 
widows'   home,   etc.,   companies,   484 
provisions   as  to — air  brakes,  automatic  couplers,  etc.,  257,  258 
banks   and   banking,   537 

railroad    bridges    over    canals,    navigable   water,    etc.,    213 
reports    and   excise   or    franchise   tax. — ■ 

in  case  of  electric  light,  gas,  messenger  or  signal,  natural  gas,  pipe  line, 
railroad,  street,  suburban  or  interurban  railroad,  union  depot 
and   water   works   companies,    79,   81 
equipment    ( R.   R. ) ,   and   freight  line   companies,   74 
express,   telegraph   and  telephone  companies,   70,  79,   81 
insurance  companies  other  than  life,  425 
sleeping   car   companies,    75,   76 
as   to  impairment  of  stock  or  assets  of  insurance  companies,   33 
quo  %carranto  proceedings,  629 

revocation  of  charter  of  building  and  loan  association,  561 
verification  of  pleadings,   585 

Fees  of,  for  collecting  excise  tax, 

in  case  of  electric  light,  express,   gas,  messenger,   or  signal,  natural  gas,  pipe  line, 
rail   road,   street,   suburban   or   interurban  railroad,   telegraph, 
telephone,  union  depot,  and  water  works  companies,  81 
equipment    (R.  R.),   and  freight  line   companies,  74 
sleeping  car   companies,    76 
Member  of. — 

appellate  tribunal  relative  to  foreign  corporations,  11 

commission    as    to    consolidation,    reinsurance    of    risks,    etc.,    of    accident,    health 

or  life  insurance  companies.  367 
state  board  of  appraisers  and  assessors,  69,  72,  75,  78 
state  board  of  equalization  for  banks,  81 

for  railroads,  82  . 

Report  of,  to  general  assembly.— as  to  farm  laborers'  association,  565 
Reports  to,  farm  laborers'  association  to  make,  565 


[NDEX.  m 

(  Ref<  • 
AUDITOR. 

Of  corporations, — 

name  and  address  of,  report  to  a  ate   audita]    to  giv<  ,. 

Of  county,     (See  Coi  ni  v  Ai  ditob.) 

Of    state.       (See   STATE    A.UDITOB.) 
AUTHORITY  TO  DO  111  SINKSS.     (See  Kom  ion  COBPOBATTONS :    IWSUBANCl    CoitPi 
AUTOMATIC  col  i-i.KKs,  All;   I'.RAKES,   ETC,      (See  Railroads.) 
AUTOMATIC  PACKAGE  CARRIEB   COMPANIES 
Agreements  with    other  companies,   323,    316 

Appropriation    of   property    by.     (See    Appbopbiatio  317 

when   lands  of  corporations  are  to   be   taken,   323,   : ;  I T 
when  railroad  lands  are  Lo  be  taken,  323,  317 
change  of  location  of  poles,  fixtures,  etc.,  323 
of  right  of  way  over  lands  fco  construct,  repair,  etc.,  323,  317 
Buildings — entering  or   using  without  written   consent    of  owner,  323,    317 

erecting   poles,   etc.,    near   to,    323,    317 
Charges  for  service, —  municipality  cannot  fix   in  agreement    for  use,  etc.    ol   street 

319 
Consolidation  of. —  authorized    when.    323 

laws   as  to   railroads   apply    to,   323 
Instruments,  machinery,  wires,  etc.,  of,  interfering  with,  penalty,  323,  322 
Lines  of, — 

construction  of. — along  roads,  etc.      (See  " streets,  alleys,"  etc.,  below.) 
means  of: — posts,  piers,  etc.,  323,  315 
must   not    incommode    public,    323,    315 
over    railroads.      (Sec    Railroads. ) 
trees,  cutting  and  trimming,   316 
construction  of  —  over  private  property, — 

erecting  poles,   etc..    without   owner'.-   consent,   323,   317 
change  of  location  of  poles,  etc.,  when  corporation  owning  lands   needs  it 
injuring  or  destroying  fruit  or  ornamental  trees,  323,  317 
joint  ownership   of,   323,   317 
leasing  of,  323,  316,  317 

must  not  interfere   with   other  lines.  301,   300 
repair  of,  etc.,  when  on  lands  of  corporation,   .'12:! 
light  of  way  for,  exclusive,  unlawful  to  contract   for,  323,  317 
Packages,   forwarding,   discrimination    in,   etc.,   323,   320 
Powers  of,  323,  316,  317 
Sections   3454  to   3460  apply  to,   323 
34G1   does  not  apply  to.   323 
3462  to  3471  apply  to,  323 
Streets,   alleys,   highways,   etc.      (See   "Lines   of,"   above.) 
use  and  occupancy  of.  323.  315 
additional    burden,   324 
consent  of  abutting  owner  accessary,  324 
consent  of  municipalitv   necessary,   324 
either  above  or  below  surface,  324 
penalty    for    using    without,    324 

AUTOMOBILE. 

Law  of  road,  as  to,  334 
Running  on   sidewalk  or  footpath,   334 
AUTOMATIC  SAFETY  DEVICES.      (See  Railroad  Crossings.) 
AVENUE   COMPANIES. 
Avenues  of. — 

appropriation  of,  within  limits  of  cities  of   l~t   class,   Isl    grade,  549 
compensation   for;    arbitration    a-   to,   549 
arbitrators  selected,   how,   ~>4!) 

failure  to  agree:    refusal  to  arbitrate,  549 
bonds  to  pay.  etc.,   549,  550. 
inability  to  agree.   549 
proceedings    for.    549 
resolution    declaring   necessity   of.    549 
appropriation  of  property  for. —  344.  548 

consents  of  majority  of  property  holders  necessary, 

record    of.    5  1 8 
free  avenue  companies  may  make,   548 

proceedings  for:   law  as  to  municipal   corporations  governs 
consent  of  municipal    authorities  necessary    when.   540 
force  and  effect  of;   release  of  authority  o\cr.  549 


71C  INDEX. 

(References   are   to   pages.) 
AVENUE  COMPANIES  —  Continued. 
construction  of,  3-44,  548 

in  case   of  free  avenue  companies,  548 
length,   width,   manner,    materials,   etc.,    344,   548 
must    be   to    acceptance    of   county   commissioners,    344,    548 
regulations  as  to,  free  avenue  companies  may  make,  548 
Incorporation  of  authorized, — 

in  counties  containing  cities  of  2nd  class,  2nd  grade,  344 
containing  not  less  than  100,000  population,  548 
Toll, — company  may  collect,  when,   344,  548 

free  avenue  companies  may  not  charge,  548 
same    as   turnpike,   etc.,    companies,    344,   548 
Toll  gates,  erected  when  and  where,  344,  548 
BAGGAGE. 

Bicycle   transported    by    railroad   as,   268 

need  not  be  crated,  208. 
Interurban  street  railway  may  carry,  307 
BALLOT. 

Election  of  directors  by,   120 

BANKING  BUSINESS,  Etc.— 

associations  with  banking  powers,  laws  authorizing  submitted  to  voters,  3 
building  and  loan  associations, — 

advancing  money   to  members  is  not  exercise   of,   557 
law  does  not  grant  power  to  do,  555 
by   foreign   insurance  companies   forbidden,   426 
express   authority    necessary    to    do,   524 
power    to    contract,    hold    and    dispose    of    real    and    personal    property    does    not 

authorize.   111 
religious  corporations  cannot  do,  524 
what  does  not  constitute, — 

loaning  money   on  note  and  mortgage,  367,   426 
purchasing  bill  of  exchange,  367 
receiving  money  on  deposit,   524 
BANES,   BANKERS,  ETC.      (See   Building   and   Loan   Association:     Savings   and  Loan 

Association.) 
Books  of  —  county  may  examine  when,  65 
Burglary  insurance  companies  may  insure,  445 
Capital   stock  of, — 

amount  paid  in  must  be  shown  in  report  to  state  auditor,  509 

in  statement  for  taxation  by  bankers  and  unincorporated  banks,  62 
shares   of,  — 

held  by  each   stockholder,   ■ — 

list  showing  must  be  kept,  64 

inspection  of,  by  tax  officers,  64 
listing  of,   for  taxation,   63,   64 

statement  for  taxation  of  bankers  and  unincorporated  banks  must  show,  62 
lien  on,  for  taxes,  82 

par  value  of,  report  to  county  auditor  to  give  when.  64 
tax  on,  bank  may  pay  when,  82 

may  deduct,  from  dividends,   etc.,   82 
transfer   of,    delinquent   taxes   paid  before,   82 
value  of,   for  taxation,  auditor  to  fix,  64 
equalization  of,  81 
Cashier  of — duties,  etc.,  of,  as  to  returns  for  taxation,  64 

reports  to  state  auditor  verified  by,  541 
Currency,  bills,   etc.,  as   money, — 

accounts  as  to  —  by  register  of  bank  department,  535,   536 
circulation,   etc.,   of  —  of  expired,    insolvent,  etc.,   banks,   533 

wlien  not  receivable  at  par.  528.  541 
counterfeits,  altered,  etc.,   cancellation  or  stamping  of,  done  how, 
penalty  for  refusing  to  stamp,  520 

for  stamping  genuine  notes,  529 
who  to  make,  528 
denominations  of;   penalty,  525,  526,  541 

in  case  of  foreign  banks,  527 
engraving  and    printing  of,    535 
express  authority  to  make,  etc.,  necessary,  525 
foreign,    — 

brokers,   etc.,   not  to   circulate  what,   527 
not  to  import  for  circulation,  526 


INDEX. 

(  Refi  rencea  art    to 
BANKS,  BANKERS,  ETC.— Continued. 

who  deemed  "  broker-.''  527 
provisions  as  to,  doI   to  apply  when,  626,  527 
fraudulent  use  or  disposition  of  registered  oi   unregistered,  bj    itate  offlcU 

payable  in  lawful   money  of   I   .  S..  52.". 
penalties  as  to,  525,  527,  528,  529 

paid   into  state  treasury.   525,   527, 

recovered  bow,  525,  5:i7,  528,  529 
redemption  payment,  etc.,  of,  — 
altered,  mutilated,  etc.,  525 
of  failing  banks.  536, 
of  insolvent,  expired,  etc.,  companies,  534 

failure  to  redeem,  proceedings  and  penaltj   for,  534 
persons  entrusted  with,   uol    to   circulate  oi    delay,   ."iJ7 
returned   notes  to  be  burned,  536,  537 

certificates  as  to,   536 
security   for,   — 

deposited  with  state  treasurer,  534 
accounts  of,  to  be   kept.  .">:;."> 

inspection  of.    who   may    make.   535 
failure  to  maintain:    quo   warranto   lies,   537 
fraudulent  use  or  disposition  of,  by  custodians,   i 
sale  and  transfer  of.   when  ami    how    madi 
sale  of.  to  redeem  notes  of  failing  bank,  536 
surrender  of.  upon  ceasing  to  do  business,  543 
transferred    u>   state   1  reasuri  r,   5:;:, 
'    suits  on  —  against  banks,   stockholders,   etc.,   530,   531 
unauthorized — -(see  "unauthorized  banking"  below.) 
Deposits —  (sec  "unknown  depositors"  below.) 

reports  to  state  auditor  must  show  whal   a-  to,   509,  510 
Directors  of,  — 

injunction  ancillary  to  quo  warranto  allowed   when,  634 
security   required    when.   <;:;! 
Dividends, — 

bank  may  pay  taxes  on   shares  and   deduct    from,   82 
none  while   delinquent  taxes  are  unpaid.   82 
reports  to   state  auditor   to  show,   509,   510 
Duties  and  powers  of.  generally,   127,  128 
Examinations  of  —  companies  existing   in    1845    subjeel    to,   ■">■_>>; 

examiner   for  —  appointment,  compensation,   duties,   etc.,   of, 
Plxpired  and  insolvent. — 

assets   of — distribution   of.   532 

interest  on,  holders  of,  chargeable  with,  when,  532 
receiver  for  funds  to  meet  contingent  oi    future  liability. — 
appointed    when.   532 
distribution    of  funds,   etc.,   532 
investment    of  funds,  etc..  532 
suit  for  accounting  as  to.  532 
books,  papers,  etc.,  of,    examination   of.    532,   533 
currency,   bills,   etc..  as  money —  (see   "  Currei  above.) 

examine]-,  master  commissioner  t<>  investigate,- — 
appointment  of:   by  supreme  court,  when.  532 
duties,  powers,  oath.  etc..  of.  532,  533 
trustees  of.  may  sue  on  warrant  of  attorney,  532 
Foreign  banking  companies, — 

deposit  with  state  treasurer,  12 
sections  148c.    148d.  do  not   apply   to,   11.   12 
suits  by,   and  against,   520.  530 
Free   banking  companies, — 

articles  of  incorporation  of,   537,   538 
acknowledgment   of,    538 

certified   copies  of.   evidence   of  corporate  existence, 
form   for,   696 
must  show  what,  533 
record,  etc..  of.  538 
inspection  of.   538 
books,  etc..  of — false  entries  in.   542 
capital    stock, — 

amount  of.  538 

articles  of   incorporation   must    give,    5   - 

company   cannot    hold  or  purchase    it-   own,   except, 


718  INDEX. 

(References   are   to   pages.) 
BANKS,  BANKERS,  ETC.—  Continued. 

of  other  corporations,  except,  539 
paid  in  before  commencing  business,   538 
directors  must  own  what  part  of,  539 
impairment  of,   dividends  not  to   be  made  during,  542 
increase  of,  538 

loans  on  its  own,  company  cannot  make,  539 
shares  of  —  lien  on,  company  has,  539 

number  of  —  articles  of  incorporation  must  give,  538 

held  by  each   stockholder,  538 
par  value  of,  539 
personal   property,  539 

transfer  of  —  bank   not  entitled  to,  of  another   bank,   539 
by-laws  prescribe  as  to,  539 
consent  of  directors  necessary   when,  539 
only  on  books  of  company,   539 
voting  power  of,   539 
withdrawal  of,  forbidden,  541 
cashier,  report  to  state  auditor  verified  by,  541 
corporate  existence  —  commences  when,  538 

duration  of,  538 
directors  of, — 

election  of;   notice  of  special,  etc,   539,   540 

liability  of,  for  violating  provisions  of   law,   542 

loans   to,   limitations  as   to,   543 

number   of,   539 

oath  of.  requirements  as  to,  539,  540 

qualifications  of,  539 

owner  of  what  part  of  stock,  539 
resident  of  state,   how   long,   509 
term   of  office  of,   540 
vacancies  —  filled  how,  540 

removal  from  state  causes,  540 
dissolution  of,  what  works.      (See  Dissolution  of  Corporation.) 
declaring  dividend  while  capital  impaired,   542 
failure  to  elect  directors  does  not,   540 
violating  provisions  of  law  regulating,  542 
dividends  —  declared  when,   541 
limited  to  net  earnings,  541 
not  to  be  declared  —  from   capital    stock,    541 
when  capital  stock  is  impaired,   542 
when  reserve  fund  is  depleted,  541 
evidences   of   debt,   bills,   etc., — 

company  can  assign  for   what  purposes,   541,   542 
fraudulently  assigning,  issuing,  etc.,  542 
must  be  payable  to  company  only,  541 
not  to  be  issued  to  circulate  as  money,  540 
examinations  and  visitation   of,   513 

examiner  to  make;   appointment,  compensation,  qualifications,  etc.,  543 
expenses  of;   made  when;    report,  543 
funds   of,    embezzling,   misapplying,    etc.,   542 
incorporators  of,   number  of,   537 

insolvency  of,  what  transactions  void  after  act  cf,  542 
liabilities   of, —  limitation   as   to   amount   of.    540 

report   to    state    auditor    must   show,    541 
loans,   etc.. — 

company  may  make,   538 

not  on  its  capital  stock,  539 
not  when  reserve  fund  is  impaired,  540 
limitations  as  to  —  as  to  amount  of,  541 
to  directors,  541,  543 
to  stockholders,  539,  541,  543 
name  of.   articles  of  incorporation  must  give,   538 
net   earnings  —  dividends   paid   from,   541 
how  determined,   541 

proportion    of,   carried  to    surplus   fund,    541 
officers,    etc.,   of  —  cannot   act   as   proxy,    539 

embezzlement,  etc.,  by:     penalty.  542 
organization   of  —  articles   must   give    time   of.    538 
certificate  of  compliance   with   law.   before.    538 
record  of,  with  secretary  of  state.  538 


INDEX.  Jlfl 

(Reference!  an    to  pa 
BANKS,  BANKERS,  ETC.— Continued. 

penalties  for  violating  provisions  ae  to,  542 
place  of  business      articles   hum    give 

office  for  business  and  redempl  ion  ol   not     I  ept 
powers  of,  538 

president,   reporl    to  state  auditor  verified   by,  ."ill 
real  estate,  may  hold  and  convey  what, 
for  business  purposes,  538 
to  secure  debts,  etc.,  .">:;!) 

limitations  as  to  I  ime  of  holding,  530 
ov,  iHi-  may  redeem  \\  hen,  539 
reports  of.   tn  state  auditor, — 
fa  Ise,  etc. ;   penalty  .  542 
form  nf,  auditor  prescribes,  .">  1 1 
requirements  as  to,   "i  1 1 
reserve  fund  —  amounl    of,   540 

depletion  of- — dividend  nol   to  !"■  declared   during,  540 

loans  or  discounts  not    in  be  made  during,  540 
must  lie  in  what,  •">  l<< 
resources,  reporl   to  state  auditor  to  Bhow,  54] 
stockholders  of, — 

liability  of,  amount    of,  ■>  tO 
loans,  etc.,   to,   limitation   as  to,   "ill,   543 
names  of.  articles  must  give,   538 

number  of  shares  held  by  each,  article-   musl    give,   . 
proxy  —  may   vote    by,   .">•;'•• 
who  cannot  act  as,.  539 
residence  of,  articles  musl   give,  538 
voting  powers  of,   539 
surplus  fund:   amount  of.   created   how,   "ill 
Interest  by. — 

rate  of,  in  case  of  specially  chartered  companies,  523 
usurious  —  effect  of  charging,  109 

may  be  set  up  before  or  after  judgment,   ')-'.) 
tender  of  legal,  not  necessary,   529 
Investments,  reports  to  state  auditor  must  show   what  a-  tn.  509,  510 
Liabilities  of  —  for  default  of  notary,  8 

reports  to  state  auditor  must   -how  what   as  to,   509,  510 
Loans,  etc.,  reports  to  state  auditor  must   show  what   as  to,  509,  510 
National  —  capital  stock  of, — 
what  may  be  invested  in, — 

assets  of  insurance  companies  other  than  life;   limitations,    III 
capital  stock  of  insurance  companies  other  than  life;   Limitations,    111 
deposits  with  superintendent  of  insurance. — 

in  case  of  —  fidelity  guaranty  companies,   ll.'h  411 
title  guaranty  companies,  515,  411 
Officers  of,  etc., — 

cannot  act  as  notary  when,  8 
liablity  of  — 

for   failing  to   make   or   making    false    return    for    taxation    of   company    >\ 

capital   stuck    is   divided    into    shares,   65 
in  case  of  irregularities  in  organization,   523 
powers  of,   fixed  by   custom,    128 
Organization  —  effect  of  irregularities   jn.  523 

of  free  banking  companies   (see  "  Free  banking  companies"  al" 
Penalties  —  for  violating  provisions  of  laws  of  organization,  537 
President   of,   power   to  borrow  money,    128 
Quo  warranto  lies  against   when.  537 
Real   estate, —  may    hold   what.    529 

reports  to  state  auditor   musl    -how   what   as  to,  509,  510 
taxed  same  as  that  of  individuals,  lit 
Register  of  bank   department, — 

appointed  by  state  auditor,  535 
duty,  etc.,  of  as  to, — 

accounts  of  blank  circulating  bank  notes,  535 
burning  returned  circulating   notes   of  bank-.   536,   537 
delivery  of  blank    notes   to    hank-.    536 
registering  bank  notes  delivered  to  banks.   536 
securities    deposited   to   redeem   circulation.    534,    535 
Reports   of,    to   state   auditor. — 

building  and  loan  associations  exempted.   509 


720  INDEX. 

(References  are  to  pages.) 
BANKS,  BANKERS,  ETC.— Continued, 
form  of,  509,  510 

in  case  of  banks  existing  in  1S45,  526 
penalties  for  failing  to  make,  509,  537 
publication  of,   509,  510 
requirements,  etc.,  as  to,  509,  510 
Resources  of,  reports  to  state  auditor  must  show  what  as  to,  509,  510 
Returns  of.  for  taxation.      (See  Taxatiox.) 

State  board  of  equalization  for.      (See  State  Board  of  Equalization  for  Banks.) 
Stockholders  of, — - 

liability   of, —  in   case   of  irregularities   in   organization,    523 

in  case  of  unauthorized  banking,  523,  524,  525 
list  of,  showing  names,  residence,  and  shares  held,  64 
inspection  of,  by  tax  officers,  64 
Suits  against.      (See  "Expired  and  insolvent"  above.) 
officers  of, —  competent  witnesses  against,  530 

depositions  of,  may  be  taken,  530 
on    bank    notes     (circulating), — 

copies  of.  etc.,  requirements  as  to,  531 
exhibition  or  inspection  of,  531 
pleadings  on;   separate  counts.   531 
on  notes,  bills,  written  evidences   of  debt,  etc., —  pleadings  and  proceedings  in,  530 
Surplus  or  undivided  profit, — 

listing  for  taxation  in  case   of  companies  having  no   capital  stock,  55 
reports  to  state  auditor  must  show,  509,  510 
Taxation   of.      (See   Taxatiox;   see  also   "Capital   stock"  above.) 
Unauthorized  banking, — 

banks   doing, — ■  comity  does  not  authorize  foreign,   523 
partners  in;    liability;   barred  when,  523 
securities  given  to,  void  when,   523 
stockholders,  etc.,  of,  liability;   barred  when,  523,  524 
what  constitutes,  523,  524 
bills,  notes,  paper,   etc.,   unauthorized. — 

agencies,  offices,  etc.,  for  redeeming  forbidden,  525 
foreign   companies,    cannot    issue,    523 
making,   circulating,   etc.,  forbidden,  525 
penalties  as  to  —  paid  into   state  treasury.  525 

recovered  how,  525 
stockholders,  partners,  etc.,  liability  of.  for;    barred  when,  523 
suits  against  stockholders  to  collect,   524 
defendants  in,  491 
demand  and  notice  unnecessary,  524 
judgment  in,  524 

against  one  or  more  when,  524 
pleadings  in,  524 
what   constitutes,   523,    524 
Unknown  depositors, — ■ 

deposits  of.  paid  into  county  treasury  when.  544 
bank  released  upon  such  payment.  544 
payment  to  claimants  when  and  how.  544 
appeal,  etc..  from   decision  as  to,  545 

sections  897,  6407  to  6410  apply  to  proceedings  for,  545 
penalty  for  non-compliance  with  provisions  as  to.  545 
applied  how,  545 
paid  into   county  treasury,  545 
recovered   how,    545 

duty  of  prosecuting  attorney  as  to,   545 
who   may   sue  for.    545 
report  of,  to  probate  judge.  54 3 

fees  for  making;   payment  of.  etc.,  544 
inspection   of  record  of,   544 
record  of,  544 
requirements  as  to,  543 
who  are  deemed,   543 
RANKING  POWERS.     (See  Banking  Business.) 
BANKRUPTCY. 

Stockholders'  liability  provable  in.  when,  164 

BARNS.  STABLES,  ETC. 

Appropriation  of  land  on  which  situated, — 

cemeterv  associations  cannot  make.  when.   357 


LNDEX.  7-*l 

<  Referencei  are  t<>  pa 
BELLS.      (See  Railroad   CROSSINGS.) 

BENEFICIAL    SOCIETIES.      (See    BENEVOLENT     ASSOCIATIONS.) 
May  hold  stock  in  public  hall  companies,  when,  :;'■'•"> 
elect  directors  of,  when,  395 
liability  of,  as  stockholders,   395 

BENEVOLENT  ASSOCIATIONS,  ETC       (See    Beneficial   Societies:   Chautable    - 

Companies:   Insurance  Companies.) 

Articles  of  incorporation  of, — 
fees  for  filing,  9 

may  provide  for  fiscal   trustees,  when,  496 
must  be  copied  into  book,   113. 
Assessments  by  certain  secret  societies,  501 
Cemetery  grounds  of, — 

location  of,  near  dwelling  bouse  forbidden,  when,  357 
sale  of  certain,  to  townships.  489 

sale  of,  excepted  from  general  provisions  as  t"  real  --int.',  498 
Consolidation  of,   496 
agreement   for,   496 

certified  by  clerk  of  first  meeting  becomes  articles,  4'.i. 
filed  and  recorded  with  secretary  (if  state,  497 
recorded  with  county   recorder,   497 
certified  copy  of,  evidence  of  corporate  existence,   497 
made  by  whom;    must  specify  what,  496 
ratification  of,  496 
constitution,   by-laws,   rules,  etc.,   497 
effect  of,  497 
meetings  for,  496,  497 
adjournment  of,  497 
who  may  vote  at,  496 
officers  of  new  society,  496 
powers  and  liabilities  of  new  society,  497 
property,    etc.,    of  original   societies, — 

held  in  trust  to  be  governed  by  original  terms,  497 
passes  to  new  society,  497 
subsequent  consolidations,   498 
transfer  of  real  estate  upon,  498 
petition   for,   498 

decree  of  court  upon,  498 
not'  i'  i  f  tiling.  498 
par  Lo5    198 

Donations,  etc..  I         irtain  secret   societies,   501 
Endowments,   ]  it    of.  by   certain  secret  societies,  501 

amount  of.  . 
Fiscal  trustees  i  hen  women  may  be  trustees,  495.  496 

appointment  of,   495 

request  for,  filed  with  probate  court,   495 
compensation  a   d  number  of,  495 
powers  and  du1  .s  of,  49."> 
terms  of  office      f:   vacancies,  495 
Members  of  —  right,  to  vote,   113 

who   may  be,    113 
Name  of, —  consolidation  agreements  must  give.  496 
Property,  funds,  etc.,  of, — 

fiscal  trustees  to  handle  when  women  may  be  trustees,  4('."> 

powers  and  duties  of,   as  to,  495 
trustees,  etc.,  may  transfer  and  convey,  when.  4!".i 
Real   estate   of, — sale,"  exchange  or    incumbrance  of, — 
certain  transfers,  etc.,  validated.  499 
petition  for:   must  show  what,  498 
confirmation  of  sale  under.  500 
decree  of  court  upon.  498,  500 
notice  of  pendency  of.  500 
parties  to.  498,  499 
service  of  process.  499 
purchase  money  mortgage  may  be  given  without  order  of  eourt.  490 
special  laws  empowering  void.  499 
without  authority   of  court,    invalid.   490 
Reserve   or  accumulated  funds  of  certain    secret   societies, — 
investment  of,  500 
trustees  to  take  charge  of,   500 


722  INDEX. 

(References  are  to  pages.) 
BENEVOLENT  ASSOCIATIONS,   ETC.— Continued, 
duties,    powers,    etc.,    of,    500 
number,  term;    removal,   500 

security  from,  for  faithful  discharge  of  duties,  500 
Suits  by  and  against, —  certain  secret  societies  may  sue  and  be  sued,  501 
Trustees  of  lodges,  societies,  or  bodies  of,  113 

BEQUESTS,  ETC. 

Corporations  may  receive,  for  certain  purposes.      (See  under  various  companies.) 

For  charitable  uses,  etc.,  attorney  general  to  enforce,  when,  485,  486 

Of  dividends,  includes  stock,  when,   148 

To  unformed   corporation,    104,  486 
BEVERAGES ,—  MANUFACTURERS,    BOTTLERS,    ETC..    OF,— 

Fees  for  filing   initials  or  names  of,  with   secretary   of  state,   10 
BIDS,   BIDDERS.      (See  Street  Railway  Companies.) 
BICYCLE. 

Law  of  road  as  to:  turn  to  right.  334 

Railroads  to  transport  as  baggage,  268 
need   not  be  crated,   268 

Running  on  foot  path  or  sidewalk,  334 

BILL  OF  LADING.      (See  Railroads.) 

BILL    OF    SALE. 

Necessary,    in    case   of   railroad    scrap    metals,    241 

BLANK    FORMS.     (See    Forms.) 

BOARD  OF  APPRAISERS  AND   ASSESSORS.      (See   State  Board   of   Appraisers,   etc.) 

BOARD  OF  APPRAISERS  OF  RAILROADS. 

Apportionment  of  valuation  by:    certificate  of,  67 

Compensation,   67 

Consists  of  whom,  65 

Contempt  of,  67 

Duties  of,  66,  67 

Meetings  of;    quorum,  etc.,    65,   66 

Minutes  and  proceedings  of,   65,  66 

certified  copies  of.   for  each  county,   66 
inspection,   etc.,   of,   66 

Penalties  for  refusing  to  comply  with  requirements  of,  66 

President  and  secretary  of,  65 

Reports   of,   66 

Vote,  necessary  to  action,  65 

record  of:  yea  and  nay,  when,  65,  66 
BOARD   OF   DIRECTORS.      (See   Directors.) 

BOARD  OF  EQUALIZATION.      (See   State  Board   of  Equalization.) 
BOARD  OF  PUBLIC  WORKS.      (See  State  Board  of   Public   Works.) 
BOARD  OF  TRADE.      (See  Chamber  of    Commerce.) 
BOARD    OF    TRUSTEES.      (See    Trustees.) 

BOARDING. 

Of   railroad   construction   hands.        (See  Railroads.) 

BOILER  INSURANCE.     (See  Insurance  Co's  —  Boiler. ) 
BONDS  —  CORPORATE.      (See  also  under  respective  companies.) 
Amount  of;   limitations  upon,   150 

in  case  of  Ohio   River  bridge  companies.    348,   150 
railroad   companies,    196.    200,   209 

certain    narrow    gauge    roads,    199 
consolidated    companies,    209 
street  railroad   companies,   200 
issues  in  excess   of,  effect,  200 
Convertible  into  stock, — 

amount  of,  limitation  upon,  151,  152 
assent  of  stockholders  to.    151 
common    or    preferred     stock,     152 

in  case  of  railroad  companies.   209 
fraudulent  purpose  of  issue  of,  198 
holder  of,  not  entitled  to  stock  dividends  when,  208 
interest   upon,    152 
may  be  issued  when,  151,  152 

in  case  of  railroad   companies,   196 

..'onsolidated    railroad   companies,    209 


INDIA. 

(References  are  i"  pages.) 
BONDS  —  CORPORATE  —  Continued. 

proportion  of  bonds  to  Btock   upon  conversion,   L98 
refusal  to  convert   bonds, — 

pleadings  in   action   for,    !■">-.    108 
right  of  action  for,  cannol   be  assigned,   L98 
riglit    of    conversion    follows    bonds,    152,    198 
secured  how,    L52 
Corporations    may    invest     what    in, — 

insurance   companies   other    than   life, — 

assets,  capital   stock,  deposit,   in   bonds  <>f   railroad  <,r  solvent   corporation,    til 
fidelity   guaranty   companies  —  deposit    with    superintendent    ol    insurance   in    bonds 

of  railroad   oi    solvent   coi  porat  ions,    113,    ill 
safe   deposit   and    trust   companies    and    savings    and    loan    associations    in    ■ 
cities, — 
capital  stock   and    trust  deposits   in    railroad    bonds,   511,   515 
title  guaranty  companies  —  deposit   with   state   treasurer    in   bonds   of    railroads   <>r 
solvent  corporations,  515,   411 
Corporations  may   issue,  150 

in  ease  of  railroad  companies,   196,  200,  209 
certain  narrow  gauge   roads,    199 
consolidated     railroad    companies,    209 
in   case  of  street  railroad   companies,   200 
Coupon    bonds, — 

change  of,   into   registered   or  vice  versa,   1G7 

effect  of.   107 
corporations  may   issue.    150 

in  case  of  Ohio   River  bridge  companies.  348,   150 
coupons  attached  to  securities  deposited  by  companies,  delivered  to  company  how.  35 
negotiability   of  coupons.    197 
Denominations  of  railroad,  in  foreign  currency  when,  210 
Exchange  of,   for   materials,   services,    etc.,   201 
Execution    against,    before    delivery.    199 
Guaranty  of  —  effect  of;   sale  or  loan,  etc.,  201 
Holders   of.  right  to  vote   for  directors  of   railroad   company.  203 
Interest   upon,   150 

cumulative  when.  200 

in  case  of  Ohio  River  bridge  companies,  348,   150 
railroad    companies,    196,    197,   200.  209 
certain  narrow  gauge  roads,   199 
consolidated    railroad    companies,    209 
street  railroad  companies.  200 
reports  of  railroad  must  state  what  as  to,  28 
Interpretation    and    construction    of,    108 
Issuance  of, — 

mandamus   to   compel    will    not   lie    when.    10, 

to    further    objects    of    illegal    amendment    of    articles    void    when.    103 
Par  value  of  —  in  case  of  railroad  and  street  railroad  companies,  200 
Payment   of.   secured    how.    150 

effect  of  conditions   in  mortgage   upon.   107 
in  case  of  Ohio  River  bridge  companies,   348,    150 
railroad   companies.    196,   200,   20!) 

certain    narrow   gauge   roads.    100 
consolidated    railroad    companies.    209 
street   railroad    companies,    200  _ 
Proceeds  of  —  are   trust   funds   when.    107 

misuse    of.    injunction    to    prevent.    107 
Purposes  for  which   issued. — 

in  case  of  railroad   companies,   196,   200.  200.  210 
certain  narrow  gauge  roads.    199 
consolidated  railroad  companies,   209.  210 
in  case  of  street  railroad  companies.  200 
Railroad  companies   may   purchase  of  bridge   companies.   347 

Redemption  of  — railroad  companies  may  issue  bonds  or  Btock   for.    IJJO,  sua,  »w 
Registered  —  change  of.  into  coupon  or  vice  versa,   167 
corporations   may  issue,    150 

in  case  of  Ohio  River  bridge  companies,    348,   150 
Sale  —  mortgage,   pledge,   etc.,   of. — 
below  par,    150 

in  case  of  Ohio    River  bridge  companies.   347,  201 
railroad  companies.  201 


724  INDEX. 

(References   are   to   pages.) 
BONUS  —  CORPORATE  —  Continued. 

foreign   railroad   companies,    201 
to   directors,   void   when,   211 
committee  for,  powers  of,   150 
compensation   of   broker    for,    150 
in  case  of  railroad   companies,  201,   210 
certain   narrow   gauge   roads,    199 
consolidated   companies,   209,    210 
powers  of  directors  as  to,   152 

of    president,    151 
time,  place,  and  rate  —  in  case  of  Ohio  River  bridge  companies,  347,  201 
in  case  of   railroad   companies,   201,   209,   210 
in  case  of  certain  narrow  gauge  railroads,   199 
under  proceedings  in  aid  of  execution  before  delivery  by  company,  199 
usury   in,    201 
Second  mortgage  bonds,   certain  narrow  gauge  railroads  may   issue,    199 
Section  3256  applies  to,  in  case  of  Ohio  River  bridge  companies,  348 
Validity  of,  company  estopped  to  deny  when,  198,  200 
Vote  authorizing. — 

of  directors;   yea  and  nay  vote;   record  of,   152 
of  stockholders  of  railroad  company,   196,  209 
in  case  of  certain  narrow  gauge  roads,  199 
consolidated   railroad    companies,    209 

BONDS  —  INDEMNITY     AND     OFFICIAL.      (See     also     under     various     companies     and 

officers. ) 
Approval   of; — 

by  governor  —  in  case  of  commissioner  of  railroads  and  telegraph,  21 

in   case  of  superintendent  of   insurance,   31 
by  superintendent  of  insurance  —  in   case  of  deputy,   31 
when  fidelity  and  guaranty  company  is  surety,  415 
Costs  of,   allowance  of,  when  fidelity  and  guaranty  company  is  surety,  415 
Filed  with  secretary  of  state, — 

in  case  of  commissioner  of  railroads  and  telegraph,  21 
superintendent   of  insurance,    31 
Injunction.      (See  Injunction.) 
Of  bidder  for  street  railway  grant,  49 
Surety  on, — 

fidelity  and  guaranty  companies  may  be  when,   414,  415 

cannot  be  of  superintendent  of  insurance,   415 
liability  of,  on  bond  of  treasurer  of  corporation,   127 
Time  for  giving  in  case  of  action  by  municipality  to  collect  fines,  etc.,  against  railroad 

and   telegraph    companies,    30 
To  protect  stockholders,  rights  of  creditors  under,  158 

BONDS  —  PUBLIC. 

County, — 

for   altering  or   abolishing   railroad   and   highway   crossings,   231 

denominations   of;    interest;    tax;    sale  of,   etc.,   231 
what  may  be  invested  in, — 

assets    or    accumulation    of, — 

credit    guaranty    companies,   442,    366,    365 
farm   laborers'  associations,   564,   565 
insurance    companies    other    than    life,    411 
life    insurance    companies,     368 
savings    and   loan    associations,    505 
capital   stock  of, — 

credit   guaranty   companies,   441 
insurance   companies    other    than    life,   411 
life   insurance    companies,    365 
safe   deposit    and   trust   companies,    511 

may  be  of  other  states  when,  511 
savings  and  loan  associations  in  certain  cities,  514,  515,   511 
deposits  in   trust  of, — 

safe    deposit    and    trust    companies,    511 
may   be   of    other    states   when,    511 
savings  and  loan  associations   in  certain  cities,  514,  515,  511 
deposits  with  inspector  of  building  and  loan  associations,— 

in  case   of   foreign   companies,   559 
deposits   with    state   treasurer. — 

in  case  of  bond  and  investment  companies,  518 
title  guaranty  companies,   515,  411 


LNDEX. 

(Reference!  are  i"  pages. ) 
J30NDS  —  PUBLIC  —  Continued. 

what  may  be  invested  in, — 

deposits   with    superintendent  of   insurance, — 

as  inspector  of  building  ami  loan   associations    (foreign] 
in  case  of  accident  insurance  companies  insuring  em  ill 

credit   guaranty    companies,    HI.    365,    300 

foreign   companies,    l  I  l 
fidelity    guaranty    companies,     113,    411 

foreign    companies,    4  13,    4 1  I 
insurance  companies   other   than   Life   foreign   t"   I  ,   8.,    128 
life  insurance  companies,   366,   365 

companies  foreign  to  U.  S..  373,  366,  305 
companies  of  other  states,  .171 
reserve  fund  t.f  purely  accident  assessment    insurance  companies,  391,  368 
Municipal, — 

for   altering   or   abolishing   railroad    and    highway   cr< 

denominations;   interest;   t;i\;   sale  of,   etc.,  -HI 
for  appropriation  of  avenues,  etc.,  of  companies,   549,   550 

execution,   interest,   sale,  tax.,  etc.,  550 
what    may   be   invested    in, — 

assets  or  accumulations  of, — 

credit   guaranty   companies,   442,   3GG,   305 
insurance  companies   other  than  life,  411 
life  insurance  companies,  .'508 
savings    and    loan    associations,    505 
capital  stock  of, — 

credit   guaranty   companies,   441 
insurance   companies    other    than    life,    411 
life    insurance    companies,    365 
safe  deposit  and  trust  companies,   511 
may  be  of  other  states,  when,  511 
savings    and    loan    associations    in    certain    cities,    f>14.    515,    511 
deposits   in   trust    of, — 

safe  deposit  and   trust  companies,   511 
may  be  of  other  states,   when,  ."ill 
savings  and  loan  associations    in   certain   cities,    514.   515,   -".11 
deposits   with   inspector   of   building   and    loan    associations, — 

in    case    of    foreign    companies,    55!  i 
deposits  with  state  treasurer, — 

in  case  of  bond  and  investment  companies,  518 
title  guaranty  companies.   515,  411 
deposits   with   superintendent  of   insurance, — 

as  inspector  of  building  and  loan  associations    (foreign),  55'.' 
in  case  of  accident  insurance  companir-   insuring  employers,  414 
credit   guaranty    companies.    441,    366,    365 
fidelity    guaranty    companies,    413,    411 

foreign   companies.    413.  411 
insurance  companies  other  than  life,   foreign   to    l".   S.,  428 
life  insurance  compauies,  36G,   365 

companies  foreign   to  U.   S.,   373,    366,    365 
companies  of  otber  states,  371 
reserve  fund  of  purely  accident  assessment   insurance  companies,  391,  368 
sinking  fund   of   cemetery   associations,   3C1 
School, — 

assets  or  accumulations  of  savings  and  loan  associations,  invested  in.  when.  505 
State,  what  may  be  invested  in. — 
assets  or  accumulations  of, — 

credit    guaranty   companies,   442,   366,    365 
farm  laborers'  associations,   564,    565 
insurance   companies   other   than    life,   411 

may  be  of  other  states,  411 
life   insurance  companies,   368 
savings  and  loan   associations,   505 

may  be  of   other   states,  when.   505 
capital   stock   of, — 

credit   guaranty   companies,   442 
insurance  companies   other   than    life.  411 
life  insurance  companies,  3G5 
safe   deposit   and   trust  companies,    511 

may  be  of  other  states,  when,  511 
saving  and  loan  associations  in  certain  cities,  514.  515.   51  1 


726  INDEX. 

(References   are   to   pages.) 

BONDS  —  PUBLIC  —  Continued, 
deposits  in  trust  of. — 

sale  deposit  and  trust  companies,   511 
may  be  of  other  states,  when,  511 
saving  and  loan  associations  in  certain  cities,  514,  515,  511 
deposits   with   inspector   of   building  and   loan   association, — 

in  case  of  foreign  companies,  559 
deposits  with  state  treasurer, — 

in  case  of  bond  and  investment  companies,  518 
title   guaranty    companies,    515,    411 
deposits    with    superintendent    of   insurance, — 

as  inspector  of  building  and  loan  associations i   (  foreign ) .  559 
in  case  of  credit  guaranty  companies,  441,  366,  365 
foreign  companies,  443,  444 

may   be  bonds   of   other   states,   444 
in  case  of  fidelity  guaranty   companies,   413.   411 

foreign  companies,  413,  411 
in  case  of  insurance  companies  other  than  life,  foreign  to  U.  S..  428 
in  case  of  life  insurance  companies,   366,  365 
companies  foreign  to  U.  S.,  373,  366,  365 
companies   of  other   states,    371 

may  be  bonds  of  other  states,  371 
reserve    fund  of' accident   assessment   insurance   companies,   391,   368 
sinking  fund  of  cemetery  associations,  361 
Township. — what   may  be    invested   in, — 

assets  and  capital  stock  of  insurance  companies  other  than  life,  411 
deposit  with  state  treasurer  in  case  of  title  guaranty  companies,  515,  411 
deposit   with    superintendent   of   insurance, — 

in  case  of  accident  insurance  companies  insuring  employers,  414 
fidelity    guaranty    companies.    413,    411 
United   States, — what  may  be   invested  in, — 
assets   or  accumulation  of, — 

credit   guaranty   companies,    441,    366,    365 
farm  laborers'   associations,   566,   565 
insurance  companies  other  than  life.  411 
life  insurance  companies,   386 
savings  and  loan  associations,  505 
capital  stock  of, — 

credit   guaranty   companies,  441 
insurance  companies  other  than  life,  411 
life   insurance  companies,  365 
safe  deposit  and  trust  companies,  511 

savings   and   loan  associations-  in   certain  cities,   514,   515,   511 
deposits  in  trust  of  bond  and  investment  companies,  518 
deposits  with  inspector  of  building  and  loan  associations,  559 
deposits  with  state  treasurer  in  case  of  title  guaranty  companies,  515,  411 
deposits  with  superintendent  of  insurance, — 

as  inspector  of  building  and  loan  associations,  559 
in  case  of  accident  insurance  companies  insuring  employers,  414 
credit  guaranty  companies,  441,  306,  365 

foreign  companies,  444 
fidelity   guaranty    companies   413,   411 

foreign  companies,  413,  411 
insurance  companies   other   than   life,   foreign  to   U.    S.,   428 
life  insurance  companies,  366.   365 

companies  foreign  to  U.   S.,  373,  366,  365 
companies  of  other  states,  371 
reserve   fund   of   accident    assessment    insurance   companies,    391,   368 
sinking  fund  of  cemetery  associations,  361 

BOND  AND  INVESTMENT    (DEBENTURE)    COMPANIES. 

Agents  of, — appointment  and  license  of;    fees  for.  etc.,  519,  520 

doing  business  when  company  has   not  complied  witli   law,   520 
Business  of, — 

carrying  on  improperly  or  unlawfully;   quo  warranto  lies,  520. 
certificate   of   authority  to   do,   519 

fees  for  filing  application  for;   issuing  and  renewal  of,  520 
renewal  of,  annually,  519 
revocation  of,   519 
supervisor  issues,  when,   519 
commencing  —  deposit  necessary  before,   518 


INDEX. 

(Referencei  arc  t.i  \... 
BOND  AND  INVESTMENT  COMPANIES       «  ontinued. 
whai    mual   be  Hied   before,  619 

eopj    of   by-laws,    charter,    report,   etc.,   519 

nature    of,    518 
Deposit  with  state  treasurer,  518 

action  to  collect  claims   payable   from 
amount  of,   518 

applies  to  partnerships,  associations,  etc., 
building  and  loan  companies  excepted,  518 
capital  slmk   paid    up    used   for,  5  1s, 

exchange  of,   619 

in  case  of  existing  companies,  518 
income    from,   companies   entitled   bo,    when,   519 
in  what  securities,  518 
object  and    purpose  of,   518 
release  of,  upon  ceasing  to  do  business,  518 
Examination  of   (see  "Reports,"  below.) 
fees  and  expenses  of,  520 
supervisor  may  make.  when.  519,  520 

foreign  deposits   with  state  treasurer  before  doing   business,    12 
sections  148c,   148d  do  not  apply  to,   11,   12 
Officers  of,  doing  business  when  company    has   uol   complied   with    law,  620 
Provisions  as  to  —  apply  to  partnerships,  associations,  etc.,  518-520 

penalties   for    failure  to   comply   with,   520 
Quo  warranto  against,  supervisor  brings,  when,  520 

notice  to  company  before,   520 
Reports  to  supervisor, — 

exemption   from    provisions  of   "  Willis   Law,*'   20 
failure  to  make,   penalties   for,   520 

revocation  of  license  to  do  business,  519 
false  or  fraudulent;   revocation  of  license  to  do  business,   619 
fees  for  filing,   520 
forms  for,  519 

posting    at    principal    office,    519 
publication  of,  519 
requirements  as  to,  519 
Service   of   process    upon,   519 

designation   of   supervisor   as  attorney    for   purposes   of.    51!) 
made  before  commencing  business,  519 
Supervisor    of, — 

acting  and  deputy  inspector  of  building  and   loan  association   is,   520 
duties  and  powers  of.  as  to, — 

certificate   of   authority   to   do   business,   519 
examinations   of   con. panics,   519,   520 
generally,   520 
licensing    agents    of,    519 
process   served    upon   him,   519 
quo   warranto  proceedings  against,   520 
reports  of  companies,  519,  520 
fees,  etc.,  of, — 

for  affixing  seal  and  certifying  papers,   520 

certificate  of  authority  to  do  business,  520 

renewals  of.  520 
filing  annual  reports,   520 

application    for   authority   to  do    business,    528 
papers,    520 
license  to  agent.  520 
paid    into    state    treasury.    520 

BONDING    COMPANIES.     (See    Insurance    Co.'s  —  Accident    and    Health:    I 

Co.'s —  Fini:i.iTY      Guaranty:       [nsuranci       Co.'e 
than   I. nr:    Insurance  Co.'s  —  Title  Guaranty:   Safi 
posit  axd  Trust  Companies 

BOOKS  AND  PAPERS. 

Duty  of  directors  of  corporations  to  keep,  130 
Evidence,    when,    144 

as  to  who  are  stockholders,  144 
Examination  and  inspection  of. — 

county  auditor  may  make,  of  banks,  when.  05 
stockholder  entitled  to,  142,  146 

form   for   regulations  as  to,   670 


728  INDEX. 

(References  are  to  pages.) 
BOOKS  AND  PAPERS  —  Continued. 

in    case    of    foreign    corporations,    15 
motive  of  stockholder,  146 
remedy  for  refusal  to  permit,   140 
pleadings   in    action    for,    146 
superintendent  of  insurance  may  make  of  insurance  companies,   32,  57,  59 
upon   discontinuance   of   business  —  in    case   of   insurance    companies,    37 
in  case  of  life  insurance  companies,  36 
Forms  for,  of  corporations,  674,  675 
Production  of, — 

commissioner    of    railroads   and    telegraphs   may   compel,   29 
state   board   of  appraisers   and   assessors   may   compel  — 

in  case  of  electric  light,  gas,  messenger  or  signal,  natural  gas,  pipe  line,  rail- 
road,   street,    suburban    or    interurban    railroad,    union    depoit 
and  water  companies,  79,  80 
equipment    (R.   R. )    and   freight  line  companies,  ^73 
express,  telegraph  and  telephone  companies,   70,  79,  80 
sleeping  car  companies,  75 
Subscription,  to  capital  stock.      (See  Capital  Stock.) 
Transfer  of  stock  on.      (See  Capital  Stock.) 
BRAKEMAN.      (See  Railroads.) 

BRANCHES  OF  RAILROADS.      (See  Railroad   Companies.) 

BRIDGES.     (See  Bridge   Companies:    Railroads:    Railroad   Crossings:    Turnpike,   etc., 

Companies.  ) 
Lighting  of,  municipality  may  require.      (See  Municipal  Corporations.) 
expense    of  —  assessment    for    when    done    by    municipality,    45 

lien   for;    enforcement,   etc..    of,    45 
failure  to   comply   with   requirements  as  to.  45 
notice  as  to,  45 

ordinance   requiring  must  specify  what,  44 
Of  bridge  companies  —  generally.      (See  Bridge  Companies  —  Generally.) 

ovei  Ohio  River.      (See  Bridge  Companies  —  over  Ohio  River.) 
Power  of  ship  canal  company  as  to.      (See  Ship  Canal  Companies.) 
BRIDGE  COMPANIES,—  GENERALLY. 
Bridges  of, — 

approaches   to,  appropriation  or   purchase   of  property  for,   345 
construction  of,  franchises,  rights,  etc..   appropriated  for.   345 
lighting  of  in  municipalities.      (See  Municipal  Corporations.) 
regulations  as   to,   company  may  make,   346 
sale,   etc.,   of,   to  municipalities  when  within  limits,   345,   335 

section  3492  applies  to,  345 
site  of,  appropriation  or  purchase  of,  345 
streets,   roads,  avenues,  used  for,   345 
watchmen  at ;   powers  of,   346 

arrest  by,  without  warrant,  346 
Powers    of,    345 
Real   estate  —  company   may    appropriate   what,    345 

may  hold  in  fee  or  otherwise,  345 
Return  of,  for  taxation,  56 
Section  3492  applies  to,  345 
Tolls—  may  fix   and  collect;    limitations,   347 
rates  of,  345,  346 

demanding  more  than  permitted,   345 
effect  of  provisions  as  to,  upon  special  charters,  346 
for   use  by  railroad,    347 
must   be  posted,  345.   347 
BRIDGE  COMPANIES  —  OVER  OHIO  RIVER. 
Bonds  of.     (See  Bonds  —  Corporate.) 
Bridges   of, — 

approaches  to,    appropriation   or   purchase  of  property  for,   346 

extension  of,  etc.;  bonds  for,  348 
construction  of,  over  street,  road,  etc.;  limitations,   346 
contracts  with   railroads  for  use  of,   347 

toll  chargio  ii.,   ^< 
height   of. — 

over  river  at  low  water  mark,  348 

change  of,  348 
over   streets,  etc.,  346 
lighting  of,  in  municipalities.      (See  Municipal  Corporations.) 
power   of  congress  over;    withdrawal   of  assent   to,   346 


INDEX. 

(References    are   to    pages.) 

BRIDGE  COMPANIES  — OVEB  OHIO  RIVER— Continued. 
railway    tracks    on,    :;I7 
site  of,  appropriation  or  purchase  of,   346 

spans  of — length   of;    change  of,   348 
streets,  roads,   avenues,   etc.,   used    for,   346 

piers  <>r  obstructions  in,  consent  of  authorities  U  aeoi      •<      347 

Capital  stock  of,   subscriptions    to, — 

private  corporations  may  make,   when,  ^47 

railroad    company    may    make,    when,   347 
Consolidation, — 

laws   as    to    railroads   apply    to,   347 

powers  of,  upon,  347,  348 

what  companies  may  consolidate,  347 
Directors  of,  duties  and  powers  as  to  sale,  etc.,  of  bonds,  aotes,  e,tc.,  317.  201 
Ferries,    companies   may   purchase,   etc.,    348 

location   of,  348 

rates  of  ferriage  controlled   by  authorities,    348 
Franchises  of  —  mortgage  of,  347 

pass   under   foreclosure  of    mortgage,    when,    347 
Liability   of  for   injuries  io  private    property,    347 

statute  of   limitations   as   to,    347 
Mortgages  of  —  may  include  what.  347 

sale   under,    passes    what,    347 
Powers  of,  340 

to  borrow  money,   348,   150 
purposes   for  which,   34S 
Real  estate  —  may  hold  in  fee  or  otherwise,  346,  347 
Sections   3256,   3290   apply   to,    348,   347 
Securities,   notes,   etc.,   of.      (See   Bonds  —  CORPORATE.) 

BROKER. 

Compensation   of,   for   selling  bonds,   150 

BUILDING   COMPANIES    (COMPANIES   TO  CON-TIM  CT.) 
For  hotels,  storerooms,  offices,  factories,  etc.,  573 
cannot  deal  in  real  estate,  573 

power  to  acquire,  lease,  hold,  etc.,  real  and  personal   property,  573 
consent  of  stockholders  necessary,  when,   573 
meeting   of   stockholders   to   authorize,   573 
notice  of,   573 
For   lodge,  chapel,  etc.,  purposes, — 

corporations  not  having  capital  stock  may  hold  stock  in,  when.  395 
elect  directors,   etc.,  when,  395 
liability  of,  as  stockholders,   395 
BUILDING  AND  LOAN  ASSOCIATIONS.      (See  Savings  and  Loan   COMPANIES.) 
Are  corporations  for  profit,   o52 
Attorney  of  — bond  of,  not  an  official  bond,  557 
liability  of;   penalties  against,   562 
not  an  officer,  557 
Auditing  committee,  duty  as  to  report  to  inspector,  560 
Bank   book,    treasurer's;    inspection   of.    557 
Banking  powers,  exercise  of, — 

advancing  money  to  members  is  not,  557 
not  authorized;  no  power  to,  555. 
Bonds  of  officers,  557 

additional   sureties,  557 

directors  not  eligible  as  sureties.  557 

liability  for  neglect  as  to,  557 
renewal    of,   557 
Borrowing  member,  who  is,  556 
Borrowing  money,  power  of,  554 

evidences  of  indebtedness  for,  554 
limitations   upon,   554 
purposes  for  which  authorized,  554 
Books  and  papers  of, — 

examiners  may  have  access  to  and  compel  producticr  o*    ■<>■ 
false  entries,   etc.,   in;    penalty,    562 
Bureau  of.      (See  "Inspector  of,"  below.) 

establishment   of,    559 
By-law?,   etc.      (See  "Constitution."  below.) 
amendment  of:   limitations,   etc.,   556 
certified  copy  of,  filed  with  inspector,  56C 


730  INDEX. 

(References  are  to  pages.) 
BUILDING  AND  LOAN  ASSOCIATIONS  —  Continued, 
directors  adopt,  55G 
proof    of   adoption   of,    556 
provide   as   to  —  consolidations.    5G3 

dissolution,  time  and  terms  of,  5G3 
dividends,    556,    558 
issuing  stock  to  members,  552 
loans  to  members,  depositors,  etc.,  555 
withdrawal    of  dues,   554 
Cancellations.      (See    "Capital    stock,    shares    of";    "  mortgages"    below.) 
Capital   stock  of, — 

amount   of   in   articles  refers   to   authorized   capital,   552 
dues  and  payments  upon,  552,  595 
increase  and  decrease  of,  556 

certificate  of  tiled   with   secretary  of  state.   556 

fee    for   filing.    9 
directors   may   make,   556 
shares  of  — ■  cancellation  and  reissue  of,  554 

certificate  of,  terms  and  conditions  of  issuing,  552 

minors  may  hold,  etc.,  554 

number  of,  held  and  voted  by  one  person,  552 

taking  in  name  of  another,   552 
par  value  of,   increase  or  decrease  of,   556 

certificate   of,    filed  with    secretary    of  state,   556 
taxation  of,  55S 

voting  power  of,  limitations  as  to,  552 
withdrawal   of,   554 
subscriptions  to, — 

amount  of,  before  commencing  business,   552 
corporation  may  make,    109 
transfer  of. — - 

fees  for,  equitable  not  chargeable  with,   552 
injunction  to  prevent,  552 
Charter,   revocation  of,   for   illegal   practices,   561 

attorney-general   brings    proceedings    for,    when,    561 
duty    cf    inspector    as    to,    561 
notice  to  association  before,  561 
Checks  of.      (See  "Funds,"  below.) 
Committees  of.   liabilities  of;    penalties   against,   562 
Compromises,  power  to  make,   554 

Consolidation,  constitution  and  by-laws  provide  for,  563 
Constitution  of.      (See  "  By -laics,  etc."  above.) 
amendments  to,   effect  on  contracts,   556 
legality  of,  estoppel  to   deny,  557 
members   adopt,    556 
Contingent  fund.      (See  "Reserve  fund,"  below.) 
Definition  of,   551 
Deposits  and  interest  on,  552 
Depositors  —  rights  of,   552 

who  are.   555 
Directors   of, — 

duties  and  powers  of  as  to  —  adopting  by-laws.   556 
authorizing  checks,  557 

designating   bank    for   deposit    of   funds.    557 

increase  or  decrease  of  capital  stock,  par  value  of  shares,  etc.,  556 
inspection  of  treasurer's  bank  book,   557 
reports   to    inspector,    560 
liability    of;    penalties,    562 

for  neglect  as  to  bonds  of  officers.  557 
not  eligible  as  bondsmen   of   officers,   557 
term  of,  552 
Dissolution   of,   powers  as   to,   556 

attorney-general  to  institute   proceedings   for,    when.   561 
constitution   and  bydaws  provide  as  to,  563 
duty  of   inspector  as  to,   561 
sale  of  mortgages,   securities,  etc.,   upon.   563 
vote  of  members  as  to,  5 "6 
Dividends  —  constitution  and  by-laws   provide   as  to,   558 
declaring  cr  voting  for  greater  than  earned,  562 
earnings   transferred   to,   when,   558 
payment   of  —  estoppel   of  borrowing  members   as  to,   558 


INDIA  781 

(References  arc  to  p 
BUILDING  AND  LOAN  ASSOCIATIONS       <  ontinued. 
time  and  manner  of,  558 
power  to  make,  556,  558 
rights  of  withdrawing   members   to,   554 
Doing   business   contrary   to   lawj    penalty,   562 

aiding  or  assisting  in;   penalty,  562 
Domestic,  what  are,  551 
Dues  —  are  payments  on   stock.   :>.">:;.  595 
in   insolvent   associations,  553 
payment  of.     (Sec   "payments,"   below.) 
power  to  assess  and  i  ollect,  552 
withdrawal  of,  551 

by-laws,  etc.,  may  provide  as   to,  554 

notice   of,   ell'ect    of,    554 

does  not   save   from   liability   for   losses, 
payment  of  mortgage  by  means  of,  554 
rights  and   liabilities  of   members   upon,   554 

moneys  unlawfully  paid  to,  as  treasurer  may  be  sel  off  ag 
Earnings  —  expenses  paid  from,  558 

transferred   to   dividends,    when,    558 
Examinations   of,    by   inspector.   566,   561 

appointment  and  powers  of  examiners,  559,  5UU 
expenses  of,  500 
made   when,   560 
publication  of  results  of,  560 
Fees  for  filing  —  articles  of  incorporation,  9 
certificate   of  increase  of  capital    stock.   9 

in  case  of  foreign  corporations.      (See  "Foreign   corporations"   below.) 
Fines. — 

power  to  assess  and  collect,  552,  55.3 
for    default  of   interest,  none.    553 
only  one  for  same  default,  553 
up  to  what  time,  553 
security  for  payment  of,  may  be  taken.  553 
Foreign. — 

authority  to  do  business,  559 

application   for,    fees   for   filing.   561 
cancellation  of  —  causes  for.   561 

duty  and  power   of  inspector  as  to,  501 
notice  of,  mailing  and  publication  of,  561 
unlawful   to   do  business   after.   561 
certificate  of  and  renewal  —  inspector  grants,  when,  560 
fees  for,  561 
what    necessary   before  granting. — 

appointment  of  inspector  as  attorney  for  service  of  process,  559 
deposit   with    state   treasurer  or   inspector,   559 
filing  of  charter,  constitution,   by-laws   with   inspector,   559 
deposit  with   state  treasurer  or   inspector,   12,   559 
action  to  collect  claim  payable  from,  38 
amount  and   nature   of.    559 
deposited  with   state  treasurer,   562 
delivered  up   only  on  order   of   inspector.  562 
exchange   of  securities.  560 
interest  on  securities,  560 
liability  of.   for  claims,   560 

release  of  securities   upon   ceasing   to   do  business.   566 
laws  governing  domestic  associations  apply  bo,  559 
penalties  for  doing  business  contrary   to   provisions  as  to,  562 
sections  148c;   148d  do  not  apply  to.   11.    ]•_' 
service  of  process  upon.   550 

inspector,    attorney    for,    559 

must  mail  to  home   office.   559 
what  are.   551 
Funds  of — bank  for  deposit  of,  designation.  557 

checks  withdrawing  —  directors  must   authorize,   557 

signed  by  whom.  557 
embezzlement,   misappropriation,  etc..   of:    penalties,   562 
Inspector  of.   559 

appointment  of.  as  attorney  for  foreign,  for  service  of  process,  550 
bond  of.  559 

approval   of,  by  governor  endorsed.   559 


732  INDEX. 

(References   are   to   pages.) 
BUILDING  AND  LOAN  ASSOCIATIONS  —  Continued, 
filed  with  secretary  of  state,  559 
clerks   and   examiners  —  appointment   by,    559,    560 

compensation  and  names  of,  report  to  legislature  to   show,   563 
compensation  of,  559 

as  supervisor  of  bond  and  investment  companies,  520 
deputy  —  appointment    and   duties,    559 

compensation  of,  559 
duties    and    powers    of.    559 

as  to  examination  of  association,   560,   561 
of  foreign  associations,  559,  560 
expenses  of,  report  to  legislature  must  show,  563 
fees  of,  561,  562 

for  certifying  papers  under  seal,  562 

copies  of  papers,  561,  562 
in  case   of  foreign   associations,   561 
paid  into   state   treasury,  562 
income,   amount  and  source,  report  to  legislature  to  show,   563 
is  supervisor  of  bond   and  investment  companies,   520 
oath   of  office,   indorsed  on  bond,   559 
offices  of,   559 

record   of  proceedings  of,   to   be   kept,   563 
report  of,  to  legislature,   563 
superintendent  of  insurance  is,  ex  officio,  559 
Interest  —  on   deposits,   552 

on  loans  —  exemption  from  usury  laws  unconstitutional,  552 
power  to  collect,   552 
what  is  not  usury  in,  553 
when  in  hands  of  receiver,  553 
on    premiums,    not   authorized,    553 
Loans  —  cancellation  of,  terms  of,  etc.,  555 

expense  of,  not  current  expenses,  when,  558 
interest  on.      (See  "Interest,"  above.) 
made  to  whom;   not  to  non-members,  555 

refusal  to  make   to  members,   555 
premiums  on.      ( See  "  Premiums,"  below. ) 
purpose  of;  inquiry  as  to  not  required,  555 
Losses, — 

assessment  of,  upon  members,  basis  and  rule  for,  558 
liability  for,  notice  of  withdrawal  does  not  exempt  from,  558 
mortgage  not  satisfied  until  pro-rating  of,  558 
payment  of.   from  reserved  fund,   557 

rights  and  liabilities  of  withdrawing  members  as  to,  554 
Members  of  —  assessment  of  losses  against,  558 
borrowing,  who  are,  556 
compromise  with,  power  to  make,  554 
Minors  may  hold  stock  in,  554 

receipt  of,  valid  acquittance,  when,  554 
Money,  etc., —  order,   etc.,   for,  signing  without  power  of  attorney  of  payee,   562 

unauthorized  receiving,  in  name  of  association,  562 
Mortgages  of.      (See  "Loans,"  above.) 

amendment  of  constitution  and  by-laws,   effect  on,  556 
assignment  of,  after  petition  for  dissolution,  596 
attorney's  fee,   in   absence   of  default,   553 
foreclosure  of  —  computation  and  distribution  upon,  555 
decree  for,  confined  to  what  amount,  555 
suit  for,  prematurely  brought,  555 
payment  of,  by  withdrawal  claims,  554 
sale  and   transfer  of,    upon  dissolution,   563 
satisfaction   of,   losses   must  be   pro-rated   before,    558 
taxes  on  property  in,  rights  of  association,  555 
unauthorized    assignment,    cancellation,    etc.,    of.    562 
Notes,  drafts,  etc.,  of,  Unauthorized  assignment,  cancellation,   etc.,  of,  562 
Officers   of  —  bonds   of.      (See   "Bonds,"   above.) 

liability  of;   penalties,  562 
Organization  of  —  is  under  general  corporation  law,  551 
Payments    tc. — 

controversy  as  to,  burden  of  proof,  554 

default  in  —  stoppage  of,   is  not,   when.  554 

made  how;   in  what,  553 

of  dues   in  company  in  liquidation,  not  required,   when,  595 


INDEX.  733 

(References    are    to    pages.) 

BUILDING  AND  LOAN  ASSOCIATIONS  —  Contii I. 

time  and  place  of,  553 

Penalties   for  violating  provisions  as   to,   562 
Personal  property  —  power   to  acquire,  bold,  etc.,  554 

sale  and  transfer  of,  upon  dissolution,  •">•>- 
Powers  of,  551-557 

constitution   and    by-laws   provide   for   exercise    of,    .V>ii 

none   to  do   general   banking   business,   555 
Premiums   on  loans  —  are   not   usurious,   553 

cannot   be   collected   when,    553 

extortionate,   553 

how  fixed  under  old  law,  553 

interest  on,  not  authorized,   553 

power  to  assess,  and  collect,   552 
President  of, — 

certificate  of  increase  or  decrease  of  capital  stock,  etc.,  made  by,  556 

checks   signed   by,   when,    557 

liability  of;   penalties,  502 
Real  estate,  power  to  hold,  etc.,  554 

cannot  buy  for  purpose  of  allotment,   554 

sale  and  transfer  of,  upon  dissolution,  563 
Receiver  for.      (See  Receivers.) 

directors  cannot  apply   for,   when,   588 
Reports    of  —  attestation    and    oath    to,    560 

exemption  from  provisions  of  "Willis  Law,"  20 

failing  to  make ;   penalty,  562 

false,  making  or  certifying,   562 

fees  of  inspector  for  filing,  561 

filed  when  and  as  of  what  date,  560 
with  inspector,  560 

form   of,   inspector   prescribes,   560 

must  show  what,  560 

posting   and   publication   of,    560 

provisions  regulating,   of  banks    do  not  apply   to,   509 
Reserve    fund  —  amount    of,    557 

losses  to  be  paid  from,  557 

power  to  accumulate,  invest,  etc.,  556 

purpose  of,   556 

who  interested  in,  558 
Secretary  of, — 

certificate  of  increase  or  decrease  of  capital  stock,  etc.,  made  by,  556 

checks  signed  by,  when,  557 

duty  of,  as  to  reports  to  inspector,  560 

liability  of;    penalties,   562 
Stockholders.      (See  "Members"  above.) 
Taxation   of  —  shares   and  loans   of  borrowing  members  exempt,   558 

shares   of  non-borrowing  members   must  be    listed,   558 
Treasurer  —  bank  book  of ;   directors  may  inspect,  557 

deposit   of   funds    in   hank   by,    557 

liability  of;    penalties,   562 
Withdrawals.      (See   "Dues"    above.) 
BURGLARY.      (See  Insurance  Co.'s  —  Burglary,  Etc.) 
BURIAL  GROUNDS.      (See  Cemetery  Associations.) 
BUSINESS. 

Authority  to  do.      (See  Foreign  Corporation.) 
Banking.      (See  Banks,  etc.) 
Discontinuance.      (See  Dissolution.) 
Insurance.      (See   Insurance.) 
Of  corporations.      (See  Corporations.) 
Place  of.      (See  Place  of  Business.) 
BY-LAWS.      (See   Regulation's ;    see,   also,   under   respective    companies.) 
Adoption   of  —  by   custom,    136 

denial   of,  estoppel  to   make,    136 

directors   or   trustees   make,    136 

approval   or  rejection   of,  by   other  authority,    136 

stockholders  of  corporations  limiting  votes  of  stockholders  make  as  to  distribution 
of  earnings,  121 

unanimously,  effect  of,  136 
Amendment,  etc.,  of,  137 

form    of   by-laws  permitting,   672 


734  INDEX. 

(References   are   to   pages.) 
BY-LAWS  —  Continued. 
Construction  of,  136 
Forms  for,  672 

as  to  compensation  of  officers,  672 

directors,  meetings  of;   quorum,  etc.,  672 
Must  be  reasonable,   136 

Prohibiting  transfer  of  stock  paid  for  by  notes  and  mortgage,  effect  of,  146 
Proof  of,   137 
Signing,  effect  of,   137 
Violating  the   constitution  are   void.    136 
"What  may  or  may   not  be   regulated   by, — 

amount  of  stock  to  be  held  by  directors   and  officers,   128 

assertion  by  members  of  their  rights  in  courts,   136 

corporate   existence;    limiting,   136 

distribution    of    net    earnings    among    workmen,    by    corporations    limiting    vote    of 

stockholders,    121 
expulsion    of   members,    136 
terms  of  office,  123,  135 

incorporators,  trustees,  etc.,  cannot  make  their  positions  perpetual,  124,  135 
transfer  of  stock,    135 
treasurer,  duties,  etc.,    136 
CABLE  RAILWAYS.      (See  Street  Railways;  Railroads.) 

Unlawful   meddling  with,   etc.,   cars,   switches,   property,   etc.,  of,   636 

CANALS. 

Mechanics'   lien   on.      (See   Mechanics'   I.iexs.) 

Railroad   bridges  over.      (See  Railroads.) 

Use  of  banks  of,   for  railroads,   180 
CANAL  COMPANIES.     (See  Ship  Canal  Companies.) 

Appropriation  of  property  of,  by  railroad,  185 
CANAL  OR  SLACK  WATER  NAVIGATION  COMPANIES. 

Returns  of,  for  taxation,  56 

CANAL  LANDS. 

Sale  of,  to  railroads,   185 
CAPITAL   STOCK.      (See,   also,   under   respective   companies.) 
Advertising  greater,  than  subscribed  and   paid  in.    170 
Account  of  to  accompany  petition  for  voluntary  dissolution,  594 
Amount  of, — 

held  by  directors  and  officers,   by-laws  fix,   128 
issued  and  outstanding,  reports  to  secretary  of  state  to  give, — 
in  case  of  corporation  for  profit,   17 
foreign  corporations,   18 
must  be  stated  in, — 

articles  of  incorporation,  96 
form  for  stating,  645 

must  be  clearly  stated;   effect  of  error,  98 
reports   to   secretary  of   state  —  in   case   of  corporation  for  profit,    17 
in   case   of    foreign   corporations,    10,    12,    18 
paid    in, — 

corporate  existence  depends  upon,    102 
must  be  stated  in, — 

reports   of  —  companies   limiting  votes   of   stockholders,    121 
corporations  for  profit.   17 
foreign    corporations,    18 
subscribed  —  reports  to  secretary  of  state  to  give. — 
in  case  of  corporations  for  profit,   17 
foreign  corporations,  18 
Certificates  of.      ("See  ''shares  of,"  below.) 
Common   stock, — 

bonds  may  be   converted  into,  when,    151,    152 
converted   into  preferred.    94 
corporations   for   profit   may   have,   94,    96 
taxation  of  —  no   distinction  between  preferred   and.   60 
Corporations. — 

for   profit  must  have,   94,    96 
not  for  profit  may  have,  95 
powers  to  deal  in,  hold,  :lc,  its  own,  109,  110 

power  to  invest  in,  subscribe  for,  hold,  etc..  in  other  companies.  109.  150 
in  case  of  corporations  not  having  capital  stock ;  in  hall.  etc..  Cos,  395 
Decrease  of.      (See  "Reduction  of,"  below.) 


INDEX. 

(References  arc  to  i 
CAPITAL  STOCK  —  Continued. 

Deposit    of  fidelity  guaranty  companies   with   Bupt.  of  in-,   maj    be   in,    Alien,  413,  411 

of  title  guaranty  companies  s\ 1 1 1 1  state  trea  urer  may   \»-  in,  515,   ill 
Dividends  on.     (See  Dividends.) 

Division   of,  among  stockholders,    power   of  directors,    as   to,    132 
Endowment   stock,   96 
Increase  of  —  amendment    to  articles   cannot    make,    L02 

assent  of  stockholders  necessary  in  case  of   preferred  stock,   L66 
certificate  of  —  fees   for   filing,   9 

filed    with   secretary   of   state,    160 
in   case  of   preferred   Btock,   166 
corporations  for  profit  may  make,  when,    L65,    Hit; 

consent  of  all  subscribers  necessary  before  organization,    Hi") 
corporations  not  for   profit    may    make,  when,    I0.~> 

consent  of  all   subscribers  necessary    before  organization,   105 
distribution  of  among  stockholders.    166 
irregularities  in  proceedings   for,  effect   of,    l">ti.  208 
may  be  common  or  preferred,  Kit! 

part  preferred  and  part  common  not  authorized,   166 
meeting  of  stockholders   for,    L65 
directors  must  call,    105 

notice   of   time,   place   and   objects   of;    waiver,   etc.,    105 
vote  required,    165 
premiums  on  sale  of  —  belong  to  existing  stockholders,  when,  1  •  i * ; 

not  subject  to  dividend  tax.,  when.  106 
rights  when  whole  not  taken,    100 
under  acts  of  1854,    1805,   106 

stockholders'  liability   on,    157 
what  does  not  constitute,  106,  208 
Issuing  of.      (See  "shares  of,"  below.) 
Lien  on.      (See  '"shares  of"  below.) 
Limitations  on  amount  held,   in  certain   eases,    121 

purposes  of;  evasions,  122 
Meaning  of,   as  relates  to  taxation,   59 
Of    foreign    corporation.      (See    Foreign    Corporations.) 
Ownership,    evidence    of,   at    elections,    122 
Pledged  as  collateral — agreement  to  pledge,  effect  of.  149 
attachment  of,    149 

contemporaneous  contract  for  conditional   sale   of,    149 
recovery   of,    fraudulently   acquired,    149 
taxation  of,   60 
Preferred    stock, — 

amount  of,   limitations  as  to,   96 
articles  —  provision   for  in,   form   for,    046 
bonds  may  be  converted  into,  when,   152 
certificates  of,  form  for,  073,  674 
construed   as   a  loan,   when,   95,    152 
contract   giving  veto   power   to,   effect   of,   152 
conversion  of  —  into  common  stock,  94 
corporations  for  profit  may  have,  94,  96,  106 
stockholders   may  agree  to  issue  of,    106 
unissued  stock  may  be  made  preferred.  95,    100 
dividends   on.      (See  Dividends.) 

increase  of  stock  may  be  in.      (See  "Increase  of,"  above.) 
liability  of  holders  of.  as  stockholders,    15:; 
limitation  of   voting  power   of,   95 
redemption   of,  authorized,   96 
regulations  as  to  voting  power,  etc.,   96 
security   of  —  lien    on  property    and    earnings,    95 
taxation  of,   no  distinction   between  common   and,  00 
Record  of,  142  ' 

Reduction  of  —  amendment  to  articles   cannot,  make,    102 
certificate  of  —  fees  for  tiling,  9 

tiled   with    secretary    of    state,    107 
consent    of   stockholders    necessary,    100.    107 
directors  may  make,  when,   100 
effect  of,  upon  rights  of  creditors,   167 
purchase  of  shares  by  corporation  is  not,  when,   1G7 
stock  certificates  issued  upon,   167 
Shares  of. — 

are    personal    property,    147 


736  INDEX. 

(References   are   to   pages.) 

CAPITAL  STOCK  —  Continued. 

subject  to   levy    and   execution,    147,    149 
assignment  for  benefit  of  creditors  includes,  147 
attachment   of,   when,    149 
by  the  corporation,   i49 
effect  upon   dividends,    149 
in  case  of  foreign  corporations,  149 

owner  being  non-resident,   16 
interest  reached  by,   149 
situs  of,  for  purposes  of,  149 
bequest  of  dividends  includes,  when,  148 
borrowed  stock,  return  of,   etc.,   147 
certificates  of.      (See,  also,  "Transfer  of,"  below.) 

assignee  of  delinquent  subscriber  entitled  to,  when,  145 
assignment — in  blank,   143 

with  notice  of  previous  assignment,  143 
execution  of,  by  president  and  secretary,   142,   143 
failure  to  issue,  effect  on  stockholder's  liability,   157 
forms  for,  etc.,   673,  674 

genuineness  of,  duty  of  purchaser  as  to,   144 
issuing  of  —  duty  and  liability  of  company  as  to,  142,   143 
invalidity  of,  as  defense  to  stock  subscription,   141 
new  —  outstanding    certificate   must   be   surrendered,    143 
remedy  for  refusal,   145 

upon  reduction  of  capital,  or  par  value,   167 
powers   of    president   and   secretary   as   to,    127,    142,    143 
to  qualify  director,    128,   129 
lost  or  destroyed  —  dividends  on,  146,  147 

re-issuing  of  —  action  for;  parties,  petition,  findings,  etc.,  146 
form   for  regulations  as  to,   669 
mandamus    lies    to   compel,   when,    147 
rights  of  original  holders,  146,   147 

of   pledgee,    147 
when  company  is  owner  or  holder,  147 
must  show  what,   142 
represent  what,    147 
scrip,  taxation  of,  60 

spurious,  action  to  annul  and  cancel,  144 
stockholders   entitled   to,   142 

persons  may  become,  without    144 
validity  of  —  presumptions  as  to:   proof  of  invalidity,   144 
equitable  owner  of  —  action  against,  to  collect  stock  subscription,  141 

action  by,   against   directors,    133 
equitable  title  to,  effect  of,  etc.,  143.  145 
foreign  corporation  dealing  in  cannot  do  business,   17 
legal   owner  of,  who  is;  rights  of,  143 

presumption  of  gift,  when,   147 
lien  on, — 

corporations  have,  when;   enforcement  of,   109,   148 
custom  to  certify  as  to,  effect  of,  148 
effect  of,  upon  transfer,  144 
form   for  regulations,   securing,   670 
for  sale  of  stock  to  satisfy,  670 
number   of, — 

held  by  each  stockholder  —  reports,  returns,  etc..  must  show, — 

in  case  of  companies  limiting  votes  of  stockholders,   121 
increase   of,    made   when,    165 

certificate  of,  filed  with  secretary  of  state,  166 
consent  of  subscribers   necessary  before  organization,    165 
meeting  of  stockholders  for;   notice  of;    waiver,  etc.,    165 
vote  necessary  for,   165 
must   be  shown   in, — 

articles    of   incorporation,   96 
form    for    stating,    645 

must  be   clearly  stated ;   effect  of  error,   98 
reports  of  foreign  corporations,  10 
par  value  of  —  form  for  stating  in  articles,  645,  646 

must  be  shown  in  reports  of  foreign  corporations.  10 

in  reports  to  secretary  of  state  by  corporations  for  profit,   17 
by  foreign  corporations.  18 
reduction   of  —  certificate  of,  filed  with  secretary  of  state.   167 


INDEX.  m 

(References  are  to  i>.ikcs.) 
CAPITAL  STOCK  —  Continued. 

consenl   of  Btockholdere  necessary,    L66 

directors  may  make,    Itili 

effect  of,  upon  rights  of  creditors,  L67 

purchase  of  shares  by  corporation  i-  not,  when,   107 

stock  certificates  issued  upon,  L0] 
pledgee  of  —  action  by,  for  negligence  and  mismanagement,   L32 
interest   held  by,  is  what,   1  is 
rights    and    duties    of, — 

as  to  jury  trial   upon  foreclosure  of   lien,   I  pi 

as  to  reissue  of  losf  or  destroyed  certificate,    L48 

Upon    sail',   etc..    I  is 

pledgor  of,  estopped  to  assert  title,  when,   I  is 
sale  of, — 

below  par  —  liability   of   holders  of.    111.    153 
by  executor,   pledgee,   stockholder,    143,    147.   148 
contract  for  —  actions  on;  evidence,   lis 
refusal  of  performance;  remedy.  148 
evidence  as  to,    148 

illegal,  when;   measure  of  damages  for.    lis 
power  of,  does  not  include  power  to  exchange,  148 
to  enforce  stock  subscriptions,  137 
form   of  notice   of,    07 ':'. 
scrip  certificates,  taxation  of,  GO 
situs  of,  for  purposes  of  legal  process.   140 
transfer  of —  (see  also  "certificates  "I"  above.) 

agreement   for,   imports   valuable   consideration,    148 
books  for,  142 

effect  and  evidence  of  entries   in.    156 
by-laws  regulating,  135 

prohibiting,  when  paid  by  note  and  mortgage,  effect  of,  146 
dividends  cannot  be  reserved   in.    14.!.    169 
effect  of  —  upon  stockholders'  liability     155,    156 

upon   stock   subscriptions,    140 
equitable  title  in,  effect  of:  how  made.  etc..  143.   1  15 
executor,   powers  of,   as  to,   143 

in  ease  of  deceased  stockholder,   duty  of  officers,  145 
lien  of  company  on  stock,  effect  of.  as  to.   144 
limitation  of  time,   as  to,   145,   146 
lis  jn  mli  iis,  effect  on,    144 
made    to  —  fictitious    persons,    143.    155.    158 
trustees,   143 

president  and  secretary,  powers  of.  as  to.    127.    142,   143 
proof  of  genuineness,   identity,  etc.,    1!!.   145 
record  of,  to  be  kept.   142,   144 
refusal  to  make,   144.   145 

measure   of  damages    for,    145 
remedy  for,   145 

in   ease  of  assignee  of  delinquent  subscriber,   145 
corporation,  146 
equitable  owner,    145 
pledgee  of  stock,    145 
joinder  of  actions,  in.   145 
transferrer  necessary   party   when,    146 
when  owned  by  state,  144 
unissued  —  company   may   sell.    when.    116 
may   be   made  preferred    stuck.    166 
power  of  directors  as  to  sale,   12!) 
void    or  illegal,    not    taxable,    GO 
voting  power  of.    120.   121 

articles  of  incorporation,  form  for  limitation  of,  in,  6G6 

cumulative  voting,    120 

form  for  regulations  as  to.  669 

limitations  upon,  of  preferred  stock,  95 

owner  of  legal  title  has,  143 

when  delinquent.    120 

held   by  company,   120 
pledged  by  company.   120 
Stock  dividends  are  not,  when,  169 
Subscriptions  to. — 

alteration  of  terms  of.  etc..  effect  upon  collection,  139.  142 


738  INDEX. 

(References   are   to   pages.) 
CAPITAL  STOCK  —  Continued. 

amount    required  before  organization,    118 
conditional,  not  counted,   118 
'•liability  of  directors  acting  before,   119 
subscription  of,  essential  to  organization,  119 
books  for  —  form  of,  664 
must  be  kept,   142 
opening  of;   notice  of,  waiver,  etc.,   115 

forms  for  notice  of,  waiver  of  notice,  and  order  for,  663,  664 
cancellation,  revocation  or  rescission  of,  116,   139 

defense  to  enforcement  —  of  stockholders'   liability,  when,   157 

of  stock  subscription,  when,   142 
for  mistake,  139 
certificate  of  —  fees  for  filing,  10 
form  of,  665 

incorporators  to  make,  118 
conditional  —  action  to  enforce,  pleadings  in,  138 
become  absolute,  when,  116,  117 
calls  for  payment  of.  117 
construction  of,   117 

contrary  to  public  policy,  what  are,  116 
defenses  and  remedies,   168 
validity  and  effect  of,  116,  117 
conditions  as  to,  116,   117 

statutes  form  a  part  of,  116 
verbal,  effect  of,    116 
waiver  of,   117 
constr uction  of,  117 
corporate  existence  depends   upon,   102 

corporations,  power  of,  to  make.      (See  "Corporations"  above.) 
delivery   of,   proof  of,   1 16 

effect  upon,  of  —  change  of  route,  139,  178.   179,  180 
consolidation,  269 
transfer  of  stock,   140 
forfeiture  of  payments  on.      (See  "Payments  of"  below.) 
interest  on,  by  company,  payable  only  from  profits,   116 
made  but  not  to  be  paid,   liability  on,    142 
may  be  on  separate  sheets,   116 
misnomer  of  payee  in,  effect  of.  139 
payment  of.   117.   118,   137 

by  assignee  of  stock;  his  rights,  145 

calls  for  —  before  complete  organization.   13S 

before  required  stock  is  fully  subscribed,   118,  119 

form  for  regulations  governing,  670 

on  conditional  subscriptions,  118 

pending   consolidation,    118,    269 

waiver_of  right  to  have  statutory  amount  subscribed,   118 

of  right  to  make,    118 
when  company  is  insolvent,  118,  140 
when  demand  notes  have  been  given,   118 
enforcement  of,  137,  140,  141,  142 

against  whom,  137,  140,  141,  142 
by  company  by  suit  or  sale  of  stock,  137,  138,  139 
creditors.   140,    141,    142 
receiver  of  insolvent  company,  141 
upon  dissolution,   139 
defenses  in  action  for, — 

abandonment  of  work,  etc.,  139 

agreement  as  to  liability  of  stockholders,  142 

to  pay  in  property.   141 
alteration   of   subscription,    139,    142 
amendment  to   charter,   139 
cancellation  of  subscription,  142 

change  of  termini,  route,  etc.,  of  improvement,  139.  1,8,  1,  J,  181 
changing  nature  and  character  of  stock,  139 
failure  to  pay  required  first  installment.  139 
former  judgment,  140 
fraud\  139,  141 

illegality  of  incorporation  of  company,   142 
invalidity  of  stock  issue.  141 
liability 'of  company  to  forfeiture  of  charter,  139 


INDEX. 

(Refer 
CAPITAL  STOCK  — Continued. 

aotice  to  de  facto  company  to  terminate  liability,  1  \2 
inil  in  l  corporal ions,   140 
ouster  of  de  facto  corporal  ion,    1  \i 
plaintiff's  capai  ii  \    to  sue,   I  1 1 
stock  standing  in  name  of  anol  hei ,   111 
subscription  nol   intended  to  be  paid,   l  12 
righl  in,  .;,  cine-  u  hen,  138 
set  offs,  righl   to,  I  10,   I  tl 
waiver  of  statutory  provisions  ae  to,    138 
first,   installment  —  amount   of;    paid,   when,    117 

incorporators    liable    unl  il    paid,    i  is 
forfeiture  of,  power  of  company  to  declare,   L38 
made  —  by  note-,  effeci   of,    138 
in   properly.    1  Hi.    138,    I  1 1 
where   and    to    u  liom.    1 18 
record  of,  to  be  kept,  142.   Ill 
sale  or  transfer  of  to  another  company,    176,  205 
signing  name  of  another  to,  liability  for,   138 
unpaid  —  must    be  listed    for  taxation,  56 

to  be  collected  before  enforcement   of  liability  of  director-,  trustees,  officers  <r 
stockholders,  L59 
verbal  not  binding,  11G 
Taxation  of.      (See   TAXATION.) 
Unissued.      (See  "Shares  of"  above.) 
Voting    power    of.      (See    "Khans    of"    above.) 

CARS.     (See  Equipment  (B.  R.)  Companies:.  Railroads  :  Stkili    Railway  Companies 
CARRIAGES. 

Law  of  road  as  to;  turn  to  right,  334 
Rates  of  toll   for  —  over  toll  bridges,  34G 
over  turnpike  or  piank  roads,  331 
CASHIER.      (See    also    under    various    companies.) 

Garnishee  process  before  justice  of  peace  served  on,  when,  625 
Summons  against  corporation  served  on,   when,  5S2 
in  action  before  justice  of  peace,  623 

in  case  of  indictment  of  corporation,  639 
CATTLE.      (See  Live  Stock.) 

Rates  of  toll  for  —  over  toll  bridges,  346 

over  turnpikes  or  plank  roads,  331 
Shipping  of  from  southern  points, — 
disinfection  of  cars,  pens,  etc..  .">7."> 
penalties  for  violating  regulations  as  to.  575 

live  stock  commissioners  to  request  bringing  act  inn  for,  576 
prosecuting  attorney  brings  action  for.  when,  576 
proceedings  against  railroad  brought,  where,  576 
service  of  process  in.  57G 
regulations  as  to  unloading,  etc.,  575 
statement  in  shipping  bills  as  to  place  of  wintering,  ">7.") 
copy  of,  for  public  inspection,  576 
CATTLE  GUARDS.      (See  Railroad  Crossings.) 

CEMETERIES.      (See  Benevolent  Association  :  Cemetery  Associations:  Religious  A 

CIATIONS:    Schools.   COLLEGES,    ETC.) 
Agents,  etc.,  of,  police  powers  of.      (See  Policemen  for"  below.) 
Exemption  of,  from  dower,  execution,  partition,  taxation.  358 
Fare  to  municipal,  over  suburban  or  interurban  railways,   54 
Gardeners  of,  police  powers  of.      (See  "Policemen  for"  below.) 
Laws   for   protection   of.   violation  of,   a    misdemeanor,   359 
Location  of.  near  dwelling  houses.  .'!.->7 
Policemen  for  —  may  arrest  on  view.  when.   350 
oath  of.  who  may  administer,  etc.,   359 
powers  of;   within  what  territory,  etc.,  359 
who  may  act    as.  358 
Roads  or  highways  leading  to. — 

county  commissioners  may  purchase,  when,   358 

cost  paid  how:  repairs,  358 
railroad  crossings  to  be  above  or  below  grade  in  cities  of  1st  or  2d  class.  103 
private  cemeteries  not  included.    196 
Rules  and  regulations  as  to.  violation  of.  a  misdemeanor 


740  INDEX. 

(References   are   to   pages.) 
CEMETERIES  —  Continued. 

Superintendent  of,  police  powers  of.      (See  "Policemen  for''  above.) 
Watchmen  for  —  police  powers  of.      (See  "Policemen  for''   above.) 
who  may  appoint,  358 

CEMETERY  ASSOCIATIONS.      (See  Cemeteries.) 
Associations  holding  cemetery  lands  in  villages, — 
incorporated,  when,  360 
powers  of,  as  successors  of  association,  300 
rights  of  lot-owners,  360 
Debts  and  liabilities  of  —  limitations  upon,  357,  359 
purposes  for  which  contracted,  357 
sale  of  grounds  to  pay, — 
petition  for,  360 

final  decree  upon.  361 
notice  of  riling,  361 
proceeds  of,   applied  how,  361 
removal  of  dead  upon,  361 
Entrance  to  cemetery,  additional  land  for,  357 
application  to  county  commissioners  for,  357 

appraisers  of;   appointment,  duties,  report,  357 
appeal    from,   to   probate   court,   357 
chapter  4,  Title  6,  applies  to,  358 
title  vests  in,  upon  payment  of  appraisement,  357 
Gifts,  devises,  bequests,  etc. —  companies  may  accept.  360 
purposes  for  which  authorized,  360 

for  care,  etc.,  of  graves,  monuments,  etc.,  360 
Grounds  of.      (See  also  Religious  Associations:    Schools.  Colleges,  etc.) 
abandoned  or  discontinued,   sale  of.      (See  "Sale  of"  below.) 
buildings  upon,  company  may  erect,  358 
township  may  erect,  when.  38 

sinking  fund   for  constructing,  repairing,   etc.,  361 
discontinuance  of  use  of,  39 
notice  of,  39 

removal  and  re-ereetion  of  stones  and  monuments,  39 
re7noval  and  re-interment  of  bodies,  39 
enlarging,  improving,  etc.,   358 

sinking  fund  for,  361 
location  of,  near  dwelling  houses  forbidden,  when,  357 
lots   in, — 

exempt  from  attachment,  execution,  liens,  taxation,  etc.,  when,  39,  358 
numbered  how,   358 

o\\  ners.  rights  of.  upon  sale  of  grounds,  361 
regulations,  company  may  make  as  to,   358 
adorning,    erecting  monuments,   etc..    358 
disposing  of,  conveying,  etc.,   357 
purchase  of,  what  and  by  whom,  357 
used  for  interments  only,  358 
plat   of  —  filed,   etc..    with   county   recorder,    358 
removal  of  dead  from.      (See  Corpse.) 
sale  of  —  in  case  of  abandoned  or  discontinued.  39,  360 
in  counties  containing  cities  of  1st  or  2d  class,  359 
in  municipalities  prohibiting  interments,  360 
petition  for,  360 

final  decree  upon.  361 
notice  of  filing.  361 
possession  given,  when.  39 
proceeds   of,    applied   how.   361 
removal  of  dead  upon,  361 
Income  and  receipts  of.  application  of.  357 

in   counties    containing  city   of   first    class.   359 

not  to  be  divided  among  stockholders,  etc.,  359 
Monuments,  etc. —  sinking  fund  for  construction,   repair,  etc.,  of,  361 
Real  estate  — 

Appropriation  of.  for  purposes  of.  356.  357 

in  counties  containing  cities  of  1st  or  2d  class,  359 
what  lands  cannot  be  taken,  357 

not  applicable  to  certain  cemeteries  in  cities  of  1st  class,  1st  grade,  357 
on  which   are  dwelling  houses,  barns,   stables,   farm   buildings,    357 
mineral  or  medicinal  springs,  oil  wells,  salt  wells,  etc.,  357 
orchards  or  nurseries,  357 


IM)i;.\.  741 

(Refi  i 

CEMETERY  ASSOCIATIONS  —  Continued. 

appropriation  of  property  of,  not  permitted,  356 

in  counties  containing  cities  ol  Lsl  01  2d  class,  359 
assessments  against      enforced  bow,  356 

exemption  from  taxation  does  not  include, 
exempt  from  taxation,  when,  356 

in  counties  containing  cities  <>f   l-t  <>r  ii.  1  class, 
must  be  in  actual  use  as  cemetery,  359 
when  sold  musl  be  retiuned  to  count]   auditor  for  taxation, 
power  to  purchase,  appropriate,  bold,  etc.,  356 

in  counties  containing  cities  of  1st  or  2d  class,  359 
Report,  must  be  made  annually,  358 
Sexton  of,  penalty  for  permitting  corpse  nuisance,  •''.'» 
Sinking  fund  —  creation  of;  purpose,  361 
from  what   funds;   invested   bow,  - i < i  1 
loan  of,  to  members  of  board  forbidden,  36] 
Soldiers*  monumental   association,  company   may  ad    as,  358 
Soldiers*  monuments  —  companies  maj    take  charge  of,  'i58 
protection  of,  laws  as  to  cemeteries  apply  to,  358 

CERTIFICATE. 

As  to   various  matters.      (See  under  respective  titles.) 
Fees  for  filing  and  making  various.      (See  Fees.) 

CHAMBER  OF  COMMERCE. 

Buildings    and    grounds    for  —  bonds    for,    551 

companies   may   lease.,   purchase,   etc.,   551 

mortgage  of.  to  secure  money   borrowed   for,  551 
By-laws  may  provide   for, — 

committees  of  arbitration,  550 

officers  —  bonds;    election;   powers  and   duties;   terms  of  office   of,   550,  551 
Committees  of  arbitration,  provisions  as  to,  550 
Directors   of.      (See   "Officers''   below.) 

board  of,  number,  qualification,  etc.,  550 

elect  officers,  when,  550 
Existing  companies  may  adopt  provisions  as  to,  f).">  1 

certificate  as  to,   filed   with    secretary   of  state,   551 
Inspectors,  gaugers,   weighers,  etc.,   of. — 

certificates  of,  evidence,   when,  551 

considered  as  legally  appointed  officers,  551 

deputies,  power  to  appoint,  551 
bonds  of,   551 
principal   responsible  for  neglect   of.    551 

subject  to  provisions  as  to  legally   appointed  officers,  551 
Members  of  —  elect  officers  and  directors,  550 

relief  and  support  of  families  of  deceased,  550 

trial,  fine,  and  expulsion  of,  550 
Officers  of  —  bonds  of,  551 

consist  of  whom;   qualifications,   550 

election  and  term  of,  550 

oath  of  office,  who  may  administer,  551 

president,   secretary,    vice    president,   when.    551 

CHARGERS.      (See  Price  for  Service.) 

CHARITABLE  ASSOCIATIONS.      (See  Benevolent  Associations.) 

CHARITABLE    INSTITUTIONS. 

Duty  of  superintendent  of  certain,  as  to  bodies  of  deceased  inmates,  481,  482 

CHARITABLE   TRUST   COMPANIES. 
Articles  of  incorporation  of.   4S."> 

acknowledgment    of.    4v> 

filed  with   secretary  of  state,  485 

must  show  what.  4S5 
Attorney  general  may  bring  action  to  enforce  bequests,  etc..  when.  485,  4S6 
Constitution  and  by-laws, of.    1st; 
Directors  and  members  of.  4S5 

meetings  of,  held  where.  486 
Incorporators  of.  who  may  be,  485 
Name  of,  requirements  as  to.  4S5 
Officers  of:  election,  qualification,  etc..  of.  486 
Objects  and  purposo  of,  484 
CHARTER.      (See  Incorporation:   Special  Laws.) 


742  INDEX. 

(References  are  to  pages.) 

CHATTEL  MORTGAGE.     (See  Collateral  Loan  Companies:   Mortgages.) 

Proof  of   debt,  certificate  of  notary  may  cure  defects  in,    111 

Validity   of,   when   executed   without   directors'  knowledge,    151 
CHAUTAUQUA  ASSEMBLIES. 

Government  and  regulation  of  certain,   484 

CHILDREN. 

Cruelty  to,  or  neglect  of.      (See  Cruelty  to  Animals  and  Persons:   Humane  Socie- 
ties.) 
Employment    of,    under    certain   age, — 

attorney  to  prosecute  for  —  fees  paid  from  county  treasury,  466 

humane  society  or  its  agent  may  employ,  466 
costs  in  actions  to  enforce  provisions  as  to.  466 
certifying   to    county    auditor    when,    466 
county  auditor   issues   warrant   for,   when,   466 
in  advance  not  required  when.  466 
jurisdiction  of  justice,  mayor,  or  police  judge  in.  466 
jury  trial  before  justice  of  peace.      (See  Cruelty  to  Animals,  etc.) 
Homes  'for.      (Sec  Humane  Societies.) 

in  case  of  Cincinnati  Orphan  Asylum.   .375 
powers  of   Women's  Christian  Association  as  to,  499 
Placed   in  Cincinnati  Orphan  Asylum  how,   574 

CHOSES  IN  ACTION. 

Of  foreign  corporation,  subject  to  taxation  when.  17 
CHURCH  SOCIETIES.      (See  Religious   Societies.) 

CINCINNATI.      (See  Municipal   Corporations  —  cities  1st   class   1st   grade.) 
CINCINNATI  ORPHAN  ASYLUM. 

Children  placed  in,  how,   574 

adopting,   binding  out,   placing  in  homes,  575 

Devises   to  county   commissioners   of  Hamilton   County  administered  by,  when,   574 

Endowments,  power  to  hold  in  other  states,  574 

Managers   for  —  increase  or   decrease   of,   573,   574 
classification,  term  of  office,  upon,  573 
number  of,  573 

Members,  who  are,   574 

honorary   membership,    574 
life    membership,   574 

Power  to  acquire,  hold,  etc.,  real  and  personal  property,  574 

Property  of,  to  be  used  for  legitimate  objects  of,  574 
CITIES.     (See   Municipal  Corporations.) 
CITIZENS,    CITIZENSHIP. 

Duties  of  commissioners  of  railroads  as  to  differences  between  common  carriers  and,  25 

Foreign    corporations    are,    how   far,    14 

Plaintiff  in  action  against  foreign  corporation  need  not  be.   16 

Railroad  company  does  not  cease  to  be,  by  extending  line  into  another  state,  182 

Pvailroad  police  must  be,   292 

Trustees  to  hold  assets  of  fire  insurance  company  foreign  to  U.  S.  must  be,  428 

CITY    SOLICITOR. 

Civil  action  against  railroad  and  telegraph  companies,  for  penalties,  etc.,  brought  by,  30 

CLAIMS.   (See  Death  Claims.) 

CLERK  OF  COURT  OF  COMMON  PLEAS. 

Award  as  to  value  of  stock  of  dissenting  stockholder  deposited  with,  206 
Certificate  of  assignment  of  property   bv   certain   local  religious   societies   to  parent  so- 
ciety  filed' with,    490 
Commission  of  railroad   police  recorded  in   office  of,  293 

notice  of  ceasing  of  powers  of,   also,   293 
Official    capacity   of  "officer   taking   acknowledgment    of    articles    of    incorporation    certi- 
fied  by,    100 
CLEVELAND.      (See  Municipal  Corporation  —  Cities  first  class,  second  grade.) 

CLUB-HOUSES. 

Directors  of  companies  owning,  etc.,  elected  when  and  where,  123 
COAL. 

Freight  charges  on,  rate   of,   264 
COAT.   MINES. 

Freight  way  or  private  railway  for  when,  240,  241 

Switching   cars  of  other   railroads   to,   236 
COAL  MINING  COMPANIES.      (See  Mining  Companies.) 

May  manufacture  iron,  when,  569 


INDEX.  713 

( Refer*  aces  an    to  ] 
COGNOVIT  NOTE.      (See    NEGOTIABLE    !  N  8  i  Bl  Mi.M.s.j 

COLLATERAL  LOAN  COMPANY.     (See  Savings  and  Loan  Coupantj 
In  counties  containing  cities  "i    i-i    class   id   grade, — 
by-laws   of —  directors   establish,    511 
capital  stock  of, — 
amount  of,  517 

held     li\     niic     person,     517 

paid   in  before  commencing  business,  517 
subscribed    before    commencing    busini    -.    517 
raised   by   subscriptions,   517 
shares  of,   par   value,   517 
transfer   of,   518 
directors    of  —  appointment    and    ele.t  inn    of,    517 

Dumber,  residence,  term,  etc.,  of,  517 
incorporators  of  —  number,  517 
Joans   by  —  amount    of;    percentage   of,    517 
expenses    of,    517 
interest  on,  517 
maturity  of,  517 
order  of  making,  517 
secured  only  by  —  chattel   mortgage,  517 
pledge   of   goods   and    chattel-.    517 
officers,  directors  elect,   517 
powers  and  objects  of,   517 

cannot  do  deposit  or  exchange  business,  517 
to  borrow  money,   limitations,  517 
pledges.      (See  ''loans"  above.) 

pawn  tickets  must  be  given  for,  517 

must    show  what,   517 
right  to  redeem,  517 
unredeemed,    sale    of,    517 

disposition  of  proceeds  of.  517 
reports  of  —  made  to  governor,  518 
made   to    stockholders.    5  1  s 
made  when ;   must  be   in  writing,  518 
stockholders   of  — liability   of,    51s.    152 
section  3258  applies  to,  518 

subject  to  provisions  of  Revised  Statutes  so  far  as  applicable,  518 
COLLEGES.      (See  Schools  and  Colleges.) 
COMBINED   EXPERIENCE    TABLES.      (See   INSURANCE    Cos  — Like.) 

COMITY. 

Foreign  corporations  exercise  powers   by.   13 

bank  cannot  do  unauthorized  banking  by,   523 

law  of,   satisfied  when,  389 
COMMISSION,    COMMISSIONERS. 

For  ditch   along  railroad  tracks. — 

duties,   powers,  fees,   and   expenses   of.   237 
To  hear  petition  for  consolidation  or  re-insurance  of  risks,  etc.     (See  Insurance  Com- 
panies—  Accident   and   Health;    Life.) 
COMMISSION  MERCHANTS.      (See  Merchants.) 
COMMISSIONER  OF  RAILROADS  AND  TELEGRAPHS. 
Appointment,   bond,    and   oath    of.    21 
Clerk   for, —  appointment  of,   25 

duties  and  powers  of,  25 
Duties  and  powers  of,  as  to, — 

accidents    on    railroads,    resulting    fatally.    20 

accounts    of    railroad    and    telegraph    companies,    28 

automatic  safety  devices  at    crossings,    22 

bells   at  crossings.   22 

bridges.    21,  22 

bridges,    viaducts,   wires,   etc.,  over   railroad   track-.    234,   '-':'..").   258 

contempt,    punishing    for,    2!) 

copies  of  agreements,  contracts,  leases,  etc.,  of  railroad  companies,  2'.> 

crossings    at    public    highways.    21,    22 

differences  between   citizens   and    common    carriers,    25 

examination  under  oath  of  agents,  employees,  or  officers  <>f  companies.  29 

fire    extinguishers    for    passenger    trains.    239,    240 

flagmen,    at  crossings,    22 

of   trains,   enforcing  provisions  as  to  qualification-    of,    248 


744 


INDEX. 

(References   are   to   pages.) 


COMMISSIONER  OF  RAILROADS  AND  TELEGRAPHS  —  Continued, 
freight  trains  running  without  full  crew,  258 
freight  ways  or  private  railroads,   241 
heating  baggage,  passenger,  etc.,  ears,  239 
hours  of  service  of  certain  employees   of  railroads,   249 
inspector   of  automatic   couplers,  air  brakes,   etc.,   255 
interlocking  system,  fixtures,  etc.,  at  crossings,  streams,  etc.,  24,  224 
notice  to    railroad   officers, — 

of  changes  necessary  in  keeping  accounts,  29 
of   dangerous   conditions,   repairs,   etc.,   21,   22 
requiring  safety  devices  at  highway  crossings,  22 
oaths,  administering,   etc.,  29 

passenger  cars,   lighting  with  oil,  etc.,  below  test,  238 
movable  bridge  or  apron   between,   238 
running  of,  over  dangerous  bridges,  etc.,  21 
production  of  books  and  papers,   29 

prosecution  for  fines  and  penalties  against  railroad  and  telegraph  companies,  30 
qualifications   of   certain   employees,    248 

reports  of  railroad  and  telegraph  companies,  25,  28,  255,  257 
form   and  manner   of  certain  prescribed  by,   25 
forms,  blank,  for,  furnished   by,  25,  28,  255 
speed  of  trains  in  certain  cases,  21 
structures  of  railroad,   21 
subpoenas  for  witnesses,  29 
tracks,   21 

violation  of  laws  by  companies,  officers,  etc.,  25 
waiting   rooms   at  railroad   stations,   215 
Eligibility  to  office  of,  21 
Expense  of   maintaining  department  of. — 

apportioned   by  state  board  of  equalization.   26 

additional  on  account  of  inspection  of  automatic  couplers,   etc.,   256 
borne  by  railroads;   limit  of,  26 
Free  travel  of.  on  railroads,  right  to,  25 
Member  of  state  board  of  equalization  for  railroads,  82 
Office   of,  where,  25 
Report  of,  requirements  as  to,  30 
Term  of  office  of,  21 
COMMITTEE.      (See    Executive    Committee.) 

COMMON  CARRIERS.      (See  Pipe  Line  Companies:  Railroads.-   Railroad  Companies.) 
Differences  between  citizens  and,  duties  of  commissioner  of  railroads  as  to,  25 
Freight.      (See  Freight.) 

Pipe  line  companies  for  natural  gas,  oil,  or  water  are,   571 
Rates  of  fare  of,  general  assembly  may  alter  or  regulate,  2 
COMMON  CARRIER  COMPANIES.      (See  Express  Companies:  Freight  Line  Companies; 

Pipe  Line  Companies:    Railroad  Companies:   Street   Rail- 
way  Companies,   etc. ) 
Bonds,  etc.,  of  —  amount  of;   par  value,  etc.,   of,  563,   564 
interest  on;  limitations  as  to,  563 

sale  of,  at  less  than  par;    stockholders  must  authorize,   564 
secured   by  mortgage  on  franchises  and  property.   564 
Capital   stock   of. — 

corporations  may   subscribe  to  and  own,   564 
consent  of  stockholders  necessary,  564 
Powers  of,  563 

to   borrow   money,   etc.,   563 

contract  for   transportation  of  persons,  property,  etc.,  563 
lease,    complete,    operate,    etc.,    railroads,    563 

COMMON  LAW. 

Power  of  corporations  to  deal  in  real  estate  under,  95 

COMMON   STOCK.      (See  Capital  Stock.) 

CONDEMNATION.      (See   Appropriation.) 

CONDITIONAL  SALES.      (See  Railroads.) 

CONDUCTORS.      (See  Railroads;   Street  Railway  Companies.) 

CONSENTS. 

Of  abutting  property  owners.      (See   Abutting   Property  Owners.) 
CONSOLIDATION  OF  COMPANIES.      (See  under  various  companies.) 

Agreement   or   articles   of,   fees    for    filing,   9 

Calls  for  payments  on  stock  pending,  US 


INDEX.  745 

(References  are  to  pages.) 

CONSOLIDATION  OF  COMPANIES  —  Continued. 

Laws    as    to    consolidation    of    railroads    apply    to    certain    companies.      (See   Railkoad 
Companies.) 

Rescission  of,  when  made  by  sale  of  properties,  111 

CONSTABLES. 

Duties  and  powers  of,  as  to, — 

arrests  for  sale  of  liquors  at  agricultural  fairs,  4G0,  4G1 

for  violation  of  state  laws  at  same,  460 
seizure  and  disposition  of  articles  used   in  same,  401 
Special  at  fairs, — 

appointment   of, —  application   for,    by   agricultural   societies,   4G0 
entry   of,   giving  number   and  names,  400 
justice  of  peace  makes,  4G0 
powers  of,   400 
CONSTITUTION.     (See  Regulations.) 
CONSTITUTIONALITY. 

Laws  authorizing  —  appropriations  by  corporation  are  valid,   GOG 
entry  and  survey  for  appropriation  valid,  184 
requiring  listing  stock  of  foreign  corporations  are   valid,   00 

CONSTITUTIONAL  PROVTSIONS- 

Associations  with  banking  powers,   laws  authorizing  to  be  submitted  to  electors,  3 
Corporate   powers,    cannot  be  conferred  by  special    law,    2 
Corporations, — 

aid  to,  counties,  cities,  towns,  etc.,  cannot  give,  2 

state  cannot  give,  or  assume  debts  of,   1 
appropriation   of  right  of  way  by,   3 
dues  from,  secured  how.  2 
formed  under  general  laws,  2 

subject  to   alteration  or  repeal,  2 
property  of,  subject  to  taxation   same   as   individuals,  3 
Stockholders  —  counties,  cities,  towns,  etc.,  cannot  become,  2 
liability  of,  must  equal  what,  2,  3 
state  cannot  become,   1 
CONSTRUCTION. 

Of  laws.     (See  Laws.) 

Of  plants,  works,  etc.      (See  under  various  companies.) 
CONTEMPT. 

Judgment  of  ouster  in  quo  warranto  enforced  as  for,  532 
What  constitutes  — 

disobedience  of  order  of  court  to  deliver  subject  of  litigation,  when.  591 
refusal  —  to    deliver    books,    papers,    etc.,    of    dissolved    corporation    to    trustees    in 
quo  warranto  is,  633 
to   testify,  produce  books,  etc.,  in  examination  for   excise  tax, — 

in  case  of  electric  light,   gas,  messenger  or   signal,   natural   gas,   pipe   line, 
street,    suburban    or    interurban    railroad,    union    depot,    and 
water  works  companies,  80 
equipment    (R.    R. )    and   freight   line   companies.    73 
express,  telegraph,  and  telephone  companies,    70,  80 
railroad  companies,  GO,  67,  80 
sleeping   car  companies,   76 
Who  may  punish  for, — 

board  of  appraisers  of  railroads,  G7 
commissioner   of    railroads    and    telegraph,    20 
state  board  of  appraisers  and  assessors,  67,  70,  73,  76,  80 
CONTINGENT  FUND.     (See  Insurance  Companies.) 
CONTRACTS. 

As  to  use,  etc.,  of  streets,  etc.      (See  Streets.  Alleys,  etc.) 

Between  councilmen  and  street  railway  to  assist  in  procuring  right  way,  void,  50 
companies  having  same  directors  void.    130 
directors    and    corporation,    130 
Consolidation.      (See  Consolidation.) 

Copies  of,  railroads  must  furnish  to  commissioner  of  railroads,  29 
Corporations,    powers   of,    as   to,    108,    364 
For  formation  of  corporation,  effect  of,  etc.,  96,  98 
sale   of    stock  —  action    on;    evidence.    148 

refusal  to   perform;   remedy,   148 
secret  intentions  of  incorporators  as  to,  98. 
Foreign  corporations.  — 

not  complying  with  section  148c,  148d,  are  not  void,  14 


746  INDEX. 

(References  are  to  pages.) 

CONTRACTS  —  Continued. 

cannot  sue  on,  11,   12 
right  of  action  is  merely  suspended,   14 
license  of,  to  do  business  is  not,  15 
Lighting,   by   municipalities.      (See  Municipal   Corporations.) 
Limiting  general  control  of  directors  over  corporate  business,  validity  of,   129 
Made  before  incorporation,   void   when,    104 
Unauthorized,  liability  of  directors  on,   132 
Ultra    vires.     (See    Ultra   Vires.) 

CONTRIBUTION. 

Right  of  stockholder,  against  other  stockholders  for,   156 
CONVERSION.      (See    Bonds  —  Corporate :    Capital    Stock.) 

CONVEYANCES.      (See   Real   Estate.) 

Executed  by  superintendent  of  insurance.      (See  Superintendent  of  Insurance.)' 

CO-OPERATIVE   COMPANIES.      (See  Trade  Associations.) 

Articles  of  incorporation  of  —  may  limit  votes  of  stockholders,   121 

Assets   of,  report  to  county   auditor   must   give,    121 

By-laws    of  —  may   provide    for    distribution   of    earnings   among   workmen,    patrons,   or 

shareholders,    121,    122 
Capital    stock    of  — 

amount  of  paid  up.  report  to  county  auditor  must  give,  121 
shares  of,  number  held  by  each  stockholder  — 

limitations  on:   purpose  of:  evasions,  121,  122 
report   to  county  auditor   must  give,   121 
Directors   of,   make   reports   to   county   recorder,    121 

liability  of,  for  failure  to  make  or  making  false,  121 
Foreign  — 

deposit  with  state  treasurer,  before  doing  business,   12 
sections  148c,  148d  do  not  apply  to,  11,  12 
Reports  of,   121 

Stockholders,  reports  must  give  name  and  number  of  shares  held  by,   121 
Treasurer  of,  reports  signed  by,    121 

COPIES.      (See  also  under  various  headings.) 

Fees  for  making,  etc. —  by  secretary  of  state,   10 
by    superintendent    of   insurance,    35 

CORONER. 

Duty  of,  as  to  arrests  for  unlawful  selling  liquor  at  agricultural  fairs,  460,  461 
as  to  disposition  of  articles  used  in  same,  461 
of  unclaimed  or  unidentified  corpse,  481,  482 

CORPORATE    ACTS. 

Acts  of  stockholders  are,  when,  105 
Evidence  of  purpose  of,   106 
Presumption  of   validity   of,    106 
CORPORATE    CAPACITY. 
How  pleaded,  etc.,  112 
Want   of,   how   pleaded,    112 
CORPORATE   DOMICILE. 

Articles  of  incorporation  fix,  55,  96,  98 
effect   of,   98 
failure  to  designate,  97 
form   for   stating,   645 
Change  of  —  power   to  make,   55,  98 

fees  for  filing  certificate  of,  9 
For    purposes    of  —  attachment,    98 
commencing   suits,    etc.,    98 
taxation,  55,  98 
Is  situs  of  stock  for  purposes  of  legal  process,   149 
Of  company  created  by  concurrent  legislation  of  two  states,  17 

CORPORATE    DEBTS.     (See    Corporations—  "  Liabilities    of.")      (See    also   under    various 

companies. ) 
Account  of,  etc.,  to  accompany  petition  for  voluntary  dissolution,   594 
Amount   of,   — 

annual  statement,   reports,  etc.,  must  show,    168 

in  case  of  companies  limiting  vote  of  stockholders,  121 
Secured   how  —  by   stockholders'   liability,   2 

by    trustees'    liability,    155 
State  cannot   assume,    1 


[NDEX.  747 

(References  are  to  pages.) 


CORPORATE  DEBTS  —  Continued. 
What  are,  — 

as  relates  to  taxation,  re-insurance  is  aot,  34 
so  as  to  render  trustees  liable,    104,    165 
CORPORATE    ELECTIONS.      (See    DIRECTORS.) 

Calls  for,  must   be  made  by  directors  as  a  board,   124 
Certificate  of,  fees  for  filing,  9 
Fair, —  stockholders  entitled   to,    1  li.'i 
what  constitutes  an  unfair,   123 
Inspectors   of —      (See   DIRECTORS.) 

appointment  of  —  application  to  court  for:    notice   of,  etc.,    122 
directors    cannot    make,    122,    124 
stockholders  may  make  when,   122,  124 
compensation   of,    123 
conduct  of  elections   by,    123 
list   of   stockholders   for   use   of,    122 
number  of:   removal,  etc.,  122 
vacancies  —  court  may   fill    when,    122 
stockholders  fill  when,    122 
Ownership  of   stock   in,   evidence   of,    122 
Receivership   and   sale   of   property,   effect    upon,    124 
"Repeating"  at,  not  a  penal  offense,   124 
Time  of  holding,  provisions  as  to,  directory  wdien,   123 
CORPORATE    EXISTENCE. 

Allegations  of,  in  quo  warranto,  628 

in  indictments,   G39 
Begins   when.    102,    103,    104 
By-laws   limiting,   effect   of,   136 

Cannot  be  questioned  for  not  doing  business  in  home  state,  15 
De  facto.      (See  Corporations.) 
Denial   of  —  by   corporation,   99 
by  debtor,  99 

one   dealing  with,    15,   99 
stockholder,   99 
cannot  be  made  in  quo  warranto,  when.  628 
Evidence  of,   100,   101 

certified  copy  of  articles  is  prima  facie  when,   100. 
condition    precedent    to    be    performed,    101 
effect   and   force   of   certificate,    101 
in   case   of  companies   seeking  to   appropriate,   608 
consolidation   of  benevolent,   etc.,   societies,  497 
religious  endowment  ftind  companies,  493 
company  seeking  to  appropriate  must  furnish,   99,   608 

what  constitutes,  608 
in  ease  of  foreign  corporations,  15 
Limitation   of,   of   real  estate   companies,   93,   95 
Pleaded    when,    112 
CORPORATE  FRANCHISES.      (See  Franchises.) 

Forfeiture,  etc.,  of.      (See  Quo  Warranto.) 
CORPORATE   NAME.      (See   also   under   various   companies.) 
Articles    of   incorporation   must   give,   96,    100 
discretion   of   secretary   of   state   as   to,    101 
form   for   stating,    645,   657 
Change   of.   — 

amendment  to   article  may  make,    102 
consent   to    use   of,    form    for,    660 
fees   for   filing  copy  of   decree   of  court   as   to,   9 
Misnomer,    in    pleadings,    112 
Reports,  — 

to  secretary  of  state  must  give  — 

in  case  of  corporations  for  profit.   17 
corporations   not   for   profit,    19 
foreign    corporations,     18 
to   state   auditor   must  give.      (See   under   various   companies.) 
Requirements,  etc.,  as  to.  — 

in   case  of  corporations   for   profit,   96 
misleading    not     permitted,     100,    102 
similarity  of.   to  that  of  another  company.    101.    102 
deceptive  use  of  one's  own  name,    101 
discretion  and  powers  of  secretary  of  state  as  to,  101 


748  INDEX. 

(References  are  to  pages.) 

CORPORATE  NAME  —  Continued, 
examples  of.   102 

not    permitted    when,    except,    101,    102 
CORPORATE  OBJECTS  OR  PURPOSES.      (See  under  respective  companies.) 
Abandonment,   etc.,   of, — 

effect,   on   stock   subscriptions,    139 
ground  for  dissolution  when,   593 
what  will  not   constitute,   139 
Articles   of  incorporation  must  give,   96 

forms  for  statement  of,  in.      (See  Forms.) 
must  be  clearly   and   definitely   stated,    98 
what  not  to  be   stated,   98 
Change  or  extension  of,  — 

amendment  to  articles  may  make,   102 

substantial   change   not  permitted,    102,    103 
unlawful  purpose  cannot  be  provided   for,  by,   102 
fees  for  filing  certificate  of,  9 

fundamental,   assent  of   all   stockholders  necessary  when,   103 
incidental  and  auxiliary,  what  are,   103 
Corporate  property  used  only  for  the  legitimate,  167 
Corporations  may  be   formed   for  what,   93 

not    for    professional    business,    93 
One  main   purpose  only  permitted,   95,   98 
Secret   intent   of    incorporators    as   to,   94 

Statement  of  foreign  corporations  to  secretary  of  state  must  give,  12 
Unauthorized    purposes,    what   are,    94 
CORPORATE   POWERS.      (See    also    under    respective    companies.) 
Abandonment    of.   by   special   act,   2 
Board   of  directors  or  trustees  exercise,    128,   129,   130 
Construction  of  laws  granting,   104,   105 
Exercise  of,  outside  of  state,  104 
General  Assembly  cannot  confer  by  special   act,  2 
General  enumeration  of,    103,    104 

to  alienate  property  and  franchises,   112 
become  guarantor   or  surety,    112 
borrow  money,    108,   150,    151,    152 

yea  and   nay  vote  on:   record  of,   152 
contract,   form,  time,    etc.,   of,   108 
deal  in   and  hold  its  own  stock,   109,   110 
in  other  companies,   109 

in  case  of  companies  not  having  capital  stock,  in  hall,  etc.,  company,  395 
deal  in   and  hold   real   estate,   99,   105 
at  common  law,  95 
who  may  question,  etc.,  105 
enter   into   partnership,    110 

trust   agreements,   112 
hold  and  convey  personal  property,   103 
indorse  accommodation  paper,   108 
make   and   use  a   common   seal,    103 
pledge  individual  liability  of  stockholders,  112 
purchase  negotiable   paper,    108,    109 
sue  and  be  sued,   103,   130 
for    slander,    108 
Implied,    100 
Incidental,   364 

Notice  of,  who  presumed  to  have,   106 

Ordinance  for  extension  of   street  car  lines   does  not  confer,   2,   52 
Power  of  stockholders  as  to,  129 
Surrender    of,   by    special    act,    311 
Ultra    vires.     (See    Ultra    Vires.) 
Who  may  question,    106 
CORPORATE    PROPERTY.      (See    Personal    Property:    Real    Estate.      See    also    under 

respective  companies. ) 
Conversion  of,   rights  of  stockholders  as  to,   132,   134 
Corporate   franchise   is    not,    56 
Directors   or    trustees   control,    128 

may  purchase  when,  130  B.    ...    ,,„ 

may  sell  without  vote  of  stockholders  when.  95.  129.    160 
Employed  only  for   corporate  purposes.   167 
Is  "private  property"  within  meaning  of  constitution,   110 


INDEX.  740 

(References  are  to  pages.) 

CORPORATE  PROPERTY  —  Continued. 
Power   to   alienate,   etc.,   95,    103,    1 1 1 

forms  for  regulations  as  to  sale,  etc.,  66fl 
fraudulently  disposed  of,  may  be  followed   when,    132 
Stockholders'  power  over,  129 

Valuation   of,   in    returns   for   taxation,    rule   for.    55,    .">i; 
CORPORATE    RECORDS. 
As  evidence,  125 
Books  for,  form  of,  etc.,  075 

Examination    and    inspection   of.      (See   Books   and    Papers.) 
Forms,   etc.,   of,    075,  078 
Interpretation    of,    120 
CORPORATE    SEAL. 

Corporations  may  make,  alter,  and  use,  103 
Form   for   regulation,    establishing,    669 
Presumption  as  to  authority  to  use,   111,   112 
Scroll    seal    sufficient    when,    111 
What  must  be  under,  — 

certificate  of   amendment  of  articles  of   incorporation.    L02 
change  of  counties  in  which  railroad  is  located.    ISO 
curing  defects   in  consolidation  of  railroads,   273,   274 
re-organization    of    railroads,    281 
consolidation   agreements    of   railroads,    271 
deeds  —  not  required,   111 

required  in  case  of  railroads,   130 

in  case  of  sale  of  toll  roads  to  private  purchaser.  336 
to    county    commisioners,    337 
reports  of  foreign  corporations  under   §   148d,   12 
surrender  of  toll  roads  to  county,  336 
CORPORATIONS.      (See  various  headings  herein.) 

Acceptance  of  provision  of  Revised  Statutes  by  companies  created  prio*-  to   1851.      (See 

Acceptance.) 
Admissions  of  officers  or  stockholders  do  not  bind  when,  131 
Aid  to  —  raising  money  for,   or   loaning  credit   to,  forbidden  in  case  of  state,   counties, 

cities,   townships,    1.   2 
Business  of.      (See  also  Corporate  Objects  and  Purposes.) 
directors    or    trustees    conduct,     128 

must  act  as   board   to   bind.    125 
power  of  stockholders  over,   129 

nature  and  kind  of,  reports  to  secretary  of  state  to  give,  17 
in  case  of  corporations   for  profit,    18 
foreign  corporations,    18 
unauthorized.      (See   Ultra  Vires.) 
Combinations  or  joint  arrangements.      (See  Consolidations:   Trcst  Agreements.) 
Creation  or  formation  of.      (See  Incorporation.) 
contract  for.  effect  of,  96,  98 

secret   intent   of   incorporators   as   to,    98 
is  accomplished  when,   102 
must  be   under   general    laws,   2 

such  laws  may  be  altered  or  repealed,  2 
De   facto,  — 

consolidated   company   is   when.    270 
evidence  of,  what  constitutes,  98 
liability   of  stockholders   in,    142,    153 
want  of  legal  organization  pleaded  how,  99 
Defunct  —  service  of   process   in   case   of,   GOO 

suit  against,  000 
Foreign.      (See  Foreign  Corporations.) 
For   profit:    what  are.    94,    95 

building  and  loan  associations  are,  552 
Knowledge  of  directors  imputed  to,  when.   130 
Laws,  what  govern  and  control,  91 

in  case  of  companies  created  prior  to   1351.   91,   92,   205 
companies  formed  to  do  business  in  foreign   state.    17 
special   provisions   govern    when,    168 
Legal  entity  of.  fiction  of,  may  not  be  used  to  work  injury.  106 
Legislative   control   of,    2 

in    case   of   companies   under    special    charter.    349 
Liability  of,  for  or  account  of  — 
assault  and  battery,    107 


750  INDEX. 

(References  are  to  pages.) 

CORPORATIONS  —  Continued. 

contracts  of  promoters.   104 

issuance  of  new  certificate  of  stock  for  one  lost  or  destroyed,  147 

libel,    108 

negligence,     108 

negotiable  paper  issued  by   officers,    126,    127 

partnership  debts  upon  taking  partnership  property,  106 

trespass,   108 
Loans  by.     (See  Loans.) 
Not  for  profit  —  fees  for  filing  articles  of,  9 

may   have   capital   stock,   95 

secretary  of  state  may  refuse  to  file  articles  when,  94 

what   are^   95 
Notice  to  —  notice  to  directors  is  not  when,   130 

to  special  agent  is  when,  131 
Organization    of  — 

condition  precedent  to,  required  subscription  to  stock  is,  118 

failure  to  complete,  ground  for  quo  warranto,  628 

fraudulent,   liability   of   promoters,   members,   etc.,    107 

meeting  for:    notice  of,    118,    119 
must  be  held  in   state,    119 

preliminary,  does  not  exist  after  incorporation,   104 

presumption   of   regularity,    119 

proof    ofj    119 

substantial    compliance    with    charter     sufficient,    523 

want  of  legal,  pleaded  how,   99 
Partnership,  company  cannot  enter  into,   110 
Person"  or  "persons"  in  section  2485  includes,  43,  113 

in  laws  as  to  cruelty  to  animals  include,  468 
Ratification  of  unauthorized  acts,  notice  to  directors  will  not  work,  when,  130 
Removal  of  business  and  officers  from  state,  effect  of,  120 
Reports  of.      (See  Reports:   also  under  various  companies.) 
Reorganization  of,  cannot  be  by  special  act,  2 
Slander,  may   sue  for,   108 
What    constitutes    a,    13 

CORPSE. 

Company   for   protecting  and  preserving  — 
bequests,    devises,    etc.,    to,    573 

exemption  of  property  of,  from  appropriation,   execution,  and  taxation,  573 
power   to  acquire,   hold,  etc.,   real   estate,    573 

to  construct,  maintain,  etc..  vaults,  buildings,  etc.,  573 
Disinterment    of.      (See    "Removal.") 

application  for ;   must  state  what,  39,  40 
form   of,   40 
oath   to,   40 
may  be  made  w7hen,   39 
next  of  kin  may  cause,  on  application,   39 
not  permitted   when,   39 
permit  of  health  department^  necessary,  39 
refusal   to  permit,   mandamus   lies,   40 

when    cemetery    is   abandoned,    discontinued,    etc.,    39,    361 
Dissection,  medical  examination,   etc.,  of  — 
bodies  subject  to.  what  are,  481,  482 
delivery  of,  to  claimant,  482 
held  how  long  before  delivery  for,  481 
interment    of"  required,    482 
notice  to  friends  or  relatives,  482 

to   parties    entitled   to   receive.    481 
officials   accepting  consideration   for;    penalty,   482 

refusing   to   deliver   for;    penalty,    482 
to  be  used  for  medical  or   anatomical   study  only,  482 

outside  of  state  not  permitted.  482 
who  may  receive  for  purpose  of,  481,  482 
Interment  of.   required.   39,  40 
after  dissection,  etc.,   482 

penalty  for   permitting  to   remain   in  vault,  etc.,   39,   40 
Unlawful  detention  or  possession  of,   482 
what  constitutes,  482 

COUNCIL.      (See  Municipal  Corporation.) 


INDEX.  751 

(References  are  to  pages.) 
COUNTER  CLAIM. 

Against   liability  of   stockholder,   153 

COUNTIES.      (See  County  COMMISSIONERS.) 

Cannot  aid  or  loan  credit  to  corporations,  2 

Public  grounds  of  —  museum,  hall,  park,  pond,  rink,  etc.,  companies  may  use  when,  569 

COUNTY   AGRICULTURAL   SOCIETIES.     (See   Agbicultubal   Societie£       Couwtt.) 

COUNTY  AUDITOR. 

Duty  of,  as  to, — 

agricultural  societies  —  district   and  county,    150 

apportionment  of  valuation   of   railroad   property,   67 

deducting  right  of  way  df  railroad  from  laud  on  tax  duplicate,  214 

ditches    along   railroad   tracks,   2:;7 

examination   of  books,   officers,  etc.,  of  bank,  65 

incorporation   of  landholders  assessed  for  unproved   roads,   341,  342 

returns    of   corporation-    for    taxation.    ."i(i 

in  case  of  banks  whose  capital   is  divided   into  shares,  64,  65 

returns   of  personal   property   for  taxation,   (il 

surrender  of  turnpike  and  plank  road  to  county.  336 
Fees  of,  as  to  —  purchase  of  toll  roads  by  county  commissioners,  338,  339 
Member  of  board  of  appraiser-  and  assessors  of  railroads,  65 
State  auditor  certifies  equalized  value  of  bank   shares   to,  82 

COUNTY  CLERK.      (See  Clerk  of  Court  of  Common    Pleas.) 

COUNTY   COMMISSIONERS. 

Contracts   for   use  and   occupancy   of  highways   bv   railroad-    should   be  entered   on   min- 
utes,   190 
failure  to  do  so.  effect,  100 
Duties  and  powers  of,  as  to, — 

avenue  companies  in  counties  containing  city  of  2d  class  2d  grade,  344 
bridges,   culverts,   etc., —  contracting  for   wagon   way-   over   railroad  bridge,   577 

enlargment   of.  under  railroads,    turnpikes,   etc..   57G 
county  agricultural  societies,  appropriation   of  property   for,  4G3 
grants  to  use  roads,  etc.      (See  Streets,   Highways,  etc.) 
purchase  of  toll  roads,  337,  338 

railroad  crossings  at  highways.      (See  Railroad  Crossings.) 
surrender   of  turnpike,  etc.,  to  county,  336 

entry  of  acceptance  of.   upon  journal.   336 
tolls  —  licensing  turnpike,  etc.,  companies  to   take,   330 
disqualification  of,  when  stockholders,  330 
over  railroad  bridges,  approval  of  rates  of,   196 

COUNTY  RECORDER. 

Reports  to  —  companies  limiting  votes  of  stockholders  to  make,   121 
What  to  be  filed  with  — 

affidavit  for  mechanic's  lien  against  railroad,  84 
assent  of  stockholders  to  mortgage,  when.    151 
oath  of  directors  of  free  banking  companies,  540 
What  to  be  recorded  by  — 

affidavit  for  mechanic's  lien  against  railroad.  S4 

articles  of  incorporation  of  free  banking  companies.   538 

consolidation  agreements  of  benevolent  societies,  497 

deeds  of  turnpike,  etc.,  roads,  336 

mortgage  securing  bonds,  notes,  etc..  of  railroad  companies,  200 

of  ship   canal  companies,  312,  200 
right  of  way  papers  of  railroad  company,  215 
effect  of,    as    evidence.   215 
impeachment  of  record,  215 

COUNTY  SURVEYOR. 

Duties  and  powers  of.  as  to  ditches  along  railroad  tracks.  237 
fees  and  expenses  as  to  same,  237 

COUNTY  TREASURER. 

Burglary  insurance  companies  may  insure.  445 

Duties  of,  as  to  payments  to  district  and  county  agricultural  societies,  450 
Fees  of,  in  purchase  of  toll  roads  by  county  commissioners,  338.  339 
Fines  under  quo  warranto  paid  to,  for  use  of  common  schools,  635. 

COUPONS.     (See  Bonds  —  Corporate. ) 

COURTS  —  CIRCUIT. 

Jurisdiction  of,  in  quo  warranto,  630 


752  INDEX. 

(References  are  to  pages.) 
COURTS  —COMMON  PLEAS. 

Appointments  by,  make  what, — 

arbitrators  to  ascertain  value  of  stock  of  dissenting  stockholder,  206 
fiscal  trustees  of  certain  benevolent  societies,  495 
inspectors  of  corporate  elections,  when,  122 
Clerk  of.      (See  Clekk  of  Court  of  Common  Pleas.) 
Judge  of,  duty  and  power  of,  as  to  diverting  college  endowment  funds,  463 

as  to  licensing  turnpike,  etc.,  companies  to  take   toll,   330 
Jurisdiction   of  —  proceedings   in  —  as  to,  — 
appropriation  of  property,  616 

when  unfinished  roadbed  of  railroad  is  to  be  taken,  617 
cemetery  grounds  of  educational  and  religious  corporations,  sale  of,  488 
dissolution  of  corporations,  593 

in  case  of  manufacturing  and  mining  companies,  598 
fair   grounds,    pleasure   grounds,   orchards  — 

injuring  buildings,  fences,  trees,  etc.,  on,  463 
trespassing  upon,  463 

unlawfully  carrying  away  fruits,  nuts,  etc.,  from,  463 
impairment  of  capital  of  insurance  companies,  33 

liability  of  directors,  trustees,  officers,  and  stockholders,  enforcement  of,  158,  159 
railroad  bridges   over   canals,   navigable  waters,   etc.,   212 
for  authority  to  construct,  etc.,   212 
appointment   of   engineer,    212 
confirmation  of  report  of  engineer,  212 
notice  to  board  of  public  works.,  212 
railroad  crossings,  for  authority  to  use  device  to  cross  without  stopping,  224 
railroad  waiting  rooms,  enforcement  of  penalty  as  to,  215 
toll  roads  — for  abandonment  of,  within  municipality  for  lack  of  repair,  332 
for  repair  of    (on  appeal)    outside  municipalities,  333 

COURT  —  PROBATE  —  PROBATE  JUDGE. 

Appoints   fiscal  trustees  of  certain  benevolent  societies  when,  495 

injectors  of   corporate  elections,   122 
Bond  of.  liable  for  failure  to  pay  over  compensation  in  appropriation  proceedings,  614 
Jurisdiction,   duties   and  powers   of  — 

as  to  arbitration  of  value  of  stock  upon  consolidation  of  railroads,  278 

approval  and   record  of  appointment  of  agents  of  humane  societies,  466 
approval    of    bond    for    injunction    until    mechanic's    lien    on    canal,    turnpike, 

railroad,    street    railroad,    etc.,    settled,    89 
appropriation   of   property   by   corporations,   604-022 
ditches   along   railroad    tracks,    237 
licensing  turnpike  or  plank  road  company  to  take  toll,  330 

disqualification  of,  when  a   stockholder,   330 
lost  or   destroyed   stock  certificates.    146 
reports  as  to  unknown  depositors  of  banks,  544 
returns   of  banks   to  auditor,   for   taxation,   etc.,   65 
Fees   of  —  for   recording  reports   as  to  unknown  depositors  of  banks,   544 
in  proceedings  as  to  ditches  along  railroad  tracks,  237 

COURTS  —  SUPERIOR. 

Jurisdiction   of,    in   proceedings   for  — 

appropriation  of  unfinished  roadbed  of  railroad,  617 
dissolution   of   corporations,   593 

in  case  of  manufacturing  and  mining  companies,  598 

COURT  —  SUPREME. 

Error  prosecuted  to  directlv,  when  unfinished  roadbed  of  railroad  is  sought  to  be  taken, 

617 
Jurisdiction  of,  in  quo  warranto,  630 
CREDIT    GUARANTY   COMPANIES.      (See    Insurance    Companies  —  Credit    Guaranty.) 
CREDITOR.      (See    Assignment  for  Benefit  of  Creditors.) 
Actions  by,   for  — 

enforcement  of  liability  of  directors,  officers,  stockholders,   158 
account  of   corporate  property  and   obligations   when,    158 
application  of  corporate  assets,   159 
complaint   filed   where,   158 

proceedings  under,    158,   159 
failure  to  present   claims,   etc.,   efTcet   of,    159 
insolvency   of  company  necessary   to,   159 
judgment    for,    when,    159 
no   priority   acquired   by,    160 
notice  to  present  claims,  etc.,  159 

to   non-resident   stockholders,  when,    159 


INDIA.  753 

(References  arc  to  pages.) 

CREDITOR  — Continued. 

receiver  in.  appointment  of,   l.>8 

prosecution  by,  in  othei    |urisdirtions,  159 

^e^enTof  *of  ^tt^^eron^^^'. BB,.  W 

£?ud  K .-  .djustmenl   oi  di ,  effejH    on  . kholde,  >   Sty,   161 

^X^^VfZrslf^^™'* '"" 

Lien  claimed  in  another  case,  effect  on  stockholdei  a  liability,  151 
May  proceed   in  equity  when,  134 

Payment  of  claims  of,  effect  on  sto  kholder's  lability    157 
Right    of,— to  vote   for  directors  ot   railroad   company,   203 
°  under  bond  to   protect  stockholders   Iron,    Uabihty log 

upon  reduction  of  capital  or  par  value  ot   shares,   167 
Stock  subscriptions  collected  by,  when,   140    141 

injunction  against    directors,   when,    141 
Who  are,  of  corporation,    1515 

CREDITOR'S  BILL. 

To  collect  stock  subscriptions,    140 

defense  in,  141  .  Hn 

judgment  against  company   necessary  when     140 

J      ^stockholder    cannot    impeach    collaterally    when,    140 

lien  of  judgment  creditor  upon  filing.   141 

pleadings  in,    140 
CREMATORY    ASSOCIATIONS. 


CRIME 


Crematory  of,  near  dwellings  forbidden  when    300 

Morgue  of,   near   dwellings   forbidden    alien,    360 

Rights   and   powers   of,   same   as   cemetery   associations,   300 

Mure  of  foreign  corporation  to  comply  with  sections  148c,  148d,  no  defense  to,  15 


CRIAss^fions  to  apprehend,   etc.      (See  HoBSE  teim) 
arrest,   conviction,   etc.,  of  criminals  by,   456,  457 
power    to  expend   money   for,   457 
without  warrant  by  officers  jmd  members,  457 
constitution  and  by-laws  of,  457 
members  adopt,   457 
regulate  assessments  on  members,  457 
°    indemnity  to  members  for  losses,  457 
officers,  election,  duties,  term,  etc.,  457 
expenses,  county  commissioners  reimburse  when,  4o7 
incorporators    of,    number    and   qualification    of,    45b 
members    of  —  assessments    upon,    45/ 

oath    of.   who  may  administer,   4o< 
officers  of  —  duties,  election,  term,  etc.,  457 

oath    of,   who    to   administer,   457 
powers   and   objects  of,  457 

presiding,    deputies    of.    457 

appointment   and   number   of.    4.), 

may   administer   oaths    to    officers   and   members,   457 

certify    appointment,   etc.,   of   officers   and   members,   457 
seal,   power  to  make  and  use,  457 
CROSSINGS.     (See    Railroads;    Railroad   Crossings.) 
CROSS-PETITION.      (See  Pleadings.) 
CRUELTY  TO  ANIMALS  AND  PERSONS.     (See  Humane  Societies.) 

care  and  protection  of,  when  neglected.  460 
expense  of;  collection  of.  469 

animal  not  exempt  from  levy  and   sale   for,  4b9 
held  to  be  an  estray  when,  469 
notice  to   owner  or  custodian,  469 
possession  of,  may  be  taken  when.  469 
premises  may  be  entered  for  purposes  of.  when,  409 
removal   of,  for,  when,  469 
injured,  diseased,  or  aged— may  be  killed   when  and  by  whom,  469 
opinion   of  three   persons   necessary,   469 
Attempt  to  violate  provisions  as  to,  467 


754  INDEX. 

(References  are  to  pages.) 

CRUELTY  TO  ANIMALS  AND  PERSONS  —  Continued. 
Corporations,  liability  for,  468 

acts  of  agents,  employees,  etc.,  to  be  held  acts  of  company,  468 
Definition  of  terms  as  related  to  — 

"  animals,"  "  cruelty,"  "  owner,"  "  person,"   "  torment,"  "  torture,"   468 
Enforcement  of  laws  to  prevent  — 
attorney   to   prosecute  — 

fees  paid  from  county   treasury  as  county  commissioners  deem  reasonable,  466 
humane  society  or  agent  may  employ,  406 
by  arrest  of  persons  about  to  violate  by  dog  fighting,  etc.,  467 
bond  for  one  year,  468 

commitment  in   absence   of,   468 
hearing   upon,   468 

oath  not  to  violate  law  for   one  year,  468 
penalty  for  violating  while  under  bond,  468 
who   may   make   arrest,   467 
by  interference   to   prevent,   468 
who   may    make,   468 

call  on  by-standers  for  aid,  46S 
by   search   warrant,  467 
who  may  serve,  467 
conviction  of  agent  no  bar  to  action  against  principal.  468 
costs   in  trials  for  —  certifying  to  county   auditor,  466 
fees    of    officers    charged    in,    468 

person  convicted   must   pay,   468 
in  advance  not  required,  when,  466 

warrant  for  payment  of,  county  auditor  to   issue,  466 
jurisdiction  of  justice,  mayor,  or  police  judge  in,  466 
jury  trial,  before  justice   of  peace,  466 
challenge   of   jurors,   466 
venire    for,    466 

waiver  of.  need  not  he  in  writing.  467 
sections  3718a.  7147  do  not  apply  to.  467 
Person  guilty  of.  liable  in  damages  to  owner,  468 

CUMULATIVE  VOTING. 

Permitted    in   election    of   directors,    120 
not  obligatory,   120 
CURIOSITIES.     (See  Museums.) 

DAY'S  WORK. 

What  constitutes,  in  case  of  certain  railroad  employees.  248 

DAIRY  PRODUCTS.      (See  Adulteration  of  Foods,  Etc.) 

DEAD  BODIES.      (See  Corpse.) 

DEAF    AND   DUMB   HOME   ASSOCIATIONS. 

Board  of  state  charities  may  order  infirmary  deaf  and  dumb  removed  to,  572 
Cost  of  maintaining  indigent  inmates  in,  572 

when  removed    to,  by   board   of   state  charities,   ."72 
Infirmary  directors  may  contract  with,  for  care  of  indigent  deaf  and  dumb,  572 

DEATH.      (See  under  Railroads.) 

DEATH  CLAIMS. 

Examination  of    unpaid,  by  superintendent  of  insurance,   32 

DEBENTCRE  COMPANIES.      (See  Bond  and  Investment  Companies.) 

DEBTS.      (See  Corporate  Debts.) 

DECEIT. 

Action   for, — 

against  directors,  for  issuing  false  statements,  132 
by  trustees  of  bondholders;  cannot  bring,  when,   197 
DEDICATION. 

Railroads  cannot  acquire  property  by,  187 
DEEDS  AND  CONVEYANCES.      (See  Heal  Estate.) 
DEED  OF  SETTLEMENT. 

Fees  for  filing  copy  of,  of  insurance  company,  35 
DE  FACTO.      (See  Corporations:  Directors:   Trustees.) 
DEFECTS.      (See  Error  and  Omission.) 
DEFENSES.      (See  Actions.) 


i.\i)i:x. 

(References   are   t"    p3| 

DEFINITIONS. 

••Adjoining  state"  in  law  for  consolidation  ol   railroads,  —  * ' » 

"Animals"  in  laws  as  to  cruelty,    168 

"Assessment  company " —  life  insurance-     whal    constitutes,  364 

"Associates"  in  act  of  incorporation,   104 

"At"  in  articles  of  incorporation  of  railroads,  etc.,   100 

"Between"  in  articles  of  incorporation   of  railroads,  etc.,    LOO 

"Capital   stock,"  meaning  of,   as  to  taxation,  59 

"Company"   in  <•!,.   s,   §   6414  et   seq.    (appropriation)    includes   persons,   partnerships, 

etc.,  617 
"Combustible  material,"  a  grain  elevator   is   not,   245 
"Corporations  for  profit"  and   "not   for  profit,"  94,   95 
"Council"  includes   trustees  of   hamlet,   210 
"Creditors"  of  corporation,   153 
"Crossing"  railroad  over  highway,   221,  228 
••Cruelty"  in  laws  as  to  cruelty,    168 
"Dependent"  one  engaged  to  many  insured   is  not,  385 
"Dividends''  meaning  of,   169 
"Electric  light  company"   includes  what.  77 
"Employees"  of  railroad  company,  249 
"Equipment  company"   includes   what.   71 
"Express   company5    includes   what     68,    .7 
"False  returns  of  stock"  for  taxation,   what  is,  60 
"Fellow    servant"    who    is,    in    ease    of    railroads,    24S.    249,    253,    254 
"Foreign  corporation"  in  attachment  proceedings,   16,  581,  625 
"Franchise"  right  of  foreign  insurance  cempanj    to  do  business  is,  t>2, 
"Fraternal  beneficiary  association,"  395 
"Freight  line  company"   includes   what.  71 
"From"  in  articles  of  incorporation  of  railroads,  etc.,  100 

"Gas  company"  includes  what.  77 

"Good  health'"   in  application  for  insurance.  :'-77 
"Immediate  notice"   in   accident   insurance  policy.   414 

"In  or  near"  in  articles  of  incorporation   of  railroads,  etc.,  99 

"Jury"  in  constitution  relating  to  appropriation,   609 

"Laborer."  secretary  is  not.  within  §  6355,    127 

"Lands"  includes  what  in  appropriation.    L84 

"Legal  heirs"  means  next  of  kin  in  insurant i  assessmenl    plan.  384 

"Managing  agent"  of  foreign  corporation,  16,   583 

"May"  means  "must"  in  section  5023,  ->79 

"  Messengei    or   signal   company'     include-    what.    77 

"Most  convenient"  as  to  change  of   name,  531 

"Mutual  or  stock  life  insurance  company"  what  constitutes.  364 

"Natural    gas   company"  includes   what.   77 

"  Navigable  waters  "   what  are,  213 

••  Near  to"  as  to  damages  for  use  of  streets  by  railroads,  191 

"Non-resident"  in  attachment,  proceedings,   16 

"Occupancy"    in   fire    insurance.    417 

"Officer"  controlling  public  road  includes  county  commissioners,  -»04 

"One  desiring  to  send"  a  telegram  in    §  3462.  320 

"One  forwarding"  a  telegram   in   §   3462,  320 

"Operators."   directors  are  not.   within    S   6355,    127 

"Other  appliances"  in  street  railway  ordinance,  296 

"  Owner  "  in  laws  as  to  cruelty,  468 

in  mechanic's  lien  law  as  to  railroad-.  86  « 

in  proceedings  to  compel  appropriation,   619 

"Person"   in   laws   as   to   cruelty.    437 

in    section    24S5    includes    corporations.    43,    113 

"Pipe   line  company"   includes   what.    77 

"Principal    place  of   conducting   business"  same   as    "principal   office."   593 

"Private  property"  property  of  corporation   i-.   11" 

"Privilege"  in  connection  with  -quo   warranto,  628 

"  Profits'"  of  mutual  fire  insurance  company.  420 

"Public  ground"  in   section  3283  does  not    include   canal.   178 

"Railroad  eompanv  "   includes  what.   77 

"Roadbed"  where  unfinished   road   of  railroad   i<    sought  to  be  appropriated,   61b 

••  s, ession"  of  members  of  church,  what   constitutes,  489 

"Sender"  of  telegram   in   seel  ion   3462,   320 

"Sleeping  car  company  "   includes   what.   74 

"  Sound  health  "  in  application  for  insurance.   377 

"  Stipulated  premium   plan  "  of  life  insurance,  402 

"  Stockholder "   as   used    in    section    3258.    158 


756  INDEX. 

(References  are  to  pages.) 
DEFINITIONS  —  Continued. 

"  Street  railway."  295 

"  Street,  suburban  or  interurban  railway  company  "   includes  what,  77 

"Structure"  in  fire  insurance.  417,  436 

"  Superior  officer  "  who  is,  of  railroad  employees,  253 

••  Telegraph  "  includes  telephone,  323 

"  Telegraph  company  "  includes  whom,  68,  77 

"Telephone  company"  includes  whom,  68,   77 

"  Ticket  "  railroad,  263 

"  To  "  in  articles  of  incorporation  of  railroads,  etc.,   100 

"  Torment  "   in  laws  as  to   cruelty,  468 

"  Torture "  in  laws  as  to  cruelty,  468 

"Total  loss"  in  fire  insurance,  417 

"  Union  depot   company "   includes  what,   77 

"  Water  works  company  "   includes  what,   77 

"  Way  "  in  section  3283  does  not  include  canal,  189 

"Year"  in  connection  with  dividends  of  fire  insurance  company,  420 
DEFUNCT  CORPORATIONS.     (See  Dissolution  of  Corporations.) 

Service  of  process  in  case  of,  600 

Suits  against,   600 
DELEGATION   OF   AUTHORITY." 

To  make  grant  to  street  railway,   50 

DEMAND. 

Notice  is  equivalent  to,   in  sale  of  pledged  stock,  148 
DEMAND  NOTES.      (See  Negotiable  Instruments.) 
DEPARTMENTS.     (See  Superintendent  of  Insurance:  Commissioner  of  Railroads  anb 

Telegraphs.) 
DEPOSITS.     (See  Foreign  Corporations:   and  under  various   Insurance  Companies.) 
DEPOT.      (See  Union  Depot  Companies:  Railroads.) 
DEVICES.     (See  Gates:  Inter-Locking  Fixtures.) 
DEVISES.      (See  Bequests.) 

DIRECTORS.      (See  Trustees;   see  also  under  respective  companies.) 
Abandonment  of  office,  presumed  when,  119,  125 
Acts  of,  court  will   set  aside  when,  134 
Action  for  accounting  against,  133 
Address    of.      ( See   "  Names  "   below  ) 
Amendment  to  charter  accepted  by.  when,  93 
Application  of,  for  receiver,    135 

Are  not  "  operatives  "  within  meaning  of  section  6325,  127 
Bind  company  only  when  acting  as  board,  125 
Board  of  —  all  elected  entitled  to  act,   129 
election  called  and  noticed  by,   121 
meetings  of  —  form  for  by-laws  as  to,  672 

inspectors  of  election  appoint  time  and  place  for  first,   120 
minutes  of,  effect  of  approval  of,   126 
president,   secretary  and  treasurer  of.      (See  below.) 
quorum,   majority   constitutes,    125 
effect    of   acts   by   less   than,    125 
form  of  by-laws  as  to,  07 1 
vacancies  in.  filled  how,   128.   129,  666 
form   of  by-laws   as   to,    671 

lack   or  cessation  of  qualifications  causes  when,   128 
'        minority  cannot  fill,   129 

vote  of,  yea  and  nay  required  when;   record  of,  152 
Breaches  of  trust  by,  court  will  set  aside  when,  134 
Compensation   of  —  allowed    when.    126 

form  for  regulations  as  to.  669 
Contracts  between  company  and,  130 

between  companies  having  same,  in  part,  130 
jye  fact0  —  acts  of,  validity,  etc..  of,  how  questioned,  129 
who  may   be  —  one  ceasing  to  own  stock,   128 
ceasing  to  reside  in  state,  129 
failing  to  take  oath   of  office,    125 
persons  elected  without  notice  of  election.  123 
Duties  and  powers  of, — 

as  to  bonds,  notes,  etc..  issuing  and  sale  of,   151,   152 
books,  necessary  and  proper,   130 
by-laws,  may  adopt  what,  136 

mav  not  make   their  control   perpetual,  124 


INDEX.  757 

(References  are  to  pages.) 

DIRECTORS  —  Continued. 

corporate    powers,   business,   property,   etc.,    12h,    LZ»,   211 

contracts  limiting,   validity  of,  I  — ' » 

division   of   capital   among   stockholders,    132 
insolvent   companies,  132 

inspectors   of   election,    \11 

instituting  and  defending  suit-.  130 

meetings  to  amend  articles,  notice  of,  etc.,  208 

to  increase  capital  stock,  etc.,  165 
reduction  of  capital  or  par   value  of  Bhares,    166 
sale  of  corporate  property,    !-'•» 
subscriptions  to  stock,   117,    129,    130 
unissued    stock,    129 
voluntary  dissolution  of  company,  602 
as  trustees  of  dissolved   corporation.      (See    DISSOLUTION   OF  CoBPORATIO 
may  purchase  property  of  company,  when.    130 
power  of  courts  to  enforce,  interfere   with,  etc..    L34,    135 
right  to  exercise,  tested  by  quo   warranto,  not    equity,  626 
Election  or  choosing  of  (see  also  Corporate  Elections),  120,  123 
by  ballot,   120 
certificate  of.   120,  121 

form    for,   666 
corporate   existence  commences  with,   102..    103,   104 
court  may  order,  when  ousted  by  quo  warranto,  631 
cumulative  voting  permitted;  not  obligatory,  120 
forms  for  regulations  as  to,  668 
held  when,  123 

in  ease  of  companies  owning  club-houses.   123 

ousting  of  directors  by  quo  warranto,  631 
regulations  may  provide  as  to,  137 
informalities  as  to,  effect  of,  123 
injunction  against,  lies  when,   124 
inspectors  of  (see  also  Corporate  Elections),  120-123 
candidate  may  be,  121 
evidence  to  set  aside  action  of,   121 
incorporators  are,  at  first.   120.    121 
irregularities  in,  as  to  notice  of  first,  119 
legality  of,  determined  by  quo  warranto,  124,  626 
majority  of  shares  necessary  to,  when,  120 
meetings  for,  123 

in  case  of  first,  118 
notice   of,   123 

in  ease  of  ouster  of  directors  by  quo  warranto,  631,  (<■•'- 
regulations  may  provide  as  to,  137 
proxies  at,  120 
voting  power  of  stock  at.  120 

shares  delinquent  in  payments.  120 

held  or  pledged  by  the  corporation,  120 
who  may  vote  shares  at,  120 
Injunction  against. — 

to  prevent  fraudulent  disposal  of  funds   from  subscriptions.   141 
illegal  or   fraudulent  acts   when,    134 
Knowledge  of,  imputed  to  company  when,  130 
Liability  of, — 

care  required  of,  129 

defenses  in, —  different  terms  of  office,   134 

enforcement  of,  by  creditors. —  ...  ,         ,  -Q 

accounting  for  corporate  property  and  obligations  when.   loS 
application  of  corporate  assets,   159 
complaint    for,    filed    where,    158 
proceedings  under,   158,   159 
effect  of  failure  of  creditors  to  present  claims,  159 
insolvency  of  corporation  necessary  to,  159 
judgment  for,  when,  159 
notice  —  to  creditors  to  present  claims,  etc.,   159 

to  non-resident  stockholders  when,    159 
receiver  of   corporation  —  appointment   of,    158 

prosecutions  by.  in  other  jurisdictions,   159 
unpaid   stock   subscriptions   collected    first,    159 
for  acting  before  required  stock  is  subscribed,  119 
conducting  unauthorized  business,   132 


758  INDEX. 

(References  are  to  pages.) 

DIRECTORS  —  Continued. 

effect  of  acquiescence  of  stockholders,  133 
failing  to  make  or  making  false  report  to  county  recorder,   121 
irregularities  and  informal  acts,   132 

in  organization,  523 
issuing  false  statement  of  condition,    132 
misconduct  resulting  in  forfeiture  and  ouster,  635 
negligence,  mismanagement,  etc.,   132 

statute  of  limitations  runs  when,  132 
stranger  cannot  bring  action,  134 
unauthorized  acts,   127,   523 

violating  provisions  as  to  dividends  or  advertising  amount  of  capital  stock,  170 
to    creditors    and    stockholders,    170 
right   to  enforce,   follows  stock,    133 
to  equitable  owner  of  stock,    133 
stockholders,  132,  170 
Names   and   addresses  of, —  reports  to   secretary  of  state  to  give, — 
in  case  of  corporations  for  profit,  17 
corporations  not  for   profit,   19 
foreign  corporations,   18 
Notice  to.  is  notice  to  company  when,  130,  131 
Number  of,   118 
change  in,  168 

meeting  for,  168 
vote   necessary,    168 
form  of  regulations  fixing,  668 
Oath  of  office  of,    125 

failure  to  take,  effect  of,  125 
form  of,  667 
Ouster  of,  by  quo  warranto,  626,  631 
Preferences  to,  by  insolvent  company,   167,  168 
Proceedings  of, —  construed  how,  when  ambiguous,  126 

notice  of,  are  charged  with,  130 
Proxy,  cannot  vote  by,   125 

Purchase  by  —  of  property  under  foreclosure,  set  aside  when,    151 
Qualifications  of,  128 

form  of  regulations  as  to,  668 
majority  must  be  citizens,   128 
Isolation  of,  to  stockholder,  nature  of,  132,  134 
Reports  to  county  recorder  made  by,  in  case  of  Co.'s  limiting  vote  of  stockholders,  121 

penalty  for  failure  to  make,   121 
Resignation  of,  allowable,   119 

Sale  of  propertv  by,  stockholders'  vote, necessary  when,  95 
Term  of  office  of,   118 

cannot  be  shortened  after  election,  168 
until  successors  elected  and  qualified,  118,  119,  123,  125 
provision  does  not  apply  when,  125 
Unauthorized  acts,  notice  of,  will  not  ratify,  when,  130 
DISCHARGE.      (See  "Employees,"  under  Railroads.) 
DISCRETION. 

Attorney  general, —  mandamus  will  not  control,  as  to  quo  warranto,  629 
Court,  in  quo  warranto,  as  to  forfeiture  of  franchises,  rights,  etc.,  532 
Secretary  of  state  as  to  —  filing  amendments  to  articles,   103 
filing  articles  of   incorporation,    94,   101,   103 
name  of  corporation,   101 
Superintendent  of  insurance,   31 

may  not  exercise  arbitrarily,  426 
not  subject  to  mandamus,  426 
DISCRIMINATION. 

In  case  of  automatic  package  carrier  companies,  323,  320 
electric  light  and  power  companies,  323,  320 
life   insurance   companies,   394 
railroad   companies.      (See  Railroads.) 
DISORDERLY  PERSONS. 

Agents,  etc.,  of  union  depot  companies  may  arrest  when,  314 
DTSPATCH    COMPANY.      (See  Freight  Line   Company.) 

DISSOLUTION   OF   CORPORATIONS.      (See  Banks,   etc.:    Building    and   Loan    Associa- 
tions :   Gas   Companies  :   Manufacturing   and  Mining   Com- 
panies:  Railroad  Companies.) 
Actions  in  favor  of  or  against  company  — 


index.  rsa 

(References  are  to  pa| 

DISSOLUTION  OF  CORPORATIONS-- Continued, 
judgments  enforced  how;  revivor  of,  601 
may  be  prosecuted  by  directors,  receivers,  etc.,  000 

in  own  aame,  601 
not  abated  or  discontinued   by.  <>()() 

i. .     service  of  process  upon,  made  bow,  <<ol 

in  case  of  error  proceedings,  <>oi 
revivor  of   judgments,   60] 
By  judgment  of  forfeiture  in  quo  warranto,  632 

judgment  in,  where  rights,  etc.,  have  been  surrendered  or  forfeited,  632 

trusters    iu    ease   of  — 

appointment,  bond,  powers,  duties  of.  633 
books,  papers,  etc.,  delivered  to,  633 

refusal    to    deliver;     penally.    633 
By   voluntary    surrender   of   dialler,   etc. — 
under  proceedings   in  court   for  — 
appeal  does  not  lie  to,  593 
assignments,  sales,  transfer-,  etc.,  after,  void.  595,  590 

made  before.,   in  contemplation  of,  void,  596 
costs  in,  directors  liable  for,  when,  593 
cross-petition  in,  to  reach  stockholders'  liability.  598 
error  to,  motion  for  new  trial  necessary  in,  598 

order  requiring  officers  to  file  statements  is  nol    reviewable,  598 
judgment  for,  rendered  in,  when,  594 
parties  to.  lienholders  are  proper,  593,  598 
petition   for  — 
i__^   filed  —  by  directors,  when,  592 
by  stockholders,   when.  59-2 

number,   etc.,    accessary,   592 
where,   in  what  court.   593 
hearings  upon,  before  referee  or  master.  594 

notice  and  order  for,  594 
must  show  what..   593 
notice  of  pendency  of,  594 
verification  for,  594 
what  must  accompany,  594 
receiver  under.      (See  RECEIVERS.) 

accounts  of,  subject  to  order  of  court.   59, 
notice  of  intention  to  file,  597 
referred  to   master  or   referee  when.   597 

examination,  report   and  confirmation,  597 
appointment  of,   made  when,   594 
notice  of,  595 
who  eligible  to,  595 
bond  or  security  of;  compensation.  595 
contingent  engagements,   discharged   how.   596 
controversies  as  to  claims   under,  arbitration,   etc..   of.   596 
counsel  fees,  allowance  of,  59(5 
creditors,   duties   of.    upon    appointment    of.    -"''.Hi 
meeting  of,  called  when.   596 
proceedings  at..  596 
distribution  by  —  made   when  and   how,   507 

money  for  certain  claims   to  be    retained   by.   590 
dividends  — 

paid  to  creditors  when,  597 

to  stockholders,   when,    .")(i7 
receiver  subject    to   order  of   couri    a-  to,   591 
unclaimed  paid  into  court,  597 
expenses  of,  payment  of,  596 
powers  and  duties  of.  595,  596 

has  powers  of  trustees  in.  595.  590 
subject  to  orders  of  court,  597 
removal  of,  court  may  make.   597 
unpaid  subscriptions   to  be  collected  by.  595 

action  for,  is  suit  at  law  to  recover  money  judgment,  595 
joinder  of  parties  in,  595 
vacancies   in,  court   may  fill,   597 
vested  with   title  to  property   of.   595 
without   court  proceedings. — 

certificate  of,  filed  with  secretary  of  state  when.  599 


760  INDEX. 

(References  are  to  pages.) 

DISSOLUTION  OF  CORPORATIONS  —  Continued, 
may  be  made  when..  598 

in  ease  of  inactive  corporation,  599 
meeting  of  stockholders  for,  599 

in  case  of  inactive  corporation,  599 
notice  of,  599 
vote  necessary  for,  599 
settlement  of  affairs  upon  — 

directors,  etc.,  are  trustees  for,  when,   599 
bond  required  when,  601 
judgment  liens  continued,  599 
liability  of,  as,  599,  601 
powers  of,  599,  601 

may  have  judgment  on  cognovit  note,  600 
may  sue  in  collective  names,  600 
quorum  of,  lack  of.  power  of  court  to  declare,  and  fill  vacancy,  600 
petition  for  and  order  of  court,  600 
power  of  trustees  so  appointed,  600 
removal   of;    filling  vacancies,   601 
subject  to  control  of  common  pleas  court,  601 
title  to  property  passes  to,  transfer  of,  by,  601 
directors  may  appoint  trustees  for,  602 
powers  of  such  trustees,  602 
removal  of,  stockholders  may  make,  602 
report  of,  to  stockholders,  602 
vacancies  in,  stockholders  may  fill,  602 
Causes  for  —  what  works  — 

benefit  of  stockholders,  etc.,  593 
failure,  abandonment,  etc.,  of  objects,  593 
forfeiture  or  surrender  of  rights  is,  632 
impairment  of  assets  and  stock,  592 
non-user  of  rights  and  franchise  is,  632 
removal  from  state  is  not,  593 
sale  of  property  does  not,  593 
ultra  vires  acts  do  not,  per  se,  work,   106 
Certificate  as  to,   filed  with   secretary  of  state,   20 

fees  for  filing,  20 
Courts,  power  of,  to  order  — 

because  of  by-law  limiting  corporate  existence,  136 
equity  will  not  interfere  in  case  of,  when,  593 
in  absence  of  statute,  at  suit  of  stockholder,  593 
jurisdiction  of  subject  matter  determined  how,   593,   598 
Error  proceedings  in  favor  of  or  against,  601 
prosecuted  in  name  of,  601 
service  of  process  in  case  of.  601 
Fraudulent  conveyances,  creditors  may  require  receiver  to  set  aside,  595 
Liability  of  company  not  terminated  by,  593 

Liability  to,  no  defense  in  action  to  collect  stock  subscription,  139 
Modes  of,   593 

death  of  members,  593 

judgment  of  forfeiture  for  abuse,  non-user,  etc.,  593 
petition  of  directors,  stockholders,  etc.,  592 
sale  of  all  property  is  not,  593 
surrender  of  franchises,  593,  598 
DISTRICT    AGRICULTURAL   SOCIETIES.      (See   Agricultural   Societies  —  District. ) 
DITCHES,  DRAINS,  ETC.      (See  Railroads.) 
DIVIDENDS.      (See  also   under  respective  companies.) 
Actions  for  —  are  actions  at  law,  170 

barred   when,    170 
Advertising  unearned,  etc.,  170 
Attachment  of  stock,  effect  upon,  149 
Bequest  of,  includes  stock  when,   148,  169 
Consist  of  what;  meaning  of  term,  169 
Declared  only  from  surplus  profits,  169 
surplus  profits  ascertained  how.  170 
unpaid  interest  not  to  be  included  in  profits,  170 
Earnings,  title  to  is  in  company  until  declaration  of,  169 
Guaranty  of,  by  third  persons,  not  within  statute  of  frauds  when,  170 
Lien  of  company  on,  169 
On  lost  or  destroyed  certificates,  re-issued,  146,  147 


[NDEX.  7G1 

(References  arc  to  pages.) 

DIVIDENDS  —  Continued. 

On  preferred  stuck  — 

articles  of  incorporation  may  provide  as  to,  94,  96 

guaranty  and  security  of,  '.».),   Hi!) 

rate  of,  96,   L66 

may  be  cumulative,  '.Hi 
Payable   to    whom  —  equitable   owner    when,    169 

follow  the   stock   when,   170 

legal  owner  entitled  to,  143 

owner  of  record,  109 
Payment  of  —  injunction  against,  will  not  lie  when,  1G0 

wrongful,   170 
Premiums  on  sale  of  increase  of  capita]  stock  is  not.   166 
Provisions  as  to,   liability   of  directors   for   violating,    170 
Kate  of.     (See  "On  preferred  stock,"  above.) 
Scrip  dividends,   109 
Security  for,  170 

Stock  dividends  —  not  capital  when,   109 
Taxation  of,  169 

Transfer   of  stock   cannot  reserve,    143,   1G9 
DOCK  COMPANIES. 

Powers  of,  564 
DOING  BUSINESS  IN  STATE.      (See  Foreign  Corporations.) 
DOMICILE.      (See  Corporate  Domicile.) 

DOWER. 

In  lands  taken  by  appropriation,  186 

DRAINS.      (See  Railroads.) 

DRAW  BRIDGES.      (See  Bridges:  Railroads.) 

DWELLING  HOUSES. 

Appropriation  of  land  upon  which  situated  — 

cemetery  associations   cannot  make  when,   357 
in  cities  of  1st  class,  1st  grade,  357 
2d  class,  3d  and  4th  grades,  357 
Cemeteries  not  to  be  located  within  what  distance  of,  when  351 
in  cities  of  2d  class,  3d  and  4th  grades,  357 
provisions  not  applicable  to  certain  cemeteries  near  cities  of  1st  class,  1st  grade,  357 

EARNINGS. 

Gross.      (See  Gross  Receipts.) 

Title  to,  is  in  company  until  set  aside  for  dividends.  169 
EDUCATIONAL,  ETC.,  CORPORATIONS.     (See  Charitable  Trust   Companies;    Schools, 

Colleges,  £tc.) 
EJECTMENT. 

Possession  of  streets  recovered  by,  189 

ELECTIONS.     (See  Corporate  Elections.) 

ELECTOR. 

Superintendent  of  insurance  must  be,  31 

ELECTRICITY. 

Use  of,  as  motive  power, —  by  railroad  companies,   210 
by   street  railway  companies;   ground   circuit.   296 

ELECTRIC  LIGHT. 

Gas  companies  may  amend  article  so  as  to  furnish,   103,  349 

ELECTRIC  LIGHT  AND  POWER  COMPANIES. 

Agents,  employees,  etc.,  of.      (See  "Officers,"  below.) 

Agreements  with   other  companies.   323,   310 

Appropriation  of  property  by.      (See  Appropriation.) 

Auditor  of.      (See  "  Officers,"  below.) 

Books  and  papers  of  —  examination,  etc..  by  state  board  of  appraisers  and  assessors,  ?«,  MJ 

Capital  stock  of  — 

investments  in,  by  safe  deposit  and  trust  companies,  when.  514 

by  saving  and  loan  associations  doing  safe  deposit  and  trust  business  in  cities  of 
1st  class.  3d  grade,  and  2d  cla>s.  l>t  grade,  515.  514 
value  of,  dissenting  stockholders  may  demand  when.  54 
Character  and  nature  of  company,  report  to  state  auditor  must  give.  77 
Charges  for  service.      (See   "Service"  below.) 
Consolidation  of  —  laws  as  to  railroads  apply  to,  43,  323 


762  INDEX. 

(References   are   to   pages.) 

ELECTRIC  LIGHT  AND  POWER  COMPANIES  —  Continued. 
with  gas  or  electric  light  companies,  43,  40,  323 
Construction  of  lines, — 

along  public  roads,  etc.,   authorized,  323,   3 If),   325 
are   additional  burdens,  324 
by  means  of  posts,  piers,  etc.,  324,  315,  325 
consent  of  abutting  owner  necessary,  324 

of  municipal  authorities  necessary,  324,  325 
either  above  or   below   surface,   324 
penalty  for  using  without,  324 
must  not  incommode  public,  323,  315 
regulations  as  to,  municipalities  may  make,  324,   325 
trees,  cutting  and  trimming.  316 
must  not  interfere  with  other  lines,  323,  317 

telegraph  or  telephone  lines,  325 
poles,   etc.,   erected   unlawfully,   ordered   down,   when,   316 
over  private  property. — - 

appropriation  of  property  for.  323,  317 

in  case  of  lands  of  corporations,  323,  317 
railroad  companies,  323,  317 
buildings,    etc. —  entering  or    using  without    consent,    323,   317 

erecting  poles,   etc.,   near  to,   323,   317 
consent   of   owner  necessary,   when,   323,    317 
location    of  poles,   etc.. — 

change  of,  when  corporation  owning  land   needs  it,   323 

appropriation  of  property  to  make,  323 
designation  of  new  location,  323 
notice   of,   to   company,   323 
trees,  etc.,  injuring  or  destroying  fruit  or  ornamental,  323,  317 
right  vi  way  for,  appropriation  of,  323,  317 
wires,  cables  etc.,  of  —  insulation   of,   325 
over   railroads.      (See  Railroads.) 

to  be  laid  in  subways,  when,  in  cities  1st  class   1st  grade.   325 
Definition   of  —  includes   what,   76,   77 

Excise   tax  on. — amount,  levying,  collection,  etc.,   of,   78,  80 
exempted  from  provisions  of  "  Willis  Law."  20 
tangible  property  not  exempted  from  taxation.   80 
General  manager.      (See  "Officers,"  below.) 
Gross  receipts,  report  to  state  auditor  to  show  what,  78 

Instruments,  machinery,  poles,  wires,  etc.,   of,  interfering  with  unlawfully,  323,  322 
Lease  or  sale  of  plant,  franchises,  etc.. — 

to  gas  companies  in  cities  of  the  first  class,  first  grade,  350 
to  street  railway  company,  authorized.  54 

stockholders, —  meeting  of.  to  ratify,  notice,  proxies,  vote  required,  54 
rights  of,  refusing  assent  to,  54 

compensation  for   stock.   55.   206 

arbitration  as  to  value;  basis  cf    55,  20(5.  207 
refusal  to  arbitrate,  or  receive  amount  of  award,  206,  207 
notice   of    refusal    of    assent,    55 
License  to  others  to  use  poles,  etc.,  when,  316 
Lines  of  —  joint  ownership  of,  323,  317 

leasing  of,  323,   317 
Managing  agent  —  general  manager  —  chief  officer   in  state.      (See  "Officers,"  below.) 
Meters    of  —  charges   for,   municipalities    may   regulate.    40 
injuring,   interfering  with,   etc.,  322 

inspection  and  testing;   charges  for;  council  regulates.  42 
Mortgages   of  —  record    of,    151 

Municipal  lighting  of  streets,  public  buildings,  etc..  contracts  for.  43 
certain  prior  contracts  validated.  325 
term  of.  43,  328 
Name  of  —  report  to  state  auditor  must  give.    77 
Officers  of  —  duties  and  powers  of.  as  to  reports.  77 

examination  of,  by  state  board  of  appraisers  and  assessors,  79 

refusing  to  testify;   penalty,  80 
nnmes  and   address   of.   reports  to  state   auditor  to  give.   77 
Orsrani/ation  of.  report  to  state  auditor  must  give  state  and  laws  of,   77 
Powers  of.    323.    316.   317.   324 

to  construct,  own,  use,  etc.,  lines.  323,  316.  324 
lease,  etc..  other  lines,  etc..  323.  316.  317 
sell,  furnish,  etc.,  electric  light  and  power.  324 


INDEX.  763 

(References  are   to  pages.) 

ELECTRIC  LIGHT  AND  POWER  COMPANIES  —  Continued. 
President  of.     (See  "Officers,"  above.) 
Price  for  service.     (Sec  "Service,"  below.) 

Principal  office  of,  report  to  state  auditor  to  give  Location  of,  77 
Repairs  of  structure,  lines,  etc., — 

when   on  lands  of  corporations    323 
Corporation    may   make,    when.   32.'J 

notice  to  company  to  make,  323 

Reports  of  to  state  auditor  —  blank.-   for,  auditor   furnishes,   78 

requirement  s  as   to,   77 
Right  of  way  —  appropriation  of.  over  lands,  to  construct,  repair,  etc.,  323,  317 

exclusive,  unlawful  to  contract    for,  323,  317 
Secretary.      (Sec  "  Officers,"  above.) 
Sections   3454   to  3460  apply   to,  323 
3401  does  not  apply  to,  323 
3462  to  3471   apply   to,   323 
Service   by  —  discrimination   in,    323,    320 
price  for,  40 

municipalities  cannot  fix  in  agreement  for  use  of  street-.  323,  318,  319 
may  regulate,  how  and  when,  40,   41 
Streets,   alleys,    highway,  etc..   use  and   occupancy  of.      (See  "Construction,''  etc.,  above. 
Superintendent.      (See   "Officers,''    above.) 
Treasurer.      (See  "  Officers"  above.) 
ELECTRIC  LIGHT  PLANT. 

Is  part  of  railroad,  when,  85 

Ship   canal   company  may  acquire,  etc.,   310 

Street  railroad  company, — 

in   Mansfield  may   construct  and    operate,   when,   308 

may  lease  or   purchase,   from  electric  light  and  power  company,   when.   54 
ELECTRIC  RAILROADS.     (See  Street   Railroads.) 
Actions  against,  brought  where,  580 
Consolidation  of,  with  inclined  plane  and  street  railway  companies,  53 

laws  as   to  railroads   apply   to.   53 
Crossings  over  railroads.      (See  Railroad  Crossings.) 
Exempted  from  provisions  of  "  Willis  Law,"  20 
Liens  on.      (See  Mechanics'  Lien.) 
Service  of  process  on,   582 
ELECTROLYSIS. 

Liability   and   remedy,    290 
ELEVATOR  COMPANIES.      (See  Ship  Canal  Companies.) 
Capital   stock  of, — 

railroad  company  may  subscribe  to  and  hold  when,  504 
liability  of,  as  a  stockholder.  564 
limitations  as  to  amount.  564 
taken  in   name  of  president,  504 
Powers  of,  504 

cannot    deal    as    buyers    or    sellers,    564 

to   do  business  of  general   storage,    warehousemen   and   forwarders,   504 
erect,  purchase,   etc..   necessary  buildings,   machinery,  etc.,   504 
purchase,  etc..  real  estate  for   its  own  use.  5G4 
receive,   store,  forward,  etc..  grain.  564 
Subject  to  laws  governing  individuals.  504 
EMINENT  DOMAIN.     (See  Appropriation.) 
EMPLOYEES.      (See  Railroads;    see,   also,   under   various   companies.) 

Employers,    insurance    of.     (See    Insurance    Co.'s  —  Accident    and    Health.) 
Mutual    benefit    societies,    relief    associations    of.      (See    Insurance    Companies  —  Life: 
Railroads.) 
fees  for  filing  articles  of,  9 
ENDOWMENT    FUNDS.      (See    Schools,    Colleges,    etc.;    Religious    Societies.) 
ENDOWMENT  STOCK.      (See  Capital  Stock.) 
ENGINEER  — CIVIL.      (See   Railroads.) 
ENGINEER  — LOCOMOTIVE.      (See  Railroads.) 
ENGINES.      (See  Railroads.) 
ENTERTAINMENTS. 

Grounds  for  —  injuring,  trespassing  upon,  carrying  away  fruits,  etc..  402.  463 
Power   of   railroads   to   aid,    177 
EQUALIZATION.      (See  State  Board  of  Equalization,  etc.) 


764  INDEX. 

(References  are  to  pages.) 

EQUIPMENT.     (See  Railroads.) 
EQUIPMENT  COMPANIES    (R.  R.) 
Definition  of;   includes  what,   71 

Examinations,  etc.,  by  state  board  of  appraisers  and  assessors  of  — 
of  agents,  employees,  officers,  etc.,  of,   73 
of  books,  papers,  etc.,  73 
penalties  for  refusing  to   testify  in,   73 
Excise  tax  on;  amount,  levying,  collection  of,  etc.,  72,  73 
exemption  from  provisions  of  "  Willis  Law,''  20 
service  of  process  to  collect,    73,    74 
Reports  of  to  state  auditor, — 

duties  and  powers  of  officers,  etc.,  as  to,  71 
blanks  for,  auditor  prepares  and  furnishes,  72 
made  by   whom,   when,   under  oath,   71 
must  show  what  as  to  —  capital  stock,  71 
cars  of,  72 

character  and  nature  of  company,  71 
name  of  company,  71 

officers,  etc.,   of  —  name   arid   address  of,   71 
organization   of,    laws    and    state,    71 
principal  office,  location  of,  71 
real   estate,    72 
route  or  lines  of,  72 
Taxation  of.      (See  "Excise  tax,"  above.) 

exempt  from   provisions  of   section  2744  as  to,   72 
real  estate  of,  taxed  locally,  72,  73 

ERRORS  AND  OMISSIONS. 

In   instruments   of  writing  or   proceedings. — 

action  to  correct,  when  instrument,  etc.,  is  matter  of  record,  603 
judgment  in,  effect  and  record  of,  603 
petition  in,  603 

filed  by  whom  in  court  of  common  pleas,  603 

in  what  county,  603 
service  of  process  upon,  603 
court  to  give  effect  to  intention,  603 
ERROR  —  PROCEEDINGS  IN. 

In   appropriation.      (See  Appropriatiox.) 
Stockholder  may   prosecute  against  corporation,   150 
In  proceedings  for  dissolution,   598 
ESCROW. 

Deed  to  right  of  wTay  of  railroad  may  be  held  in,  188 
ESTOPPEL, 

Who  subject  to, — 

corporation   is,  as  to  —  its  own   existence,   99 

power  to  purchase  land  ordered  sold  in  error  proceedings  after   acquiescing  in 

confirmation,   111 
validity  of  bond  issue,  when,  198,  200 
corporation  is  not,  as  to  ultra  vires  acts  although  ratified  by  stockholders,  107 
foreign  corporation  may   be,  by  assuming  defense  of  an  action,   16 
licensee  to  use  land  is,  as  to  power  of  company  to  own.  111 
member  of  corporation  is,  as  to  adoption   of  by-laws,  when,  136 
one  bringing  suit  in  one  capacity  is  not,  as  to  suit  in  another  capacity,  133 
one  dealing  with   corporation   is,   as  to  corporate  existence,   15,   99 
pledgor  of  stock  is,  as  to  title  of  stock,  when,  148 

stockholder  is,  as  to  corporate  existence,  in  collateral  proceedings.  99 
vender  of  real  estate  is,  as  to  want  of  power  of  company  to  purchase.  Ill 
EXAMINATIONS,    EXAMINERS,    etc.      (See   under   respective    companies.) 
EXCHANGE. 

Power  to  sell  stock  does  not  include,  148 
EXCISE,   FRANCHISE   OR   PRIVILEGE   TAX.      (See  under  various   companies,) 
Amount,   levying,   collection   of,  etc., — 
in  case  of  corporations  for  profit,  18 
certain  corporations  excepted,  20 
in  case  of  corporations  not  for  profit,  19 
in  case  of  foreign  corporations  under  section  148c,   10,   11 
additional  to  tax  under  section   148c,  18 
certain  companies  excepted  under  section   148c,   11 
Certificate   of   compliance  with   provisions   as  to,   19 


INDEX.  765 

(References  are  to  pages.; 

EXCISE,  FRANCHISE  OR  PRIVILEGE   TAX  — (  ontinued. 

Exemption  from;  retirement  from  business  does  aol   work,  20 

certificate  as  to  necessary,   20 
Failure  to  pay,  etc.;   remission  of  penalty,  etc.,    19,   20 
Hearings  as  to,  20 

In  case  of  special  companies.     (See  Electbic  Light,  Equipment,  Expbess,  Fbatkbnai, 
Beneficiary  Associations,   Fbeight   Lines,  Gas,  [nsubance 
Companies,  Messenqeb  ob  Signal,  Nati  bal  <..\s.  Pipe  Line, 
Ratlboad,  Sleeping  Cab,  Stbeet,  Sububbah   <m  [ntebubsah 
EIailboad,  Telegbaph,  Telephone,  Qniob  Depot,  and  Wateb 
Wobks  Companies.) 
Municipalities  not  required  to  pay,  81 
Raid  into  state  treasury,   11,  19,  74,  76,  81 
Reports,  etc.,   for  purposes  of.      (See  Reports.) 
EXECUTION  —  WRIT  OF. 

Against  railroad  property  in  use,  199 

property  of  consolidated  railroad  for  debt  of  old  company,  276 
Exemptions  from.      (See  "what  not  subject  to,"  below.) 
Mortgage  on  personal    property  of  railroad  —  effect  of,  as  to,   199 
injunction  against  sale  of  portion  of  property,   199 
refusal  of  sheriff  to  levy  on;  damages,  1!)!) 
remedy  of  judgment  creditor  in  case  of,  199 
Proceedings   in  aid  of  —  bonds  of  railroad  not  subject  to,  before  delivery,    199 
Stay  of,  none,  in  case  of  — 

demanding  toll  greater  than  allowed  by  law,  333,   334 
evading   payment   of  toll,   330 

gatekeeper  "unreasonably  detaining  traveler  on  toll  roads,   333,   334 
What  is  subject  to, — 

animals  unlawfully  driven,  permitted,  etc..  in  railroad  enclosure,  638 
franchises  of  turnpike  or  plank  road  companies,  343,  344 
right  of  plank  road  or  turnpike  company  to  take  toll,  344 
shares  of  stock  in  corporation,    147,   149 

situs  of,   for  purpose  of,   149 
turnpikes  and   plank   roads,   343 
What  not  subject  to, — 

bonds  of  railroad   company,  before  delivery,   199 
lands  of   cemetery   associations,   356 

in  counties  containing  city  of  1st  or  2nd  class.  359 
lands  of  companies  for  protecting  and  preserving  dead  bodies,  573 
lots   in  cemetery,    39,   358 

proceeds   of  conditional   subscription  to  railroad,   when,   203 
and  property  purchased  with  same,  203 
EXECUTIVE  COMMITTEE. 

Powers  of,   137 
EXECUTORS  AND  ADMINISTRATORS. 

Action  by,  for  damages  from  use  and  occupancy  of  street  by  railroad.  191 
Liability  of,  for  losses  and  expenses  of  mutual  insurance  company,  421 
Powers  of,  as  to  sale  of  stock,  1*3 

Rights  of,  as  to  re- issue  of  lost  or  destroyed  stock  certificates,  147 
Safe  deposit  and  trust  companies  may  act  as,  514 
EXEMPTIONS.      (See  Attachment:   Execution:  Taxation.) 
EXISTENCE.     (See  Corporate  Existence.) 
EXPERIENCE  TABLES.      (See  Insurance  Companies  — Life.) 
EXPLOSIONS.      (See  Accidents:   Insurance  Co.'s  — Fire.) 
EXPRESS  COMPANIES.      (See  Common  Carriers:   Common  Cabbies  Companies.^ 

Agents,  etc.,  of.      (See  "  Examinations,  etc.,"  "  Managing  agent,     "  Local  agent,     oeiow.j 
pay  taxes,  when,  82 

unlawful  to  act  as,  if  taxes  not  paid,  83  

Agreements,   contracts,   leases   with,   railroad   company   must   furnish  copies   to   commis- 
sioner of   railroads,   29 
Definition  of  —  includes  whom,  68,  77 
Employees    of  — mutual    benefit    societies    of.      (See    Insubance    Companies— Ufe.) 

provisions  of  sections  3630a  to  3630f,  3631,  do  not  apply  to.  when.  393 
Examinations,  etc., — 

of  agents,  employees,  officers,  etc..  of. — 
by   commissioner   of   railroads.   29 
by  state  board  of  appraisers  and  assessors.  70,  79 
refusal  to  answer,  penalty,  etc.,  70.  80 
of  books,  papers,  etc.,  by  state  board  of  appraisers  and  assessors.   70.    F9,  80 


766  INDEX. 

(References  are  to  pages.) 

EXPRESS  COMPANIES  —  Continued. 

Excise  tax  on  —  amount,  levying,  collection,  etc.,  of,   78,  80 
exempted  from   provisions  of  "  Willis  Law,"  20 
tangible  property  not  exempted   from  taxation,  80 
Foreign  companies,   section   148c  does  not  apply  to,   11 
Freight.      (See  Freight.) 
Local  agent   of.      (See  "Examinations,  etc.,"  above;   ''Reports"  below.) 

is  managing  agent  for  service  of  summons  on,  when,  583 
Managing  agent  —  chief  officer  in  state.      (See  "Examination,  etc."  above;   "Reports," 
below. ) 
who  is,  for  service  of  summons  on,  583 
Penalties   against  —  are   subject   to   provision  of   sections   2781    to  2785   as   to   taxation, 

etc.,  70 
Railroads   not  to  transact   business   with   or   for,   when,   83 
Reports  of,  to  state  auditor, — 

Dlanks  for,  auditor  furnishes,  etc.,  69,  78 
duties  and  powers  of  officers,  etc.,  as  to,  68,   77 
made  by  whom,  when,  under  oath,  68,  77 
must  show  what  as  to, —  capital  stock,  68,   77 
character  and  nature  of  company,  68,   77 
gross   receipts.   68,   77 
name  of  company,  68,   77 

officers,   etc.,  of, — name   and    address    of,   68,   77 
organization  of,  laws  and  state  of,  68,  77 
personal  property  of.  68 
principal   office,   location  of.   68,   77 
real   estate  of,  68 

route  or  lines  of,  68 
Service  of  process  upon,   583 

Stockholders  of,  or  parties  interested  in,  ineligible  to  office  in  railroad  company,  212 
Taxation  of.      (See  "Excise  tax,"  above.) 

not  exempt  from  provision  of  section  2744  as  to,   61) 

EXPRESS  TRAINS.      (See  Railroad  Trains.) 
EXPULSION. 

Of  members  of  corporation, — bydaws  as  to,  136 
causes  for,   114,   115 
form  for  regulation  as  to,  671 
power  of  corporation   as  to,   114 

cannot   be   delegated,    114 
proceedings  for,  requirements,  etc.,  114 

irregularities  or   fraud   in,    115 
remedies  for,  injunction  not  mandamus,   114.    115 

waiver  of  right,  what  is'eiTect  of,  etc.,  115 
threatened,  injunction  will  not  lie,  115 
EX-UNION  SOLDIERS.      (See  Soldiers.) 

FACTORIES. 

Companies  to  construct  and  maintain  buildings  for.      (See  Building  Companies.) 

FACULTY.      (See  Schools,  Colleges,  etc.) 
FAIRS.      (See  Agricultural  Societies.) 

Constables  to  keep  peace  at.      (See  Constables),  460 
Exhibits    at.    removing,    disturbing,   etc.,   432 
Liquors,   sale  of,   within  certain  distance  of,   460,   461 

articles  used  in  connection  with,  bound  for  fines  and  costs,  461 

seizure  and  disposition  of,  461 
persons  selling,   arrest  of,  without  warrant,  460 

FAIR  COMPANIES.      (See  Agricultural  Societies.) 
Agricultural,   for  profit,   organized  under   §   3235,   94 
Corporations  not  having  capital  stock  may  hold  stock  in,  when,  395 

elect  directors  of,  etc..  when.  395 

liability  of,  as  stockholders,  395- 

FAIR  GROUNDS. 

Injuring  etc.,  buildings,  trees,  etc.,  trespassing,  etc.,  462,  463 

FARE,  RATES  OF.      (See  Railroads;  Street  Railway  Companies.) 
General  assembly  may  alter  or  regulate,  when,  2 

FARM   BUILDINGS. 

Cemetejy  associations  cannot  appropriate  land  having,  when,  357 


INDEX.  707 

(References  arc  to  pages.) 

FARMERS'    INSTITUTE   SOCIETIES. 
Aid  to,  from  county,   U'»  1 

allowed  for  holding  institute,   when,  461 
amount  of,  computed  bow,  Limitations,    161 

when  more  than  one  Bociety  holds  meeting,   Mil 
certificate  of  secretary  of  state  board  of  agriculture  necessary,   161 
must  show    \\  hat,   1-62 
presented    to    county    auditor.    461 
county  auditor  to  issue  warrant  for,   161 
treasurer  to  pay  from  county   fund,  461 
Become  body  corporate,  when,   Mil 

Constitution  and  by-laws  of,  must,  conform  to  rules,  etc.,  of  stale  board  of  agriculture,  161 
Delegate   from    to   state   hoard   of  agriculture,   448 
Expenses   of, — 

aid  from  county  not  to  exceed,  461 
detailed  statement   of,   filed   with  county  auditor,  462 
published    with    lectures,   462 
salaries   of  officers   not  to  be  included.   462 
Incorporators   of, —  number   of,    residence   of,   4<il 
Institute   meetings   under   state   board   of   agriculture, — 
how  many  societies   may  hold   in  county,  461 
lecturers  for,  slate  hoard  to  furnish,  4()'2 

publication  and  distribution  of  lectures,  462 
powers  of  state  board  as  to  number,  time  and  place  of,  461 
Objects  of,  461 
Officers  —  election  of,  necessary  1o  becoming  body  corporate,  461 

FARM   LABORERS'   ASSOCIATION. 

Charter  of,  forfeiture  of,  for  failing  to  make  reports,  565 
Consolidation   with   unincorporated   association,   565 

liability  of  members  for  debts  of  unincorporated  company,  565 

name,  title,  privileges  of,  565 

resolution  and  vote  for;  record,  etc.,  565 
Funds   of,   invested  how,   564 

articles  of  incorporation  may  provide  as  to.  565 
Libraries,   power    to   maintain,   etc.,    ">»>."> 
Loans  of, —  amount  and   time  of;   limitations   as  to,  565 

interest  on,  rate  of,   565 

none  to  trustee   or  officers,  565 
Museums,   power   to  maintain,   etc.,   565 
Objects  and  purposes  of,  564 

Real  estate,  power  to  hold;   limitations  as  to,  564 
Reports  of,  to  attorney-general,  565 

made  when,  by  whom ;    show  what,  565 

neglect  to  make;  penalty,  565 

FAST  FREIGHT  COMPANIES.     (See  Freight  Line  Companies.) 

FEES. 

Disposition  of —  paid  into  state  treasury, — 
by   secretary   of   state,    10 

in  case  of  certificate  of  authority  of  foreign  company  to  do  business,   13 
excise,  franchise   or   privilege?  tax,    11,    19.   74.   76,    81 
service  of  process  upon,   as  agent  of  foreign  company.    13 
by  superintendent  of  insurance.  31,  32,  35 
For  acting  as  agent  of  foreign  corporations  for  service  of  process,  13 
For  affixing  seal,  by  secretary  of  state,   10 

by   superintendent  of  insurance,   35 
For  certificates, — 

authorizing   to   do   business. — 

in  case  of  foreign   companies  under  §   148d.   13 
insurance   companies.    35 

foreign  assessment  life  insurance  companies,  388 
making  under   seal — by  secretary   of   state.    10 
by  superintendent  of  insurance.  35 

in  case  of  foreign  assessment   life   insurance   companies,   38S 
For  certified  copies  of, — 

amendments  to  articles  of  incorporation.  103 

in  case  of  schools,   colleges,  etc.,  481 
articles  of   incorporation.    10 

in  case  of  schools,  colleges,  etc..  481 
certificate  of  authority  to  do  business,  of  insurance   companies,   35 


768  INDEX. 

(References  are  to  pages.) 

FEES  —  Continued. 

For   copies,  making,  etc. — by  secretary  of  state,    10 

bv  superintendent  of  insurance,  35 
For  doing  business,  etc.     (See  Excise,  Franchise  or  Privilege  Tax.) 
For  tiling,  recording,  etc. 

acceptance  of  provisions  of  revised  statute  by  companies  created  prior  to  1851,  9 
amendments  to  articles  of  incorporation   (see  "Certificates"  below),  9,  103 

in  case  of  schools,  colleges,  etc.,  481 
articles  of  incorporation,  9 

in  case  of  benevolent  associations,  9 
building  and  loan  associations,  9 
consolidation  of  corporations,  9 

certificate  of,  by  purchase  of  stock,  etc.,  277,  9 

in  case  of  safe  deposit  companies  and  savings  and  loan  associations,  516 
corporations    (not  mutual)   not  for  profit,  9 
literary  societies   or  associations.   9 
mutual  corporations,  not  for  profit,  9 
mutual  insurance  companies,   etc.,  9 
relief  associations   of  employees,   etc.,  9 
religious  societies,   etc.,   9 

schools,  colleges,  etc.,  whose  charters  are  not  on  file,  481 
secret  societies,  9 
certificates  —  generally,    9 
as   to   capital    stock, — 
increase  of,  9 

in  case  of  building  and   loan  associations,  9 
reduction  of,  9 
subscriptions  to,  10 
as  to  change,  extension,  etc.,  of  —  domicile,  9 
lines,  termini,  etc.,  of  railroads,  9 
name   (copy  of  decree  of  court),  9 
purposes,   objects,   etc.,   9 
as  to  compliance  with  law,  by  insurance  companies,  36 
as  to  dissolution,   abandonment,  etc.,   of   charter,   20 
as   to   elections,   9 

as  to  lien  of  mutual  fire  insurance  companies  for  premium  notes,  429 
charter    (copy  of)    of   insurance  companies,   35 
contracts  for*  conditional  sales  to  railroads,  267 
deed  of  settlement   (copy  of)   of  insurance  companies.  35 
name,  etc.,  of  manufacturers,  bottlers,  etc.,  of  beverages,  10 
papers,  etc.,  generally  by  secretary  of  state.   10 

as  to  incorporation,  annexation,   etc..  of  municipalities.   10 
reports,   statements,   etc.,   of   insurance   companies,   35 
For   license   to    do   business.      (See   "Certificates,"    above;    also   Excise,    Franchise    or 

Privilege  Tax.) 
For  making  and  forwarding  checks  on  account  of  securities  deposited  with  state  by  for- 
eign insurance  companies,  31 
For  prosecuting  actions, — 

for  collecting  excise,  etc.,  tax  from,  73,  76,  80 

for  cruelty  to  animals,  etc.,  468 

for   damages   for   usurping  office,   franchise,   etc.,   632 

for  violation  of  provisions  regulating  railroads,  229 

as  to  crossings  over  highways;   approaches,  side  walks,  etc.,  229 
employment  of  locomotive  engineer  addicted  to  drink,  etc.,  249 
heating  baggage,  express,   mail,   passenger  cars,  239 
waiting  rooms  at  stations,  215 
to  appropriate  property,  616 

to   dispose   of  property   of   real   estate   corporations,   94 
to  enforce  ditches   along  railroad  tracks,  etc.,  237 
to  enforce  stockholders'   liability,    163 
For  valuation  of  policies  of  life  insurance  companies,  35 
Of  officers.      (See  under  the  various  officers.) 
Payinent  of  under  protest,   15 
FELLOW    SERVANTS.      (See    "Employees,"   under    Railroads.) 

FELONS.     (See  Criminals.) 

FELONY 

Embezzling,  etc.,  funds,  issuing  or  assigning  paper,  falsifying  books,  reports,  etc.,  of 

bank  is,   542 
Interfering,  etc.,  with  electric  wires,  poles,  etc.,  is,  when,  322 


INDEX.  W9 

(References  arc  to  pages.) 

FELONY  —  Continued. 

Making   inaccurate    measurements   and    estimates   as    to   construction   of   canals,    plank 
roads,  roads,  railroads,  etc.,  by  engineer   is,  H'J 
FENCES.     (See    RAILROADS.) 
FERRY  COMPANIES. 

Rowers  of,  505 

Subject  to  laws  governing  individuals,  505 
FIDELITY    GUARANTY    COMPANIES.      (See    [NSUBANOE    Co.'B  —  ACCIDENT,    ETC.:     I.Nsm- 

ance    Companies  —  Fidelity  Guaranty:    Insurance  Co.'s — 
other  than   Life:   Insurance  Co.'s —  Title  Guaranty.) 

FIDUCIARY  RELATIONS. 

Directors  and  company  occupy,    L'iO 
FIRE  INSURANCE  COMPANIES.     (See  Insurance  Companies  -  Liuk.) 
FIREMAN.      (See    RAILROADS.) 
FIREMEN'S  RELIEF  ASSOCIATION. 

Assessments   upon    members,    500 

Directors  of  — number  of,  from  each  fire,  etc.,  company,  505 
separate  election  of,  by  each   lire,   etc.,  company.  365 

Funds  of,  loans  of.  on  bond  and  mortgage,  500 
interest  upon,   500 

Members  of.  entrance  fee  of,  566 

Objects   and   purposes   of.    500 

Officers   of  —  election,    duties,   etc.,   of,   566 

Powers  of  — to  acquire,   hold,   etc.,   property,  566 
to  loan  funds.  566 

Relief  of  disabled  firemen,  etc.,  regulation-:  as  to,  566 

FISHERY    COMPANIES.  . 

Navigable   streams,   etc.,   what   not  subject   to  provisions  as  to,  566 


Trespassing   upon    property   of;    penalty.    560 
Unauthorized  fishing  in   fisheries  of;    penalty,   560 


FIXTURES.  ,_      „ 

Intel -locking  for  railroad  crossings.      (See  RAILROAD  (  ROSSINGS.) 
What  are  — stone  piers  of  railroads.    186 

FLAGMEN,  GATEMEN,  ETC.     (See  railroads:   Railroad  Crossings.) 

FOREIGN   CORPORATIONS.      (See  under   respective    companies.) 
Actions  against, — 

for  not  complying  with   section    l!Sc,    11 

quo  'warranto  lies,   when,   14,   627 

in   U.   S.   courts  —  plaintiff   need  not  be  citizen.    10 
service  of  process  on  agent,   10 
Actions  by, — 

cannot  bring  unless  complying  with  sections  148c,  148d,  11.  12,  14 

capacity  to  maintain  need  nol  be  set  out,  15 

compliance  with  local   laws  need  not  be  alleged,   15 

defenses   in  —  failure    to   comply    with    local    laws    is  matter   of.    15 

failure  to  comply  with  provisions  of  §§  148c,  148d  is  not.  in  criminal  cases,  15 
organization  in  foreign  state  to  evade  our  laws  is  not.  1  I 
Agents, — 

effect  on.  of  revocation  of  authority  to  do  business.   ?,4 

for  service  of  process  against  company,  12 
secretary  of  state  acts  as.  when,  13 

"managing" — meaning  of  term.   16.   5R3 

name  and  address  of.  report  to  secretary  of  state  must  give.   10.   1° 

penalty   for  doing  business  before  compliance  with   sections  148c,   148d,   11.   13 

service  of  process  on.      (See  Sf.rvtcf.  of  Process.) 
Appearance  of.  voluntary,  what  constitutes,  10 
Attachment   against,  because   of  non-residence. — 

none   upon  compliance  with   sections    148c.   148d,   11,   13 
constitutionality  of  provision.  12 
Books,  etc..   of,  stockholder  may  inspect.   ]5 
Citizenship   of,   14 
Contract's   of,   not  complying  with   §§    148c.   14Sd. — 

are  not  void;   right  of  action  suspended,  14 

cannot  sue  on.  11,   12 
Charter,  copy  of  filed   with   secretary  of  state.   12 
Capital  stock  of.  what  must  be  stated  as  to. — 

in    certificate  authorizing  to   do   business.    ]  1 


770  INDEX. 

(References  are  to  pages.) 

FOREIGN  CORPORATIONS  —  Continued. 

reports  to  secretary  of  state,  18 
under  §§   148c,   148d,  10,   12 
Definition    of  —  what   is    a,    10 
Doing  business  in  state, — 
authority  for,   10,   11,   12 

certain  companies  excepted.   11,  12 
companies   dealing  in  stocks  have  no,   17 
may  be  tested  by  quo  warranto,  627 
revocation   of,   375 
certificate  of  secretary  of  state  as  to,  10,  12 
appeal  from  decision  as  to,   11 
forms  of.   under   §§    148c.   148d,  643,  644 
hearing  as   to,   company   entitled  to,    11 
must  state  what,    10,   11,    12 
deposit  with   state  treasurer   required   of  certain,  before,   12 
penalty   for  violating  provisions   of   §    148c  as  to,    11 
does  not  make.  Ohio  corporations,  13 
license  or  privilege  of,  is  not  a  contract  or  property,  15 
one  dealing  with  cannot  deny  right  of,  15 
what   constitutes.    15 
Estoppel  of,  bv  assuming  defense  of  action,  16 

Excise,  franchise  or  privilege  tax  on.      (See  Excise,  Franchise  or  Privilege  Tax.) 
Laws  applicable   to,    when  formed  to   do  business   in   foreign  state,    17 
Legal  existence  of  —  one  dealing  with  cannot  deny.   15 

questioned  for  lack  of  doing  business  in  home  state,  15 
Liability  of  stockholders  in,  17,  157 
Need  not  commence  business  in  own  state,  15 

Place  of  business  of,  reports  to  secretary  of  statemust  give  principal,  in  state,  12,  18 
Powers  of  —  exercised  only  by  county  or  legislative  consent,   13 
in  absence  of  statute,   13 
not  greater  than  in  state  of  creation,   14 
proof  of,   15 
to  hold  real  estate,  etc.,   14 

make   assignment   for   benefit   of   creditors:    preferences,    14 
sue  and  be  sued,  14 
Property  of  —  report  to  secretary  of  state  must  give  value  of,  etc.,  10 
Reports,   etc.,   of,    10,   12 

additional  to  be  made  when,  11,  18 

for  authority  to  do  business  under  sees.  148c,  148d,  10,  12 

forms  for,  641,  642,  643 
for  franchise  tax   ("Willis  Law"),  18 
certain  companies  excepted,  11,   12 

from  provisions  of  "  Willis  Law,"  20 
filed  with  secretary  of  state,  10,  12,  18 
must  be  under  oath,  10,  18 
must    show   what,    10.    12,    18 
Retaliatory   and   reciprocal   provisions   as   to.      (See   Retaliatory   Provisions.) 
Section  148c,  148d.  does  not  apply  to  certain,  11,  12 

to  companies  soliciting  business,  etc.,    11 
Service  of  process  on.      (See  Service  of  Process.) 
Taxation  of.      (See  Excise,  etc.,  Tax:  Taxation.) 
FORFEITURE  OF  CHARTER.     (See  Dissolution.) 

FORMS. 

Acknowledgment  of, — 

articles  of  incorporation,  645 

in  case  of  free  banking  companies,  606 
corporate  deeds,   662.   663 
Amendments   of  — articles.      (See  "Articles  of  incorporation;'  below.) 
by-laws,   672 
regulations,   060,  672 
Annual  statements.      (See  Reports.) 

of  corporations  under   §   3268,  684 
Articles  of  incorporation  — 
amendments  to,  661 

certificate   as   to,   662 
notice  of,  625 

waiver  of.  625 
waiver  of  meeting  for  making,  661 
of   notice   of   meeting,   661 


INDEX.  771 

(Refei |  i 

FORMS  —  Continued. 

companies   for  profit,  6 r>  656 

limiting  vol  ing  power  of  stock,  666 
nut    for    profit,    656  659 
stating  organic   rules    in   articles,  693 
consolidation    agreement.     (See   "Consolidation    of   companies,"   below.) 
endowment    fund   corporations,  694 

free   banking  c panics,  696 

humane  societies,  692 
insurance  companies,  687,  et  ■■>■<</. 
principal   or  ruling  body  governing  subordinate,  659 
record   of,  in  books  of  company,  675  % 

schedule  of  property  to  accompany  articles  of  colleges,  etc.,  693 
statement  of  objects  in.     (See  "Objects"  below.) 
union  depot  companies,  686 
Authority  to  commence  business,  certificate  of,  for  free  banking  companies,  697 
Hankers'  collateral   note,  679 

Blanks    for  —  listing  personal   property    for  taxation,  61 
reports  or    statements   of  companies.     (See    Repobtb.) 
returns  for  taxation,   by    corporations,   56 
Bond  or  bonds  —  indemnity,  for  lust,  or  destroyed   -lock.  678 
official,  6G6 

resolution  of  directors   authorizing   issue  of,   G80 
when  convertible  into  stock.  680 
assent  of  stockholders  to,  680 
Books  —  journal,  ledger,  stock,   record,   etc.,   1 1 7 -" I  < i 7 3 

regulations  as  to  inspect  ion  of,  67<> 
By-laws  —  of   company   for    profit,   672 

record  of  adoption  of,  in  books  of  company.  677 
Capital  stock, — 

certificate  of  stock.  673,  G74 

lost,    destroyed,    etc.,    regulations    as    to.    iii;:i 
conversion  of,  of  constituent  consolidating  companies,   statemenl    a-   to,   <;>.">         y 
increase  of  —  assent  of  stockholders  to  issue  of  preferred,  682 
certificate  of,   682 

before  organization,  G82 
by  issuing   preferred   stock,  683 
in  case  of  building  and  loan  association,  697 
notice  of  stockholders'  meeting  for,  G81 

waiver  of,  and  agreement  to  increase,  681 
resolutions  for,  681 

in   ca.se  of  preferred  stock,   683 
record  of   in  books   of  company.    681 
in  case  of  preferred   stock,    683 
lien  of  company  on  stock,  regulations  as   to.   f>70 

sale  of  stock  to  satisfy,  regulations  as  to,  670 
promissory   note  secured  by,  as  collateral.   679,   680 
reduction   of  —  assent  of  stockholders   to,   6S4 
certificate  of,  684 
resolution  for.  683 

record  of,  in  books  of  company.  683 
statements  as  to,   in  articles.  645,  646 

in  ease  -of  free  banking  companies,  696 

union  depot  companies,  687 
in  consolidation  agreements,  685 
limiting  voting  power  of  stock,  666 
subscriptions  to. — 
books  for,  664 

order  for  opening,  663 
notice  of.  664 

waiver  of.  663 
calls  for  payments  of.  regulation-  a-  to.  670 
notice  of  sale    for   non-payment    of,    (17-! 
certificate  of.  (i6,"> 

in  case  of  free  banking  companies.  697 
record  of,  in  books  of  company,  676 
Collateral  notes,  679,  GS0 
Consolidation  of  companies, — 
agreement  for.   685 

in  case  of  religious  corporations.  G92 


77i  INDEX. 

CReferences  are  to  pages.) 

FORMS  —  Continued. 

certificate  of,  686 
Directors, — 

election  of  —  certificate  of  first,  666 

record  of  first,  in  books  of  company,  677 
regulations  as  to,  608 
meetings   of — by-laws  as  to,  672 

record  of  first,  in  books  of  company,  677 
names  and  residences  of  —  statement  as  to,  in  consolidation  agreements,  685 
number  of  —  change  in  —  resolutions  for  —  record  of,  etc.,  684 
statement  as  to  —  in  articles  of  union  depot  companies,  687 
in  consolidation  agreements,  085 
oath  of,  667 

record  of,  in  books  of  company,  077 
qualifications  —  regulations    as   to,    008 
Foreign  corporations, — 

authority  to  do  business,  certificate  of,  under  §  148c,  643 

under  §  148d,  044 
report  of,  to  secure  certificate  to  do  business  under  §  148c,  641 

under  §  148d,  04.3 
return  of,  for  taxation  of  shares  of  capital  stock,  642 
General  manager  —  regulations  as  to,  669 
Loans  —  resolution  of  directors  authorizing.  680 
Members  of  companies  not  for  profit, — 
dues  of,  regulations  as  to,  071 
expulsion  or  suspension  of,  regulations  as  to,  671 
regulations  as  to,  671 
Meetings  of  stockholders, — 
notice  of  —  of  first,  665 
stockholders.  666 
to  amend  articles,  661 
to  increase  capital  stock,  681 
regulations  as  to,  608,  670 
Mortgage  of  property  —  resolution  of  directors  authorizing,  680 
Name  —  consent   to   use  of,   660 

statement  as  to  in  articles,  645,  657 

iu  case  of  life  insurance  companies,  687 
union   depot  companies,  687 
Notice  of  amendment  of  articles,   661 

meetings  of   stockholders,   etc.      (See  "Meetings"   above.) 
order  for  opening  books   of  subscription  to  capital   stuck,  003 
sale  of  stock  for  non-payment  of  installments  called,  672 
waiver  of.      (See  "Waiver"  below.) 
Oath   of   directors,    667 

record   of    in    books   of   company,    077 
Objects  and  purposes  — 

statement  of  in  articles,   845-050 
for  abstract   company.  040 

accident  insurance   company,   688 

agency  company.   040 

air    cooling    company,    647 

architectural  company,  646 

athletic   club,   657 

auditing   company.    646 

automobile    company,    646 

artificial    gas    company.    651 

animal   insurance   company,   690,   691 

apprehension  of  horse   thieves,   091,  092 

banking  companies,  095 

bakery   company,    047 

benevolent   societies    (governing  body  for),  059 

board  of  trade,  697 

band    company.    647 

boot  and  shoe  company,  647 

builders'    exchange,    657 

building    company,    647 

building  and  loan   association,   698 

business  college,  647 

butchering  company,   647 

barrel  company,  648 


INDKX.  '  ?73 

(References  arc  to  pages.) 


FORMS  —  Continued. 

butter  company,  649 

chattel  loan  company,  695 

Chautauqua  company,  049 

china  company,  048 

Christian  Science  church,  657 

club,  658,  659 

coal  company,  648 

collection  company,  till.  648,  G54 

college  companj .  647,  048 

business,   (147 

medical,   692 
veterinary,  656 
construction  company,  648 
cooperage  company,  648 
credit  guaranty  company.  691 
dairy  company,  649 
deaconess3  home,  657 
detective  agency.  650 
directory  i  ompany,  649 
district 'telegraph  company.  053 
driving  park  company,  04!> 
drug  and  sanitorium  company,  04!) 
drug  store.   04(J 

dry  goods  and  notion-  company.  049 
electric  company,  650,  651 
embalming  fluid  company,  050 
express  company.  650 
fence   company,  650 
fire  insurance  company,  690 
foundry   company,   050 

fraternal  beneficiary  insurance  company.  G89 
gas  and  electric  company,  etc.,  650,  651 
gas  fitting  company.  652 
general  store  company,  651 
glassware  company,  651 
Grand  Army  of  Republic,  658 
guaranty  company,   690 
gymnasium  company,  657 
harness  and  saddlery  company,  651 
heating  company.  052 
home  for  aged,  658 
hospital.  049.  655,  657 
hotel  company.  1)52 
house  furnishing  company,  651 
insurance  companies.  688  et  seq. 
interurban  railway,  680 
iron  company.  652 
laundry  company.  652 
league   (single  tax).  658 
library,    658 

life  insurance  companies, — 
accident,  688 
fraternal   beneficiary.  6S9 
mutual   protection,  aid,  etc..   688-690 
stock.  688 

upon  stipulated  premium  plan,  690 
liquor  companies.  656 
live  stock  insurance  company.  690,  691 
lodge  building  company.    652,   653 
masonic  temple  company,  053 
medical   college,  691 
men's  furnishing  company.  653 
messenger  service  company.  653 
millinery  company.   053 
milling  company,  653 
mineral  springs  company.  654 
musical  club.  047.  658 
musical   instrument  company.   053 
mutual  protective  company.  688 


774  INDEX. 

(References  are   to  pages.) 

FORMS  —  Continued. 

natural  gas  company,  051 
notion  company,  649 
oil  company,  051,  654 
opera  house  company,  654 
orchestra  company,  647 
plumbing  company,  652 
political  club,  658 
printing  company,  654,  655 
public  library,  658 
publishing  company,  654,  655 
railroad  company,  655 
railroad  construction  company,  654 
rating  company,  654 
real  estate  company,  640 
saddlery  company,  651 
safe  deposit  find  trust  company,  696 
sanitarium  company.  655 
sausage  company,  647 
scenic  railway  company,  655 
secret  societies    (governing  bodies  for),  659 
shoe  company,  647,  655 
single  tax  league,  658 
stationery  and  publishing  company,  655 
street  railway,  686 
telephone  company,  652,  654 
temperance  society,   659 

tornado  and  cyclone  insurance  company,  691 
transit  company,  656 
underwriting  company,  656 
union    (governing  body   of),   659 
union  depot  company,  687 
veterinary  college,  656 
wall  plaster  company,  656 
water  transportation  company,  656 
wine  or   liquor  company,  656 
yacht  club,  659 

Young  Men's  Christian  Association,  659 
Officers, — 

compensation  of,  by-laws  as  to,  672 

regulations   as   to,    669,   671 
election  of,  record  of  in   books  of  company,  678 
regulations  as  to,  668,  669,  670 
statement  as  to,  in  consolidation  agreements,  685 
Order  of  business,  regulations  as  to,  609,  672 
Preferred  stock,  statement  as  to  in  articles,  646 
President,  regulations  as  to,  668,  671 

Promissory  note,  .secured  by  stock  as  collateral,  679,  680 
Property,  sale  of.  regulations  as  to,  669 
Proxy    (stockholders),  665,  666 

regulations  as  to,  669 
Quorum,  by-laws  as  to,  of  directors,  672 

regulations  as  to,  668 
Qualifications  of  members  of  company  not  for  profit,  regulations  as  to,  671 
Regulations  —  assent  of  stockholders  to,  676 
of  companies  for  profit,  668-670 

not  for  profit,  670-072 
record  of,  in  books  of  company,  676 
Records,  675-678 

of  first  stockholders  meeting,  676 
of  proceedings  of  incorporators,  675-676 
Sale  of  property  to  company  —  proposition  for,  677 
record  of  proceedings  as  to,  by  directors,  678 
by  stockholders,  677 
Seal,  corporate;    regulations  as  to,  669 
Secretary,  regulations  as  to.  668,  671 
Stock  books  —  journal,  ledger,  certificates,  673,  674 
Stockholders,  list  of,  under  §  3268,  684 

votes  of,  regulations  as  to,  669 
Stockholders'   meetings, — 


INDEX.  775 

(References  arc  to  pages.) 

FORMS  —  Continued, 
notice  of,  666 

of  firstj  665 
quorum,  regulations  as  to,  GG8 
records  of  annual  or  special,  678 
of  first,   676 
Treasurer,  regulations  as  to,  668,  671 
Trustees,   election   of,    regulations   as   to,   671 
Vacancies  in  board  of  directors,  by-laws  as  to,  672 
Vice-president,  regulations  as  to,  668,  671 
Votes  of  stockholders,  regulations  as  to,  669 
Waiver  of  —  meeting  for  making  amendments,  661 
notice  of  amendment  to  articles    661 

of  first  meeting  of  stockholders,  665 

record  of  in  books  of  company,  676 
of  meeting  to  amend  articles,  661 
to  increase  capital  stock.  681 
of  opening  books  of  subscription   to  capital   stock,  663 

FORWARDING  MERCHANTS.      (See  MERCHANTS.) 
FRANCHISES.      (See  under  respective  companies.) 
Corporate  —  is  not  property,  56 

ouster  from  —  quo  warranto  lies  for,  in  case  of  foreign  corporations,  14 
power  to   alienate,  9?,   11-2 
Damages  against  one  usurping,  632 

Right  to  use   streets,  alleys,   etc.      (See  Streets,   Highways,  etc.:    also   under  various 
companies.) 
exclusive,  none  without  dear  legislative  authority.   350 
grant  of  is  a  franchise,  42 
FRANCHISE  TAX.      (See  Excise,  Franchise,  or  Privilege  Tax.) 
FRANKLIN  PARK.      ( See  Parks  —  County. ) 

FRATERNAL    BENEFICIARY    ASSOCIATIONS.      (See   Insurance   Companies  — Life.) 
Agents,  officers,  etc.,  penalties  for  doing  business  of,  contrary  to  law,  4U1 
Articles   (certificate)   of  incorporation  of, — 
acknowledgment  of,  399 
attorney  general  must   approve,   399 
certified  copy  of,  filed  with  superintendent  of  insurance,  6\)U 

what  must  accompany,  399 
must  be  recorded  in  county  of  home  office,  399 
must  show  what,  399 
Are  not  insurance  companies,  396 
Beneficiaries  of  —  charter  limitations  as  to,  396 

in  case  of  death  benefits.  396 
Benefits  —  action  for,  maintained,  when,  396 
are  not  subject  to  attachment,  etc.,  400 
funds  to  pay,  secured  by  assessment,  etc.,  396 

amount  of,  required  before  commencing  business,  399 

certificate  as  to  filed  with  superintendent  of  insurance,  d99 
if  advanced  by  officers  repaid,  how,  399 
may  pay,  on  account  of, — 

death;   to  whom,   395,  396 

lapse  of  time,  396 

physical  disabilty  from  —  accident,  disease,  old  age,  .595 

age  limit,  as  to,  395 
withdrawal,   when;    limitation.  395 
Definition  of,  395 

Directors   of.      (See   "Trustees"   below.) 

Doing  business  in  state — fee;  for;    requirements  as  to.  399 
may  be  enjoined,  when,  401 

penalty  for  doing  business  during,  401 
permit  for,  superintendent   of  insurance   issues,   when,  399 
penalty  for  doing  business  without,  401 
Expenses;    funds   for,   secured  by  assessment >.   etc..   396 

V-.\\,e  answers  in  application;  provisions  of  section  3625  do  not  apply,  s<* 
False   or   fraudulent  representations,  reports,   etc..  400 
Funds  of.      (See  "Benefits,"   "Expenses"  above.) 

distribution    of,    upon    dissolution    or    insolvency,    396 
Foreign  associations. — 

authority  to  do  business  in  state:  requirements.  396.  3J7 
failure  to  comply  with ;  effect  on  certificate,  397 


773  INDEX. 

(References  are  to  pages.) 

FRATERNAL  BENEFICIARY  ASSOCIATIONS  —  Continued. 

examinations  of,  by  superintendent  of  insurance,  when,  397 
expenses  of;   limitations  as  to,   397 
retaliatory  provisions  as  to,  397 
service  of  process  upon, — 

appointment  of  superintendent  of  insurance  as  attorney  for,  etc.,  396,  397,  398 
duration  and  evidence  of  appointment,  398 
existing  associations  to  comply  with,  396 
filed   with    superintendent  of    insurance,   397 
duty  of  superintendent  of  insurance  as  to,  399 
effect  of   service  upon   superintendent   of   insurance,   398 
fees  of  superintendent  of  insurance  in  case  of,  399 
record  of   process  served ;   requirements  as  to,  399 
Government   of, — 

determination  of  order,  is  conclusive,  when,  .396 
governing  body  of,  may  meet  outside  of  state,  400 
insurance  laws  do   not  apply  to,   396 
laws  not  expressly  designating  do  not  apply  to,  396 
lodges  of,  vote  of  outside  of  state,  valid,  400 
must  be  representative,  395 
Incorporators  of  —  must  execute  articles,  etc.,  399 
names  and  residence  of,   articles  must  show,  399 
number  and  qualifications  of,  399 
Injunction  against  doing  business, — 

attorney  general  brings  action  for,  401 
granted,   when,  401 

request  of  superintendent  of  insurance  for,  401 
Lodge  system  and  ritual  necessary,  395 
Members  of, — 

appeal  of  to  courts,  made  when,  396 

remedies  within  order  must  be  exhausted  before,  396 
waiver  of  right  of,  in  contract  void.  396 
number    of,    before   commencing   business.    399 

certificate    as  to,  filed  with  superintendent  of  insurance,   399 
rights  of.  are  subject  to  rules  of  order,  396 
withdrawal  of,  395 

benefits  upon ;  limitations  as  to,  396 
Membership,  false  or  fraudulent  statements  in  application  for,  400 
Name  of  —  articles  must  show.  399 

requirements  as  to,  399 
Objects  of,  articles  must  show,  399 
Office  of,  location  of  principal  —  articles  must  give,  399 

certificate  as  to,  filed  with  superintendent  of  insurance,  399 
Officers,  election  of,  votes  of  lodges  outside  of  state  valid,  400 

certified  list  of  names  and  residences  of.  filed  with  superintendent  of  insurance,  399 
names  and  number  of.  articles  must  give,  399 
Penalties  for  violating  provisions  as  to,  401 
Powers  of,  395,  396,  400 

Provisions  as  to,  do  not  apply  to  certain  associations,   401 
Reports   of   to   superintendent   of  insurance, — 
associations  must  make,  when,  397 

certain   associations  exempted,  401 
blanks  for,  superintendent  of  insurance  to  furnish.  397 
exemption  from  provisions   of  "  Willis  Law."  20 
existing  companies  must  comply  with  provisions  as  to,  396 
in   lieu   of   other   reports,   397 
publication  of,  397 
refusal  to  make;  penalty,  401 
requirements  as  to;   must  show  what,  etc.,  397 
Reserve  fund  —  by-laws  may  provide  for,  396 
consists  of  what,  396 
not  to  be  used  for  expenses,  396 
Section  3625  does  not  apply  to,  378 
Trustee  of  —  election  of.  meeting  for,  held  when,  399 
names  of  first,  articles  must  give,  399 
number  of,  articles  must  give.  399 
FRAUD.      (See  Statute  of  Frauds.) 

As  defense  to  action  to  collect  stock  subscriptions,  139,  141 
Rescission  of  stock  subscriptions  for,  140 


index.  m 

(References   are    to    pagef.) 

FREIGHT.      (See  Railroads.) 

Charges  for  carrying,  storing,  etc. 

lien  for;  action  to  enforce,  etc.,  86,  87 
rate  of  —  effect  of  laws  reducing,  91 
Notice  of  receipt  of,  at  destination,  86 

Penalty   for  non-compliance  with   SS  3221   to  3231   as  to,  88 
Toll  <>i  Ohio   River  bridge  companies   for,  347 
Unclaimed  —  register  of,  to  be  kept.  86 

sale  of:  notice;  disposition  of  proceeds  of,  86,  *7 
FREIGHT  AGENT.     (See  "Employees"  under  Railroads.) 
FREIGHT   LINE    COMPANIES.      (See    Common    CABBIEBS:    COMMON    CABBBEB    COMPA 

Agreements,  contracts,   leases   with  —  railroads  mus1    furnish   copies  to   commissionei    of 

railroads,  29 
Definition  of:   include  what,  71 

Examination,  etc.,  of  agents,  employees,  officers,  etc.,  of, — 
by  commissioner  of  railroads,  29 
by  state  board  of  appraisers  and  assessors,  73 

refusal  to  answer:  penalty,  etc.,  73 
examination,  etc.,  of  books,  papers,  etc.,  by  stair  board  of  appraisers  and  assessoi 
Excise  tax  on:  amount,  levying,  collection  of,  etc.,  72,  73 
exempted  from  provisions  of  "  Willis  Law,"  20 
service  of  process  to  collect,  73,  74 
Reports  of,  to  state  auditor, — 

blanks  for,  auditor  prepares  and  furnishes,  72 
duties  and  powers  of  officers,  etc.,  as  to,  71 
failure  or  refusal  to  make,  71 
must  show  what  as  to  —  capital  stock,  71 
character  or  nature  of  company,  71 
name  of  company,  71 

officers,  etc.,  of  —  name  and  address  of,  71 
organizaton  of,  laws  and  state  of,  71 
principal    office,   location   of,    71 
real  estate  of,  72 
routes  or  lines  of,   72 
Stockholders  of,  or  parties  interested  in,  ineligible  to  office,  etc.,  in  railroad  company.  212 
Taxation   of.      (See  ''Excise,  etc.,  Tax"  above.) 

exempted  from  provisions  of  section  2744  as  to,  72 
real  estate  of,  taxed  locally,  73 
FREIGHT  TRAINS.      (See  Railroad  Trains.) 
FREIGHT  WAYS  OR  PRIVATE  RAILWAYS. 

Construction  of,  over  or  under  railroads  or  highways,  240,  241 
consent  of  owner  of  fee,  at  crossing  necessary,  240 
height  of,  above  railroad  tracks.  241 
owners  or  operators  of  coal  or  iron  mines,  stone  quarries,  rolling  mills  or  machine 

shops  may  construct.  240 
plan  of,  commissioner  of  railroads  approves,  241 
FROGS.      (See  Railroads.) 
FRUIT  COMPANIES. 

Objects  and  purposes  of,  573 

Power  to  acquire,  hold,  etc.,  property,  573 

GARDENS. 

Carrying  away  fruits,  etc.,  injuring  fences,  etc.,  trespassing  upon,  etc.,  402.  463 

GARNISHMENT.      (See  Attachment.) 
GAS. 

Apparatus  for  measuring  and  testing, — 
companies  must  have,  353 

state  sealer  of  weights  and  measures  to  procure,  351 
gas  companies  to  pay  evpense  of,  351 
Charges  for- — price  of  for  fuel  or  light,  40 

agreement  as  to  with  municipality:   term  of.  etc.,  40,  41 
bills  for.  gas  inspector  to  certify  correctness,    12 
furnished  at  prices  fixed,  351 
gas  shut  off,  if  not  paid.  352 
must  be  reasonable,  in  absence  of  ordinance,  40 
regulation  of.  by  municipalities.  40.  41,  350 
power  of  cannot  be  delegated.  41 


778  INDEX. 

(References   are   to   pages.) 

GAS  —  Continued. 

extends  to  companies  chartered  prior  to   1851,  40 
must   be   reasonably   exercised,   41 
Cost  of  —  municipalities  may  require  report  showing,  350 
Fraudulent  use,  etc.,  of:      penalty,  352,  353 
Inspector  of.      (See  Gas  Inspector.) 
Meters  for.      (See  Gas  Meters.) 
Quality  of  —  inspection  of,  gas  inspector  to  make,  42 

merchantable,  what  is,  352 

municipality,  cannot  limit  its  right  to  inspect  and  regulate,  42 

photo  metric  tests  for,  42,  352,  353 

photo  meter  for  testing,  companies  must  have,  353 
Refusal  to  furnish  at  prices  fixed,  forfeiture  of  charter  for,  42 

because  of  arrearage  of  former  occupant,  352 
Standard  measure  for,  351 

GAS   COMPANIES  —  GAS  LIGHT   AND  COKE   COMPANIES.      (See  Natural  Gas   Com- 
panies. ) 
Agents,  etc.,  of.      (See  "Examinations,  etc.,"  "'Managing  agent"  below.) 
Amendment  of  articles  —  so  as  to  furnish  gas  and  electricity,  103,  349 

so  as  to  operate  street  railways,  not  authorized,  350 
Apparatus  for  measuring  and  testing.      (See  Gas:  Gas  Meters.) 
Capital  stock, — 

of  other   companies,   power   to  purchase,   of  electric   light   and   power   companies   in 

cities  of  1st  class   1st  grade.  350 
safe  deposit  and  trust  companies,  may  invest  in,  514 
savings  and  loan  associations  in  certain  cities,  may  invest  in,  515,  514 
Consolidation  of.      (See  Consolidation   of  Corporations.) 
laws  as  to  railroads  apply  to,  43,  40 
with  electric  light  or  gas  companies,  43,  40 
Contracts,   etc.,   with   municipalities.      (See  "Franchise  of"   below.) 

cannot  limit  right  to  designate  meters,  inspect,  etc.,  quality  of  gas,  42 
must  reserve  right  to  purchase   plant,  42 

for  heating  and  lighting  public  buildings,  streets,  etc.,  40,  41,  42,  43,  350,  351 
municipality  may  erect  plant  at  termination   of,   349 
need  not  be   submitted   to  electors   when,   351 
term  of,   41,  43 
Definition  of:    includes  what,   77 

Dissolution,  etc.,  failure  to  furnish  gas,  cause  for,   when,  42 
Examinations,  etc..   by  state  board  of  appraisers  and   assessors, — 
of  agents,  employees,  officers,   etc.,   of,   79 

refusal  to  answer :    penalty,    80 
of  books,  papers,  etc.,  79 
Excise  tax  on:   amount,  levying  of,  collection  of,  etc.,  78,  80 
exempted  from  provisions  of  "  Willis   Law,*'  20 
tangible  property  not  exempt  from  taxation,  80 
Extension  of  pipes,  within  municipal  limits  may  be  required,  41 

default  or  failure  as  to,  effect  of,  41 
Franchise   of  —  grant  to   use  streets,   etc, — 

authorized  in   municipalities  and  townships,   349 
consent    for  —  is   irrevocable.   350 

necessary  —  of   municipal   authorities,    349,    350 
township   trustees,   349 
exclusive,  not  authorized,  349,  350 
municipality  cannot  make.  42 

second   company   must  be  authorized   by   ordinance,    350 

by  vote  of  electors,   350,   351 
statute  of  limitations  in  quo  warranto  proceedings  as  to,  635 
for  extension  of  pipes, — 

beyond    municipal    limits    authorized,    351 

consent    of    authorities  —  right    of    way  —  necessary,     351 
into  other  municipalities,  vote  of  electors  necessary,  when,   351 
municipalities  must  reserve  right  to  purchase  plant,  42 
regulations  as  to.  proper  authorities  may  prescribe,  349 
Gas  of.      (See  Gas:  Gas  Inspector,  etc.) 

Incorporated  under  special  charters  are  subject  to  legislative  control.  349 
Law  as  to  gas  companies   (§§  3560  to  3561)    applies  to  natural   gas  companies  in  cities 

of  2d  class  3d  grade    (16.000  in  1880),   353 
Motors  of.      (See  Gas  Meters.) 
Mortgages  of  —  record  of.   151 
Plant  of,— 


IM)i:.\.  77'J 

(References    arc   to   pages.) 

GAS  COMPANIES  —  Continued. 

cannot  arbitrarily  be  declared  a    nuisance,   323 

damages  to  pipes  from  change  of  grade,  municipalities  nol   liable  to,  350 

lease  or  sale  of,  to  direct  railway  companies  authorized,  54 

stockholder*  —  meeting    of,   to    ratify:    notice;    proxies;    vote 

rights  of   dissenting;    compensation    for   stock;    arbitration;    notice  of  dia- 
Bent,  55 
right  to  purchase,  municipalities  must   reserve,  349 
Powers  of,  349 

to  borrow  money,  349 

manufacture,  sell,  etc.,  gas,  349 

electric  light  and   power       by  amendment   of  articles,    103,  349 

in  cities  of   1st  cla>s,   i.-t    grade,  350 
includes  power  to  purchase,  42 

natural    gas  —  none   by   artificial   gas   companies,    350 
operate,  etc.,  street  railways  —  none  by  amendmenl    of  articles,   350 
purchase,  lease,  operate,  etc.,  franchises  and    planl    ol   electric   light  and    power 
companies  in  cities  of  1st  class  1st  grade,  350 
Reports  —  municipalities  may  require  when.  350 
Reports    to   state   auditor, — 

blanks    for,    auditor    prepares    and    furnishes,    78 
duties  and  powers  of  officers,  etc.,  as  to,  77 
must   show    what   as   to, — 

character  and    nature  of   company.    77 

gross  receipts,   7S 

name   of  company,   77 

officers,   etc.,   of  —  name   and    address   of,   77 

organization   of.    laws   and    state  of,    77 

principal    office,    location    of,    77 

GAS  INSPECTOR. 

Appointment,   duties,   compensation,   etc.,   of,   42 

GAS  METERS. 

Charges  for  —  companies  cannot  charge  rent  for.  352 
company  may  shut  off  gas  if  not  paid,  352 

under  special  charters  arc  subject  to  provisions  as  to,  349 
municipalities   may  regulate,   40 

in  case  of  natural  gas  companies,  40 
Designation  of,  municipality  cannot  limit  its  rights  of,  42 
Injuring  or  interfering  with  operation  of,  352 
Inspection,   examination,    reading,    etc... — 

agent  may  enter  premises   for,  when.   352 
must  be   authorized  in  writing.  352 
preventing  or  hindering;    remedy.   352 
warrant  authorizing,  justice  may  issue  when,   352 
by  gas   inspector,   42 
Meter  prover  —  character   of,   353 
companies   must   have,   353 
meters  must  be  tested  by,   352 

tested,   stamped  and  sealed  by  state  sealer  of  weights   and   measure-.  353 
Removal   of,   for  refusal  to  pay   for   gas.    etc..   352 

notice  of,  352 
Testing  of  —  conditions  and  calculations  as  to,  352 
consumer  may   require,   352 

fee  for,  and  expense  of  removing  if  correct:   who  to  pay.  etc.,   352 
if    incorrect,    none.    352 
meter  must  be  re-stamped  if  correct,  352 
must  be  with  meter  prover.  352 
new   meter   must  be   furnished   if  incorrect.    :'.">2 
GATES.      (See  Railroad  Crossings.) 

GENERAL  LAWS. 

Corporations  may  be  formed  under,  2 

such  laws  may  be  altered   or  repealed.   2 
Effect  of.  on  companies  chartered  by  special  act,   91 
What  are,  2 

GENERAL  MANAGER. 

Forms   for    regulations   as   to  —  bond   of,   669 

compensation  of.  669 

election  and   duties  of.  668.  (1(59 
Name  and  address  of,  reports  to  state  auditor  to  give.      (See  Address.) 


780  INDEX. 

(References   are  to  pages.) 

GIFTS.     (See  Bequests.) 

GOATS. 

Kate  of  toll  for,  in  case  of  bridge  companies,  346 

GOVERNOR. 

Appoints  ■ —  director  of  collateral  loan  companies  in  counties  containing  city  of  1st  class 
2d  grade.   517 
member   of  board   of  visitors  of  military  academies,  479 
member    of     commission     to     hear     petition     for     consolidation     or     re-insurance     of 

risks  of  accident,  health,  or  life  insurance  companies,  307 
railroad  police,  292 

trustees  of  schools,  colleges,  etc.,  when,  473 
Appoints  with  advice  and  consent  of  senate, — 
commission   of  railroads   and    telegraph,   21 
superintendent  of  insurance,   31 
Approves, — 

bond  of   commissioner  of  railroads  and   telegraph,   21 

superintendent    of    insurance.    31 
rules  and    regulations  of  military   academies,   479 
Certificate  of,   as  to  organization  of  free  banking  companies,   538 
Is  member   of, — 

board   of  visitors  of  military   academies,   479 

commission  to  hear  petition  for   consolidation  or   re-insurance  of  risks  of  accident, 

health,   or  life    insurance   companies,   367 
state  board  of  equalization  for  banks,   81 
GRANT.     'See    Franchise.) 

GRAVE  STONES.     (See   Cemetery  Associations.) 
GROSS  RECEIPTS. 

Reports  to  state  auditor  must  give. — 

in  case  of  electric  light,  gas,   messenger  or  signal,  natural  gas,   pipe  line,  railroad, 
street,  suburban  or  interurban  railroad,  union  depot,  and  wa- 
ter  works  companies,   77,   78 
express,   telegraph,   and   telephone   companies,   68,   77 
GROVES. 

Carrying  away  fruits,  etc.,  injuring  fences,  etc.,  trespassing  upon,  462,  463 

GUARD  RAILS.      (See  Railroads.) 
GUARANTY. 

Power  of  corporation  to  make,  112 
GUARDIAN. 

Safe  deposit  and  trust  companies  may  act  as,  514 


HACKMEN,   ETC.      (See  Union  Depot  Companies.) 
HAMILTON,  CITY  OF.      (See  Municipal  Corporations.) 
HAMLET.      (See  Municipal  Corporations.) 
HEALTH  DEPARTMENT. 

Permit   by,    for   disinterment    of    corpse,    39 
HEALTH    INSURANCE.      (See    Insurance    Companies  —  Accident    and   Health:    Insur- 
ance   Co.'s  —  Life:      Insurance    Companies  —  Other   Than 
Life.) 
HEARINGS. 

As   to   excise,    franchise,    or   privilege    tax,   20 

in   case    electric   light,    gas,    messenger    or    signal,    natural    gas,    pipe    line,    railroad, 
street    suburban  or  interurban  railroad,  union  depot,  and  wa- 
ter works  companies,  79 
equipment    (R.  R. )    and  freight  line  companies,  72 
express,  telegraph,  and  telephone  companies.  69,  79 
foreign   corporations   under   §    148c,    11 
sleeping  car  companies,  75 
As   to    inter-locking  fixtures,   etc.,   at   crossings   of   railroads,   electric   railways,   etc.,   24 

HEIRS. 

Liability  of,  for  losses  and  expenses  of  mutual  insurance  companies,  421 

HIGHWAYS.      (See  Streets,  Alleys,  etc.) 
HOGS. 

Rate  of  toll  for  —  over  bridges.   340 
over  turnpikes  or  plank  roads,  331 


[NDEX.  781 

(References   arc   to   pag 

HOME. 

For  children.      (See  CHILDREN:    IIimam.  SOCIETIES.) 

For  widows  and  unmarried  women.     (See  Widows'  Home.) 

HORSE. 

Kate  of  toll   for  —  over  bridges,  -U'i 

over  turnpike   and   plan]-:    roads,    :5.'il 

HORSE  THIEVES. 

Associations  —  township  —  to  apprehend,  etc.     (See  also  Criminals.) 
arrest  and  conviction  of  criminals  by,  400 
articles  of  incorporation  of,  400 

acknowledgment    of,  400 

filed   with    secretary   of  state,   460 

must  show   what,  460 
constitution  and  by-laws  of,    160 
incorporators  of  —  number  and  qualifications  of,  400 
members  of  —  assessments  upon.   460 
name    of,    articles    must    give,    460 
powers   and  objects  of,   400 

articles  must  give,  460 
seal,   power  to   make   and   use,   460 
township    where    located,    articles    must   give.   460 

HOSPITALS. 

City,  superintendent  of,  duty  as  to  bodies  of  deceased  inmates,  481,  482 

HOSPITAL  COMPANIES.      (See  Sanitariums.) 

HOTEL. 

Company  to  construct  and  maintain  buildings  for.      (See  Lrn.niM.  Company.) 

HOT   WATER   COMPANIES. 

Mortgages  of,  record  of,  151 
HUMANE  SOCIETIES.      (See  Cruelty  to  Animals,  etc.) 
County, — 

agents    of — -appointment    of.    by    society,    405 

approval  of,   by  mayor  or   probate  judge  when,  466 

record   of.   4<>ti 
fees  of,   for  making   arrests,  etc.,  468 
powers  of,  465 

to  arrest   persons   violating   laws   as   to   cruelty,   etc.,   465 

about   to  violate  laws.  407.  468 
to  interfere  to  prevent  cruelty,  468 
articles  of  incorporation.      (See  "  Incorporation  "  below.) 
attorney,   society   or   agent   may   employ,    when.    400 

fees  of,   paid    from  county    treasury,   etc.,   400 
branches  of  "  Ohio  Humane  Society," — 

societies  may   become  by   resolution.  465 

copy  of  resolution   sent  to  secretary  of  state.   405 
by-laws,    regulations,   etc.,   societies   may   make,   465 
children, — 

homes  for,  general  agent  to  provide  when.  469 

approval   of  probate  court   as   to.    400 
officers  or  agents  may  take  possession  of,  when,    169 
order  of  probate  court,  as  to  custody  and  control  of.   469 
application  for;   notice  of,  469 

general   agent   of  society  appointed   guardian   under.    Hi'.' 
directors  of  —  election  and   number  of.  465 
fees  paid  to  officers,   etc.,  by  —  charged  as  costs,    168 

reimbursed  to  society  by  person  convicted.  468 
incorporators  of,  number,  405 
incorporation   of.   accomplished   how,   465 
meeting-  for,  record  of. — 

certified  copy  of. —  evidence  of  corporate  existence,  4t;:> 

filed    with    secretary   of    state.    I(i.~> 
must  show  what,  465 
members  of  —  may  interfere   to   prevent   cruelty     169 

may  require  agents,   police,  etc..   to   arrest,   when.    4US 
to   take   possession    of   animals,    etc..    when,    469 
name  of.  record  of  meeting  to  incorporate  must  give.  465 
objects,  etc.,  of.  464.  465 
officers,  etc..  of  —  election  of.    165 

may  interfere  to  prevent  cruelty,  468 


782  INDEX. 

(References   are   to   pages.) 

HUMANE  SOCIETIES  —  Continued. 
Ohio  State  Society, — 

agents  of  —  appointment  of,  464,  465 

approval  of,  by  mayor  or  probate  judge  when,  465 

record  of,  465 
general,  to   prosecute  work  of  society,   465 

power  of,  to  arrest  violators  of  laws,  465 
in  counties  where  there  is  no  county  association,  464,  465 
powers  of,  464,  465 
branches  of, — 

establishment  of,  society  prescribes  rules,  etc.,  for,  465 
humane   societies   may   become  by   resolution,   465 

copy   of  resolution  sent  to  secretary  of   state,  465 
number  of  members  necessary,  465 
by-laws  and  regulations  of,  464 

gifts,  devises,  and  bequests  to,  managed,  etc.,  by  trustees.  464 
objects   and    powers   of,    464 
officers    of,   society   elects,   464 

property    of  —  may   acquire   by   purchase   or   gift.    464 
trustees  to  manage,  etc.,  number  and  powers,  464 

HYDRAULIC  COMPANIES. 

Appropriation  of  property.      (See  Appropriation.) 
for  abutments,  fixtures,  etc.,  354 

aqueducts,    canals,    culverts,    raceways,    etc.,    354 
Bonds,  notes,  etc.,  of  —  amount  of:    limitation   on,  354 
company  may  issue,   354 

consent  of  stockholders  necessary,  354 
interest  on,   354 
purposes  for  which  authorized,  354 

for   completing,   extending,   repairing,   etc.,   354 
secured  by   mortgage  on   real  estate,   354 
Consolidation  of, — 

agreement  for  —  certified  copy  of,  filed  with  secretary  of  state,  355 

stockholders   must  ratifv,   355 
effect  of,  355 
evidence  of,  what  is,  355 
meetings  for,  355 
notice  of,  355 

certificate  as  to,   on  records,   355 
proceedings  at,  355 

certified  copy  of,  filed  with  secretary  of  state,  355 
vote  necessary  at,   355 
what  companies  may  unite,   355 
Forfeiture  of  corporate  franchises  for  non-user,  certain  companies  relieved   from,   354 
Powers  of,  354 
Property  of,   sale  of, — 

on  execution,  355,  343 

appraisement  of,   355,   343 

copy  of,  with  confirmation  and  conveyance  filed  as  articles  of  incorp'n,  355,  343 
corporate  franchises,  etc..  included,   355,   343 
provisions  of  eh.  5  §  3472  et  seq.  apply  to,  355 
under   foreclosure  of  mortgage. — 

appraisers  for ;   appointment,  etc.,  355,  335 
provisions  of  eh.  5  §  3472  et  seq.  apply  to,  355 
sale  under,  may  be  in  parcels,  when,  355,  335 
»  passes  corporate  franchise,  etc.,  355,  335 

same  as  in  case  of  real  estate,  355,  335 
Water,  not  to  be  drawn  off,  when ;  penalty,  355 


INCLINED    PLANE   RAILWAY    COMPANY. 

Consolidation  of  —  authorized  with  electric  and  street  railway  companies,  53 

laws  as  to  railroads  apply  to,  53 
Crossings  at  streets  or  highways  —  must  be  above  or  below  grade,  30S 

must  not  obstruct  use  of  street,  308 
Powers  of,   308 

to  carry  freight  and  passengers,  308 

construct,   maintain,   etc.,   depots,   offices,   etc..   30s 
establish,  maintain,  etc.,  park,  pleasure  grounds,  etc..  308 


INDEX.  783 

(Refi  rem  i      are   to   pai 

INCORPORATION.     (See    under    respective    companies.) 
Accomplished    when,    102 

Articles  of.     (See  Articles  ok  Incorporation.) 
Charter  or  cerl  ificate  of  — 

foreign  corporations  under  §    I48d   musl    file  sworn  copy  of,   12 
mandamus  tines  not   lie  to  compel   issuance  of,  when,   L01 
under  general  laws.     (See  Articles  ob    Incorporation.) 
under  special    laws  — 

amendment   of  —  directors    )    accepl    when,    93 

stockholders  rights  as  to,  93 
courts  will  imt   take  judicial  uotice  of,  92 
not  accepted  or  acted   upon  are  repealed,  92 
Evidence  of,  prima  facie,   100,    101 

Illegality  or  irregularity  in,  no  defense  to  enforcemenl  of  stock  subscription,  I  12 
Must   be  under  general   laws.  2 

Preliminary  organization   for,  does  uol   exist  after,   104 
INCORPORATORS.     (Sec  Promoters.     See  also  under  respective  companies.) 
Act  as  inspectors  at  first,  election  of  directors,   120 
Agreements  of,  as  to  formation  of  corporations,  96,  98 
Appoint   time  and  place  of  first  meeting  of  directors,    L20 
Become  body  corporate  when.    103 

Books  of  subscript  inn  to   capital   stnek  opened  by,    1 1  ■"> 
By-laws  making  control  of  perpetual  cannol   be  made.   L2  t 
Certificate  of  subscriptions   to    stock    made  by,    118 
Elect   first   trustees  of   companies   not   for   profit,    113 
Liability  of,  for  deficiency   in  payments  on  subscription,    lis,    11!) 
amount  of:   enforced  how,   118,    119 

in  action   to  enforce  stockholders'   liability,    119,   100 
Meeting  for  organization  called  by,  118 

form  for  record  of,  in  books,  675 
Number  of,  necessary.   96,   97 
Qualifications  of;  citizenship,  etc,  96 
Secret   intentions   of,   effect   of,    98 
INDEBTEDNESS.      (See  Corporate  Debts.) 
INDICTMENT. 

Against    corporations  — 

for   maintaining  certain  nuisances,   637 
pleas  to,   what  and  by  whom.  639 
summons  in,   service    and  return   of,   038,   639 
Prosecutions  are  by,  when,  — 

for   injuring   telegraph   lines,   etc.,   319  ...        ,  ,     .,  , 

trespassing  upon,   unlawfully  carrying  away   fruits,  etc.,   injuring  fences,   build- 
ings,    etc.,     of     fair     grounds,     pleasure     grounds,     nurseries, 
orchards,   etc.,   463 
'  for  interference  with  electric  wires,  poles,  machinery,  etc..  322,  323 
in  what  courts.  322.  323 
when  involving  imprisonment,  in  case  of  agents,  employees,  ntlicers.  etc..  of  railroad 
and  telegraph    companies.   30 

INDUSTRIAL  ASSOCIATION'S. 

Fairs  of,  constables  to  keep  peace  at,  460 
INDUSTRIAL  TRAINING  SCHOOLS.     (See  Library,  Lecture,  etc..  Companies.) 

INFANTS. 

Liability  of,  as  stockholders,  153 

INFIRMARY  — COUNTY    OR    CITY. 

Duty  of  superintendent,  etc.,  of,  as  to  bodies  of  deceased   inmates.  4M.  4h'_ 

INJUNCTION. 

Ancillary  to  quo   warranto,  stockholders  of  hank  may  have   when.  tW4 

Bond   for,    approved    by    probate   court    in    case   of    lien   upon    canals,    mads,    raiiroao>, 

etc.,   so 
Dissolution   of  —  in   case  of   directors   of   corporations,    134 

in  case  of  mechanics'   lien  upon  canals,   mad-,   railroads,  etc.,  89 
Lies   or   not,   when, —  generally.    135 

against  breach   of  trust   by   religious   society,   etc.,    107 
change   of  route   or   termini    of   railroad.    180 
construction  of  street   railway  without    necessary   consents,   299 
cutting  prices,  134 

diversion  of  funds  pledged  for  interest  on  bonds,  etc..  200 
election  and  induction  of  directors,  124 


784  INDEX. 

(References  are  to  pages.) 

INJUNCTION  —  Continued. 

forfeiture  of  stock  for  unpaid   installment,   138 

fraudulent  disposition   of    funds   from   stock   subscriptions,    141 

fraudulent    or    illegal    acts    of   directors,    134 

misuse   of    proceeds   of   bonds,    197 

occupation   of   lands   by   railroad,    185 

operation  of  canals,  roads,  railroads,  etc.,  against  which  mechanics'  lien  is  filed,  89 

payment  of  dividends  on  doubtful  stock,  170 

revocation  of  license  of  insurance  company  to  do  business,  34 

sale  of  portions  of  mortgaged  railroad  property  on  execution,  199 

use,  etc.,  of  streets,  etc.,  by  railroad,   189 

by  property  holders   after   municipal    grant,    191 
to  compel  gas  company  to  furnish  gas  at  fixed  price,  40,  351 
inspection  of  books,  by  stockholder.    14G 

restoration  of  streets,  by  property  holders  against  street  railroad,  191 
to  membership  in  assessment  life  insurance  company,  384 
to  enforce  provisions  as  to  bridges,  viaducts,  etc.,  over  railroad  tracks,  235 
INJURIES   OK    DEATH   TO    PERSONS.      (See   Insurance    Co.'s —  Accident:     Insurance 

Companies  —  Life.  ) 
Fatal,   examinations   as  to,  by  commissioner   of  railroads,  29 

report  of  by   railroad   companies  to   commissioner,   29 
To  railroad  employees,  etc.      (See  Railroads.) 
To  intoxicated  employees  of  railroad,  249 
INLAND  NAVIGATION  INSURANCE.      (See  Insurance   Co.'s  —  Marine.) 

INSANE    ASYLUMS.  ...     ... 

Duty  of  superintendent,  etc.,  of,  as  to  bodies  of  deceased  inmates,  481,  482 

INSOLVENT   CORPORATIONS. 

Attachment  against  — 

lien    of.    upon   property   levied    upon.    168 

wrongful    preference   no   ground   for,    168 
Companv   is  when,   168 

Distribution  of  assets  of,  in  action  to  enforce  liability  of  directors,  officers,  etc.,  159 
Dutv  of  directors  of.   132 

Enforcement  of  liability  of  directors,  officers,  stockholders,  etc..  of.  _159 
Preferences  by  —  agreement  to  execute  mortgage  is  not.   when,   167 

coynovit  note  is  not,  when.   167 

directors    cannot    secure.    168 

no  ground  for   attachment,   168 

Ohio  rule  as  to,  U.  S.  courts  will  follow,   168 

remedy   of   creditors,    168 

validity  of,   167.   16S 
INSOLVENT  DEBTORS.      (See  Assignments  for  Benefit  of   Creditors.) 

INSPECTION. 

Books,    records,   etc..   are    subject   to   by   stockholders,    15 
in  case  of  foreign  corporations,   15 
railroad    companies,    211 
List  of  stockholders,  names,  residences,  shares,  etc.,  of  banks,  etc.,  is  subject  to,  of  tax 

officers,    64 
Of  automatic  couplers,  air  brakes,  etc      (See  Railroads.) 
Of  gas,  meters,  etc.      (See  Gas;  Gas  Meters.) 

INSPECTORS. 

Of  automatic  couplers,   air  brakes,  etc.      (See  Railroads.) 

Of  elections.      (See  Directors.) 

Of  building  and  loan  association.      (See  Building  and  Loan  Association.) 

INSURANCE. 

Business   of  —  may  be  confined  to  corporations,   364,   370 
unlawful    except    under    provisions    of    laws.    37 

Laws  as  to  —  apply  to  companies  and   associations,  incorporated  or  not,  37 
apply  to  companies  organized  under  U.  S.  laws,  37 
do  not  apply  to  insuring  one's  own  property  in  unauthorized  company,   dt 

INSURANCE   COMPANIES.      (See  respective  titles  following;  also  Salvage  Companies.) 
Acceptance  of  revised   statutes  by  companies   created  prior  to   1851  - 

compliance  will.   §§  3654.  3655  or  certain  police  regulations  does  not  constitute,  J_,  M6 
issuing  policies  authorized  by  general  laws  but  not  by  charter  constitutes,  J3 
Actions  against,  brought  where.  579 

in    case   of    foreign    companies,    580,    581 
Agencies  of  foreign,  must  make  return  of  business,  57 


INDEX.  785 

(References  are  to  pages.) 

INSURANCE  COMPANIES— Continued. 
Agents   of  — 

certain  acts  of,  unlawful,  after  revocation  of  authority  to  do  business,  34 
of   foreign   companies, —  appointment  of,    36 
authorization  to  do  business,  36 
may  appoint  other  agents  when,  :'>o 
organized   under  CJ.  S.  laws  are  subject   to  Ohio  laws,  :i7 
penalty  for  acting  as,  when  taxes,  etc.,  arc   unpaid,  83 
summons   served   upon   when,    ">s:> 

in  actions  before  justice  of  peace,   624 
unlawful  to   act  as,   when   taxes   are   unpaid,   83 
Annvial   statements,   reports,  etc.,   of.     (See  "  Reports"   below.) 
Authority   to  do  business.      (See  "License  to  do  business"  below. J 
Business  for,  or  with,  unlawful  to  do,   when,  83 
Capital   stock  of  — 

assessments  on,   on   account  of   impairment,    33 

effect  of   transfers  during   investigation   as   to,   33 
must  be  paid  to  entitle  to  dividend,  34,   L69 
procedure  in  case  of  default,   33 
superintendent  of   insurance   can    not   hold.    :!1 
.Certificate  of  compliance  with  laws  —  must  contain   what,  36 
publication   and    record    of,    3G 
Charter  of,  fees  for  filing  copies  of,  35 

Commissions,  deduction  of,  from  receipts  in  tax  returns  of  foreign  companies,  57 
Coupons  to  securities  deposited  with  state,  delivery  of.  :;."> 
Debts  of  —  liabilities  of  —  statement  of  condition  must  show,   30 
Deed  of  settlement,   fees  for  filing  copy  of,   35 
Directors  or  trustees  of.      (See  "Mutual  Companies"  below.) 
Discontinuance  of   business,   37 

delivery  of   securities   upon,    37 
examination  of  books  and  records,  37 
notice  as  to,   37 
Dissolution   of,   because   of    impairment   of   capital.    33 
Examinations  of,  by  superintendent  of  insurance,  32,  33,  59 
companies  under  special  charter  subject  to,  32 
expenses  of,  32,  59 
in  case  of  foreign   companies,   57 
penalties  for  refusing  to  submit  to,  59 
publication  of  results,   32 
Examiners   of  —  appointment,   duties,   powers,   32 
Fees  to  be  paid  by    (see  Fees),  35 
Foreign.      (See  also   Foreign  Corporations.) 
agents    of.      (See   "agents"    above.) 

deposit  with   state  treasurer  before  doing  business.   12 
right  to  do  business  tested  by  quo  warranto,  627 
sections  148c,  148d  do  not  apply  to,  11,  12 
privilege  tax  on, —  amount  of,  etc.,   57 
Laws  as  to"  apply  to  —  companies  organized  under  U.  S.  laws,  37 

individuals,  partners,  companies,  etc..  37 
License  to  do  business  —  after  impairment   of  capital   or  assets,  33 
after  revocation  for   unlawful  re-insuring,   pooling,  etc.,   58 
fees  for  filing,  35 
revocation  of,  — 

appeal  from  decision  of  Sup't  of  Ins.  does  not   he  when.  32 

causes  for,— false  statement  of  gross  receipts  of  foreign  companies,  57 

re-insuring,   pooling,  etc.,  with   unauthorized  companies,   58 
effect  of  upon  agents.  34 
in    case    of    foreign    companies,    34 
notice    of,   to   be   published,    34 
remedy  to  prevmt,  34.  58 
Managing  agent,   who  is,   for   service  of  summons.    583 

Mutual   companies —  ,      „ 

directors  or  trustees  of.  liability  of,  for  losses  during  deficiency  of  assets,  33 
fees  for  filing  articles.  9 

loss  on  policy  of,  is  not  debt  rendering  trustees  liable,  165 
unsound  condition  of.  what  constitutes,  etc..  33 
Negotiable  paper,  power  to  purchase.    108 
Penalties  for  violation  of  insurance  laws.   37 

agents  of  companies  under  U.  S.   laws  subject  to,  37 
companies  under  U.  S.  laws  subject  to,  37 


78G  INDEX. 

(References  are  to  pages.) 

INSURANCE  COMPANIES— Continued. 

Policies  of  —  issuing;   requirements  as  to,  58 

limitations  in,  as   to  time   of   suit  does  not  apply  to  suit  to   enforce  stockholders' 

liability.    1G1 
must  be  placed  through  legally  authorized  agent,   58 
Privilege  tax  on  foreign  companies,  57 

Railroad  companies  not  to  transact  business  with  or  for,  when,  83 
Reports   of,    etc. — 

as  to  condition    (annual  statements)  — 

blank  forms  for,  superintendent  of  insurance  furnishes,  35 
false  statements  in,   of  foreign  companies,   57 
fees   for   filing,    35 
publication  and  record,  36 
requirements  as  to,  36 
exemptions  from  provisions  of  "  Willis  Law."  20 
for  taxations,  56 

must   show   gross    premiums   of  foreign   companies,   57 
Retaliatory  provisions,  35 

as  to  taxation,  57 
Section  3235  does  not  apply  to,  94 
Securities  required  by  law  — 

coupons  of,   delivery  of,   how.   31 
delivery  of,  upon  discontinuance  of  business.  36 
fees  for  making  and   forwarding  checks,  etc.,  on,  31 
to  be  deposited  where,  35 
withdrawn  how,  35 
Service   of   process   upon,   583.    624 

in  case  of  foreign  companies.  583 
Unauthorized    companies,    transacting   business    with.    58 
Unsound  —  revocation  of  authority  to  do  business,  34 
what  constitutes,  33 

INSURANCE  COMPANIES  — ACCIDENT  AND  HEALTH.      (See  Insurance  Co.'s  — Life: 

Insurance    Co.'s  —  Other    than    Life:    Insurance    Co.'s  — 
Title  Guaranty.) 
Assessment  companies, — 

bond  of,  to  secure  assured.  390.  391 
amount,  conditions,  etc..  of.  391 
approved  by  superintendent  of  insurance.  391 
filed  with   superintendent  of  insurance,  391 

purely  accident  companies  having  reserve  fund  need  not  give,  391 
bydaws  of,  may  provide  what,  390 

expenses  of  —  annual  payments  or  special  assessments  to  meet,  390 
included  with  loss  and  reserve  fund  when,  390 

notice  of  percentage  for  each.  390 
payment   of,   bydaws   provide   as  to,   390 
incorporators   of,   number,    and   citizenship   of,   390 
loss  and  reserve  funds  —  must  be  kept  separate  from  expense  fund,  390 

surplus  in.  certificate  holders  may  be  paid,   when,  390 
organization    of,    390 

penalties    for    violating   provisions    as    to.    391 
reserve  fund  of  purely  accident  companies  —  amount  of,   391 
held   for  benefit  of  certificate  holders,  391 
investment  of.   391 

may   lie   loaned   on    insurance   certificates   when.    391,   368 
section  355)8  applies  to,  391 
securities   of.    deposited   with   superintendent   of   insurance,    391 
re-delivery   to    company   when.    391 
treasurer  of  purely  accident  companies. — 
bond   of  —  amount,   conditions   of,    391 

approved,  etc..  by  superintendent  of  insurance,  391 
filed  with    superintendent   of   insurance,    391 
Bydaws  of.  may  provide  as  to  terms,  conditions,  etc.,  of  policies,  431 
Companies  —  "life"   may   insure   against,   etc..   when.   366,    367.   381 

"  other  than  life  "  may  insure  against  to  employees,  persons,  or  property,  412 
Consolidation  of  —  reinsuring  risks,   etc..  — 
penalty  for  violating  provisions  as  to.  368 
petition   for  —  commission  to  hear  and  determine,    367 
hearings  upon :    time,    place,   etc.,   367 
must  show  what.   367 
notice  of  pendency  of,  367 


INDEX.  787 

(References  are  to  pages.) 

INSURANCE  COMPANIES  — ACCIDENT  AND   EEALTH       Continued, 
order    of    commission,    •"•>",    368 
presented  to  superintendent    of   insurance,   •'•<>7 
stockholders   or   policy    holders    may    be    heard,    :sii7 
re-insuring  risks  permitted  without    petition   to  what  extent,  367 
Deposit  for  doing  business  in  other  Btates,  131 
action  to  colled   claims  payable  from  38 
certificate  of, —  filed  with  superintended   of  insurance,  431 
exchange,   withdrawal,   etc.,   of   securities,    t:;l 

certificate  as  to  mad"  t<>  superintendent  of  insurance,  4.J1 
state    treasurer    to    receive,    etc.,    431 

receipt   for,  issuance  and  contents  of,  431 
Employers   insurance  of  employees,    113,   414 

companies  "other  than  life"  may  do  business  of,    H3 
foreign  companies  making,    1 1  I 

deposit    with    superintendent    of    insurance,    requirements    of,    414 

exchange  of  securities,  4 1  1 
state  laws  apply   to,   how   far,   414 
Foreign  companies  — 

certificate  of  authority  to  do  business,  issued   when,  392 
renewal    of   annually.    392 

decisions  of  superintendent  of  insurance  subjeel    to  review.  392 
what  must  be  filed   before,  392 
agent  or  attorney  for  service  of  process  upon,  appointment  of,  392 
deposits   by,    requirements    as    to.    392 
Policies,   conditions  of  —  by-laws  may   provide  what    as   to,   4.".1 
immediate   notice  of  accident,   definition  of.   414 

ignorance  of  accident:    of  existence  of  policy,   etc..   414 
knowledge  of  agent.  414 
waiver  of.  by  agent,  414 
Powers  of  —  may  not   do  other  classes  of  insurance.   413 
to  execute  bonds  and   undertakings,   412 

to  insure  —  against   accidents   to    -persons,   property.  -112.   431 
against  loss,  etc..  from  sickness,  431 
employers   against    accident    to   employees.   413 
fidelity    of   persons.    412 
performance    of    contract--,    etc.,    412 
validity    of    titles.    412 
Re-insurance  of  risks  permitted  when.  441 
INSURANCE   COMPANIES  —  BOILER.     (See    Insurance   Co.'s  — Otheb   Than    Life.) 

Re-insurance  of   risks  permitted  when.  441 
INSURANCE   COMPANIES  — BURGLARY,    ROBBERY,   ETC.        (See    Insurance   Co.'s  — 

Other  than  Life.) 
Agents  of. —  not   to   act  — 

while    re-insurance   reserve   is   impaired,    445 
without    license   of    superintendent,    of    insurance.    44") 
license  must  show  what,  445 
Assets  of  —  premium   contracts   constitute   valid   part    of,   445 
Attorney  to  act  for  foreign  company  — 

name  of,   license  of  agent    must   give.   445 
superintendent  of  insurance  to  be  appointed  as,  44G 
certificate   of  appointment    of.   44G 
Banks,    hankers,    etc.,    may    be    insured    by,    445 
City  treasurers  may  be  insured  by,  44.1 
County    treasurers    may    be    insured    by,    445 
License  of.  to  do  business,  authorized.   444.  445 
conditions    precedent    to,    445 

renewal    of,   superintendent   of   insurance   grants   when.   446 
revocation    of.    for    violating   provisions    of    law.    44ti 
statement  for  —  must  be   renewed    annually.   446 
requirements    a<    to,    4  45 
what  must   be  filed   with,  445 
who    must    make.    445 
what  companies  must  have.  444.  445 
Loan  companies  may   be  insured  by,  445 
Membership   fees  —  liability    of    policy    holder   for.    44G 

may   be  paid    in   cash   or  evidenced   by   contract.    446 
Organization  of.   must  be  on  mutual   plan,   444 

Policies    of,    number   of  —  necessary    before    commencing   business.    445 
Policy  holders  in.  liability  of;   limitations.  446 


788  INDEX. 

(References   are   to   pages.) 

INSURANCE  COMPANIES  — BURGLARY,  ROBBERY,  ETC.— Continued. 
Powers  of,  445 

cannot  insure  whom,   445 
may   insure   whom,   445 
Premiums  —  amount  of  in  cash  and  contracts  before  commencing  business,  445 
collection  and  payment  of  may   be  in  cash  or  by  contracts,   445 
contracts   for,   valid   assets,   445 

amount  required  to  be  paid  on,  445 
President  of,  duties  of,   as  to  —  annual  reports,  446,  445 

license  statements,   445 
Re-insurance    reserve  —  amount    of,    445 
companies  must  set  aside,  445 
impairment   of,   agents   not   to   act   during,  445 
Reports   of  — 

copy  of  last  to  accompany  license  statement  of  foreign  companies,  445 
exemption   from  provisions   of  "  Willis  Law,"   20 
requirements    as    to,    446,    445 
who  must  make,  446,  445 
Secretary,  duties  of,  as  to  —  annual  reports,  446,  445 

license  statement,   445 
Service  of  process  on  foreign  companies,  446 

attorney  for,  superintendent  of  insurance  appointed  as,  446 
what  is  sufficient  service  upon,  446 
Trust  companies  may  be  insured  by,  445 

Vice  president  of,  duties  of,  as  to  —  annual  reports,  446,  445 
license  statement,  445 
INSURANCE     COMPANIES —CREDIT     GUARANTY.      (See     Insurance     Co.'s  — Other 

than  Life.) 
Articles  of  incorporation  of,  441,  364,  365 
acknowledgment  of,   441 

attorney  general  examines  and  certifies,  441,  365 
certified  copy  of,  secretary  of  state  to  furnish,  441,  365 
filed  with  secretary  of  state,  441,  364 
must  be  signed  by  incorporators,  441,  364 
must  show  what,   441,   364 
record  of,  441,  364 

sections  3588,  3589,   3590,  apply  to,  441 
Assets  or  accumulations  of  — 

invested  how;   in  what  securities,  441,  366,  365 
Business  of,  character  of,  etc. —  articles  must  give,  441,  364 

what  permitted,  441 
Capital  stock  — 

amount  of  —  minimum  permitted,  articles  must  show,  441,   365 

paid  in,  all  must  be  before  commencing  business,  441 
impairment  of,  business  not  to  be  conducted  during,  442 
increase  of  —  certificate  of,   filed  with  secretary  of   state,  441,   366 
invested  same  as  original  capital,   441,  366 
section  3592  applies  to,  441 
stockholders  must  authorize,  441,  366 
investment  of  —  all  before  commencing  business,  441 
change  of,  company  may  make,  441,  366 
in  what  securities,  441,  366 
subscriptions  to,  books  for  —  opening  of;  notice  of,  etc.,  441,  365 
must  be  kept  open  how  long,  441,  365 
Deposit  with  superintendent  of  insurance,   441 
actions  to  collect  claims  payable  from,   38 
amount  of,  441,   366 
before  commencing  business,  441,  366 
certificate  of,  441 
change  of  securities,  441,  366 
consists  of  what,  441,  366 

impairment  of,  business  not  to  be  conducted  during,  442 
in  case  of  foreign  companies.      (See  "Foreign  Companies,"  below.) 
interest  and  dividends  on,  company  collects  when.  441,  366 
sections  3593,  3594.  apply  to.  441 

title  to,  in  superintendent  of  insurance,  in  trust,  441,  366 
assignment  of  mortgages  must  be  recorded,  441,  366 
fees  for,  company  to  pay,  441,  366 
Directors — election  of,  articles  give  manner  and  time,  441,  365 
increase  of,  stockholders  or  "members  may  make,  441,  364 


INDEX. 

(  R(  fircnccs   arc   to   p 

INSURANCE  COMPANIES— CRKIHT  CI AKANTY     Continued. 
majority  of,  must  be  citizens  of  state,    ill.  365 

must  1)0  stockholders  or  members,    III.   .*Ki  I 
number  of,  441,   364,  365 

articles  must   give,  441,  364 
vacancies,  manner  of  filling,  articles  musl  give,    ill.  365 
Examinations  of  —  provisions  as  to  life   insurance  companies  apply,  444 

superintendent  of  insurance  may  make,   ill 
Foreign  companies  — 

deposit  of,  with   superintendent    of  insurance,    ill 
action  to  collect  claims  payable  from,  38 
amount  of,  444 
may  be  with  officer  of  state  of  organization  when,  444 

certificate  of,   furnished   superintended    of    insurance,  444 
invested  in  what,  444 
value  of  securities  determined  bow,  444 
license  of,  to  do  business  necessary,  443 
conditions  precedent  to,  443,   444 

statement  for. —  filed  with  superintendent  of  insurance,  443 
requirements  as  to,  444,  442,  443 
who  must  make.   444 
must  file  with   superintendent  of  insurance, — 

certificate  as  to  right  of  Ohio   companies   to  do  business  in  state  of  organiza- 
tion, 443 
copy  of  applications,  by-laws,  policies,  etc.,  444 
charter,   certified,   443 

resolution  appointing  attorney  for   service   of  process   upon,   444 
Forfeiture  of   right  to    do   business, — 

attorney  general  to  institute  proceedings  when,  444 
refusal  to  make  reports  subjects  to,  444 

superintendent  of  insurance  enforces  by  quo  warranto,  444 
Incorporators, —  articles  must  be  signed  by.  441.  364 

duty  of,  as  to  opening  books  of  subscription  to  capital  stock,  441,  305 
number  of,  441 
Investments.      (See  "Capital  stock,"  "Deposits,"  above.) 
License  to  do  business, — 

in  case  of  foreign  companies.      (See  "Foreign   com p<uii< ■*."   above.) 
superintendent  of  insurance  issues  when,  442 
Name  of  —  articles  must  give,  441,  364 
limitations  as  to,  441,  364 
secretary  of  state  to  approve,  441,  365 

superintendent  of  insurance,  duties  and  powers  of,  as  to,  442 
Objects,  etc.,  of,  414 

Officers  —  election  of,  articles  to  give  manner  and  time  of,  441.  365 
majority  must  be  citizens  of  state,  441,  365 
vacancies  in,  articles  to  give  manner  of  filling,  441,  365 
Organization  of  —  may  be  completed  when,  441,  365 
notice  of,  441,   365 

sections  3538,   3589,  3590,  apply  to,  441 
Place  of  business  of,  articles  must  give,  441,  364 
Powers  of,  442 

manner  of  exercise  of,  articles  to  give,  441,  364 
none  others   permitted,   442 
to   guarantee  wages,  442 

insure  payment  of  debts,  442 

take  assignments  of  claims  and  collect  same.  442 
Reports  of,  to  superintendent  of  insurance. — 

companies,  foreign  and  domestic,  must  make.  442 
exemption  from   provisions  of  "  Willis  Law,"  20 
requirements  as  to,  442,  443 
penalty   for  refusing  to  make,  444 
who   must   make,   442 
INSURANCE     COMPANIES  —  FIDELITY    GUARANTY.      (See    also     Ixsiraxcf.     Co."s — 

Accident:   Insurance  Co.'s  —  Otheb  than   Life:    [nsurance 
Co.'s —  Title  Guaranty :  Safe  Deposit  axd  Trust  Co.'s.) 
Bonds,  official,  etc.,  required  by  law,  executed  by.  414.  415 
approval  of,  etc.,  415 
cost  of,  amount  and  allowance  of,  415 
superintendent   of  insurance   cannot   give.   415 
Corporate  powers  not  to  be  denied  when,  413 


790  INDEX. 

(References  are   to   pages.) 

INSURANCE  COMPANIES— FIDELITY  GUARANTY— Continued. 

Deposit  with  superintendent  of  insurance  before  commencing  business,  413 
action  to  collect  claims  payable  from,  38 
amount  of;  valuation  of,   413 
exchange  of  securities,  413 
held  for  what  purpose,  413 
in   case   of   foreign   companies,   413 

may  be  with  officers  of  another  state  when,  413 

certificate  as  to.,  necessary,  413 
release  of  certain  securities,  413 
income   from,   413 
in   what   securities,   413,  411 
object   and  purpose   of,  413 
Re-insurance  of  risks  permitted  when,  441 

INSURANCE    COMPANIES  —  FIRE.     (See    Insurance    Co.'s;    Insurance    Co.'s  — Other 

than  Life:    Salvage  Co.'s.) 
Advertisements  of  —  penalty  for  violating  provisions  as  to,  429 
statement  of  assets  in;  what  not  to  be  included  in,  429 
statement  of   liabilities  must  accompany,   429 
Assessments  for  expenses  of  salvage  companies.  437 

limitations,  etc.,  on,   437 
Charter  of.   forfeiture  of,  unlawful  dividends  subjects  to,  420 
Consolidation  of, — 

articles  of  incorporation  of  new  company,  company  chooses  which  to  act  under,  431 
capital  stock  upon  —  apportioned  how,  432 
limitation  upon  amount   of,  432 
surrender  of  old  certificates,  432 
certificate  of, — 

filed  with  secretary  of  state.  432 

superintendent  of  insurance,  431 
must   show   what,  431,   432 
directors  upon,  432 
effect   of,   431 
joint  stock  companies  may  make  when,  431 

with  what  companies.  431 
name  of  new  company,  431 

certificate  of  consolidation  must  show,  432 
new  company  chooses,  431 
powers  of  new  company.  431 
stockholders,  rights  of  dissenting,  432 
vote  necessary  for.  431 
Dividends  —  declared  from  surplus  profits  only.  420 

scrip,   mutual   or   participating   companies   may   declare   when.   420 
amount  of,  420 

declared  only  from  profits,  420 
Examination  of  risks   required,  415 

does  not  relate  to  title  or  incumbrances,  417 
relates  to  physical   condition   of  premises.  417 
Foreign  companies,  when  foreign   to  U.   S. — 

assets  and  investments  deemed  capital  stock  for  what   purposes,  428 
must  be  held  by  trustees  when,  42S 

appointment,  powers  and  qualifications  of  trustees.  428 
capital   stock,  amount   of   determined  how,   428 
liabilities  of,  statement  of.  must  accompany  advertisements  of  assets,  429 

re-insurance  reserve  to  be  included,  429 
License  to   do  business,  revocation   of, — 

violating  provisions  as  to  cancellation  of  policies,  ground  for,  431 
Losses. — 

extent  of,  jury  decides  as  to.  417 
total  —  effect  of  concurrent  insurance  upon,  417 
what   constitutes,  417 
Mutual   companies.      (See  Insurance  Co.'s  —  Other  than  Life.) 

by-laws  of,  must  fix  uniform  rule  of  liability  for  payment  of  losses  and  expenses.  410 
charter  of,  forfeiture  of.  causes  of. — 

refusal   to  make  reports  to   superintendent  of  insurance.  425 

to  permit  examination  of  books,  papers,  etc..  425  .     •  , 

commencing  business  —  amount  of  insurance;    number  and   amount  of  risks  betore, 
409 
amount   of  premiums  paid  before.  409.  410 
dividends,  scrip,  declared  when,  420 


INDEX.  7<jl 

(References  are   to   pages.) 

INSURANCE  COM  PAX  IKS— FIRE— Continued, 
amount  of,  420 
only  from  profitSj  420 
policy   bolder  enl  ii  led   to  when.  420 
examinations  of,  by  court   of  common  pleas, — 
applical  ion  for,  4.12 
examiners  of. —  appointment  of,  432 

fees  of,  amounl  ofj  company  pays,  432 

may  administer  oaths,  examine  agents,  officers,  etc.,  432 

require  production  of  lunik-.,  papers,  etc..   132 
refusal  to  appear  and  testify  i-  contempt,  132 
report  of  —  copy  of  Bent  to  superintendent  of  insurance,   132 

made    when,    432 

had  how  often,  432 
existing  companies,  what  law  controls,    125 
foreign  companies, — 

assets    -  same  amounl  and  description  as  domestic  companies,   126 
invested  according  to  law  of  organization,  126 
what    is    sufficient    capital.   426 
contingent  liability  of,  same  as   domestic  companies,    uii 
premium  notes,  same  amount  of,  as  domestic  companies,  420 
lien  of.  for  contingent   liability  or  premium  notes,  429 
certificate  as  to.   recorded   with  county   recorder,  42'.> 
fees   for,   429 
members  of.'    (See  "Subscribers,"  below.) 

assessments   against  —  evidence   of.   what   is:    parol    proof.    123 
notice  of, —  proven   how.  423 

receipt  of  not    necessary,    123 
waiver  of   formalities   a-   to.    123 
statement   of   president    and    secretary    under    oath    as    to,   effect   of   as    evi- 
dence. 423 
liability  of.  for  losses  and  expenses  —  ceases  when,  410 
limitations    on,    410.    423 
uniform  rule  for,  to  lie  fixed,  410 
policies  of. — 

cancellation  of.   at  request    of  insured,  430 
must  fix  liability  of  insured.  410 

rates  for,  430 
uniform  rule  for  payment  of  losses  and  expenses,  410 
premiums  of  —  amount  before  incorporation,  410 
companies    may   collect    what   in    advance.   4H' 
insured  liable  to  what.  410 
premium   notes  —  indorsement  of  non-negotiability  required,  430 

surrender  of.  upon  cancellation  of  policy,  430 
profits, —  divided  among  assti     d  when.  420 
policy  bolder  entitled  to  share  when,  420 
reserve  fund  accumulated    from,  420 
what.   are.   420 
report--  to  superintendent  of  insurance.      (See  iNSUEANCl     COMPANIES.) 

penalty  for  refusing  to  make.  425 
reserve   fund  —  amount,   source-,  object-,  of.   etc..   420 
Ly-laws  may  provide  for.    120 
none  required  by  section  27G  excepl  premium  not' 
policyholder  entitled  to  scrip  dividend  from  when,  420 
premium   notes   constitutes,   •">:! 
subscribers  to — certificate  as  to  responsibility  of.   when,  410 

liability  of.  limitation-  as  to,  41 0 
subscriptions  to  —  amount  and  number  before  incorporation,  409 
terms  of,   410 
Mutual  protective  associations.      (See  Txsiraxcf.  Co.'s  —  Otiif.1!  tiiax  Life.) 
Policies  of.      (See  also  "Mutual  companies"  above.) 
cancellation  of  — 

at    request   of  insured  — 

penalty  for  violating  provisions  as^to.  4".  1 
power   of  agent  as   to,   418 

provisions   for.   must    lie   inserted   in   policy.   430 
rates  for.  in  case  of  cash  policies.   4-".o 

in  case  of  premiums  paid  in  installments,  430 
return  of  unearned   premiums,   premium   note-,   etc..  430 
when  paid  in  installments.  430 


792  INDEX. 

(References  are  to  pages.) 

INSURANCE   COMPANIES  —  FIRE  —  Continued. 

by  the  company,  terms  of  may  be  fixed  by  contract,  430 
duty  to  cancel  does  not  create  a  debt  as  to  taxation,  430 
conditions   in,   as   to, — 

appraisers  to  de  ide  loss,  416 
arbitration,  416 

estimating  loss  at  actual  value;  cost  of  replacing,  etc.,  416 
incumbrance  —  judgment    on  cognovit   note   is  not  a,   417 
provisions  as   to  examinations   do  not  relate  to,  417 
non-occupancy,   416 

what    constitutes    occupancy,   417 
re-building,    416 
issuing,   requirements  as  to,  58 
liability  of  company   in  case  of  loss,  415,  416 

effect  of — -arbitration  or   appraisal   upon,   417,   418 
claim  for  less  amount,  417 

condition  of  premises  reasonably   apparent,   416 
fraud  or  increased  risk  on,  416 
statements   of  value   of  property  upon,  416,  417 
waiver  by  agreement,   effect  of,  416 
when  two  or  more  policies  on  same  risk,  416,  417 
must  be  placed  through  legally  authorized  agent,  58 
Powers  of, — 

may  not  do  other  classes  of  insurance,  413 

to  insure  against  —  explosions  from  gas,  dynamite,  gunpowder,  etc.,  413 
fire,   412 

lightning,  412,  413 
marine   insurance,  412 
tornadoes,  412,  413 
transit  insurance,  412 
Re-insurance  reserve  —  amount  of,  429 

included  in  liabilities,  when,  429 
Reports  of.      (See  Insurance  Companies.) 

to   salvage   companies,    437,    438 
Risks  of, — 

examination  and   description  of,  415,  416 

does  not  relate  to  title  or  incumbrances,   417 
relates  to  physical  condition  of  premises,  417 
increase  in  —  additional   insurance   is,   417 

question   of,   for  jury,    417 
insurable  value  to  be  fixed,  416 

liability   of   company   on.      (See   "Policies,"  above.) 
re-insurance  of:   pooling,  etc. —  permitted  when.  441 
approval  of  superintendent  of  insurance  as  to,  441 
statement  as  to,  requirements  as  to,  58 
with   authorized  companies,  58 
"structure,"  boiler  and  engine  may  constitute.   417    436 

cellar  and  foundation  wall  not  to  be  considered  part  of.  436 
Stockholders  of  —  liability  of,  for  receiving  unlawful  dividends,  420 
Surplus  profits  —  estimated  how,  420 
Unearned  premiums, — 

are  not  debts  within  section  2730  as  to  taxation,  420 
consists  of  what,  420 
INSURANCE  CO.'S  —  FIREMEN'S  RELIEF.      (See  Firemen's  Relief  Associations.) 
INSURANCE  COMPANIES  —  LIFE. 

Accidents,  insurance  against,  made  by,  when  — 

in  case  of  assessment   (mutual  protective)   companies,  381 
domestic  and  foreign  companies,  367 
Actions   against,    for   losses   on   risks.      (See   also   "Assessment   companies,"   below.) 
statute  of  limitations  as  to,  369 

limitations  regarding  in  policy,  369 
who  may   bring,   369 
Actions  byj  against  members,  officers,  policyholders,  stockholders,  etc.,  369 
Actuary  of,  makes  report  to  superintendent  of  insurance  when,  369 
in  case  of  ioreign  companies,  372,  369 
when  foreign  to  U.   S.,  373,  369 
Agents,  officers,  etc.,  of, —  penalties  for  discrimination  between   insurants,   394 

in  case  of  colored  persons,  394 
American  experience  tables,  use  of.      (See  "Combined  experience,"  below.) 
to  establish  —  rate  of  mortality,  valuations,  etc..  34 


[NDEX.  793 

(  k  fereni  i     an    to  pa 

INSURANCE  COMPANIES  — LIFE  — Continued, 
value  of  policies  —  for  Loans,  368 

for  re-insurance  amount  in  report   to  superintendent   oi   insurance,  370 
in  case  of  foreign  companies,  372,  370 

when  foreign  to  Q.  8.,  373,  370 
in  ease  of   license  Btatemenl    of  foreign  companies,   372,  370 
when  foi eign  to  U.  S.,  '■'>!'■'>.  370 
j  in  determining  reserve  fund   before  declaring  dividends,  369 

Annuities,  companies,  domestic  or  foreign,  may  grant,  purchase,  etc.,  367 

in  case  of  mutual  <>r  stock  companies,  301 
Applications  for  insurance, — 

admissions  of  husband,  effect  of  when  wife  is  beneficiary,  379 

agent  soliciting,  is  agent,  of  company,  377 

assured  not   bound  by,   when  filled  up  by  agent,  376 

construed  favorably  to  applicant,  378 

copies  of  — 

foreign  assessment  company  organized  in  U.  Ss  must  file  with  Sup'1    of  In-., 
must  be  furnished  policyholder  when,  37<i.  377 
during  lifetime  of  assured,  370 
effect  of   failure    to   furnish,   376 
errors,  omissions,  misstatements  in, — 
burden  of  proof  as  to.   378 

company  cannot  defend  on  ground  of,  when,  378 
applies   to   foreign    policies,    how   far,    378 
cannot  he  evaded  by  contract,  378 
false  answers  in,  effect  of,  377 

collusion  of  agent  and  assured  no  defense,   377 
knowledge  of  agent  of  company  as  to,  377 
what  must  be  shown  to  bar   recovery,  377 
forged  by  agent,   no  defense  to  recovery,   377 
"good   health,"  "sound   health,"   meaning  of,   377 
in  cipher,  are  void  when,   377 

must  be  in  ordinary  written  or  printed  language,  377 
refusal  of,  of  colored  persons,  393.  394 

certificate  stating  grounds  of.  required.   304 
truth  of,  company  cannot  deny  when,  376 
Assessment  or  mutual  protective  companies, — 
actions  against.. — 

brought  where,   389 

certain  mutual  benefit  societies  excepted  when.  393 
in  case  of  foreign  companies,  389 
service  in;   sections  5032  to  5053  apply  to,  389 

certain  mutual  benefit  societies  excepted  when,  393 
in  case  of  foreign  companies,  388,  389 
agents   of  —  bond  before  collecting  dues,   assessments,  etc..   392 

penalties   for  unlawful   issue  of  certificate.    390 
assessments, —  bond,  agents  and  officers  to  give  before  collecting.  392 
certain   mutual   benefit  societies   excepted  when,   393 
expenses  can  be  included  in,  when,  390 
assured, — 

age  limit  as  to.  390 

in  case  of  foreign   companies  organized  in  U.  S.,  388 
certain   mutual  benefit  societies  excepted  when.   393 
evidence  as  to.     fled   with   superintendent   of  insurance,   388 
not  applicable   to  accident  insurance,    390 

in   case    of  foreign   companies   organized   in   U.   S..   3S8 
consent    and   knowledge    of.   necessary:    penalty.    390 
fictitious  persons   as;    penalty.    390 
medical  examination  required,  389.  390 

not  applicable  to   accident  insurance,   390 
who    to    make,    390 
sick  or  infirm  persons  as ;   penalty.  390 
business  of  —  companies  guaranteeing  fixed  amounts  must   comply  with   laws  as   to 
mutual   companies.   386,   387 
domestic   companies   organizen   on   mutual    plan   cannot   do,   382 
foreign  companies   organized  on  mutual  plan  can  do.  382 
by-laws   and  constitution  of  — 
amendment  or  change  of,  381 

assent  of  members  necessary.   381 
meeting  for:  notice  of:  vote,  etc.,  381 


794  INDEX. 

(References  are  to  pages.) 

INSURANCE  COMPANIES  —  LIFE  —  Continued. 

superintendent   of   insurance  must  approve,    381 
may  provide  as  to  what,  381,  382 
certain  mutual  benefit  societies  —  are  "not  for  profit,"  95 

excepted   when,   393 
certificate    (policy)    of  insurance, — 
amount  of:   limitations  on,  381 

guaranty  of  fixed  amount  unauthorized  when,  382,  386,  387 
certain  mutual  benefit  societies  excepted  when,  393 
assignment  to  unauthorized  persons  invalid,  when,  384 
assured  in.      (See  "Assured"  above.) 
beneficiaries   under — 

change  of :   rules  of  associations  govern,  382 
exceptions   as   to,    383 

reservation  to  beneficiary  to  make  does  not  pass  to  his  estate,  385 
rules  at  time  of  change,  not  time  of  issue  Governs,  383 
designation  of  improper:  effect  upon  payment,  384 
direction  as  to  who  shall  become,  what  constitutes,  383 
effect  of  marriage  upon,  393 
have  no  vested  rights,  385 
who   may   be,   381,   382 

"  dependent  "  one  engaged  to  marry  assured  is  not,  385 
"  legal  hei-s  "  means  whom,   384 

members  cannot   change  charter  limitation   as  to,    384 
mother,  when.  385 

required  relationship,  effect  of  termination  of,   383 
endowment, — -  guaranty  of  fixed  amount  not  authorized,  382,  386,  387 

certain  mutual  benefit  societies  excepted  when,  393 
funds  arising  from,  not  part  of  decedent's  estate,  383 

payment  of  —  designation  of  improper  beneficiary  does  not  release  from,  384 
failure    to    make    or    make    assessment;    remedy;    averments;    measure    of 
damages,   385 
unlawful  issue  of;  penalties,  390 

physician  or  others  aiding,   390 
charter ;  forfeiture  of.      ( See  "  Reports,"  below. ) 
constitution.      (See   "By-laws,"   above.) 
death   claims.      (See    "Losses"   below.) 
defined  — ■  what  constitutes,  364 
examinations  of  —  cost  of;  paid  how,  387 

superintendent  of   insurance   may   make  when,    387 

certain   mutual   benefit   societies   excepted   when,    393 
exercise  of  franchises  or  powers  contrary  to  law  prevented  by  quo  warranto,  387 

certain   mutual   benefit    societies   excepted    when,    393 
expenses  —  included  in  death  assessments  when,  390 
mortuary   fund   cannot  be  used   for,   390 
paid  by  'fixed  annual  or  special  assessments.  390 
foreign,  organized  in  U.   S. — 

actions  against.      (See  "Actions  against,"  above.) 
agents  of  —  appointment  by  company,  388 

certain   mutual   benefit  societies   excepted   when.   393 
must  be  licensed  by  superintendent  of  insurance,  388 

fees  for,   388 
penalties  for  violating  provisions  of  law  as  to,  389 
attorney  for  service  of  process  upon,  appointment  of,  388 
business  of  —  may  be  accident  or  life",  388 
must  be  on  assessment  plan,  388 

what   constitutes,    389 
mutual  companies  may  do,  on  assessment  plan.  389 
by-laws  —  copy  of,   filed  with   superintendent   of   insurance,    387 

must  show  what  as  to  liability  of  members,  387 
laws  governing,  sections  3630  to  3030i.  388 

certain   mutual   benefit   societies   excepted.    393 
license  to  do  business  in  state, — 

certain   mutual  benefit  societies   excepted   when,   393 

fees   for,   388 

refusal  of,  duty  of  superintendent  of   insurance  as  to,  388 

courts  may  review  when,  388 
renewed  annually.  388 
revoked  when.  388 

for  failure  to  pay  maximum  amount  of  certificate,  388 


[NDEX.  795 

(Reference*  arc  to  pages.) 

INSURANCE  COMPANIES  —  LIFE  —  <  lontinued. 
notice  of,  388 
superintended  of  insurance  issues  when,  388 
what  must   he  lilcd  wit li  superintendent   of  insurance  before,  387 
officers,  etc.,  of,  penalties  for  violating  provisions  of  law   as  t<>. 
powers   of,   388,   389 
reports  to  superintendent  of  insurance,  388 

certain   mutual    lieiielit    societies   excepted    when.   393 
fees  for  filing,   388 

in  case  of  certain  mutual  benefit  societies,  393,  35 
form  of,  superintendent  of   insurance   prescribes,  388 
must   be  made  when  and  as  of  what  date,  388 
reserve  fund,  amount   of,  387 

certain  mutual  benefit  societies  excepted  when,  393 
retaliatory    provisions    as    to,    388 

certain  mutual  benefit  societies  excepted  when,  :','.)  :\ 
service  of  process  upon.  (  See  "  Actions  against,"  above.) 
statement  of  condition  for  license.  .'!X7,  388 

certain  mutual    benefit    societies  excepted    from,   when.   393 
filed   with   superintendent  of   insurance.    387,    388 
form  of,  superintendent  of  insurance  prescribes,  387,  388 
fees  —  for  filing  copy  of  charter,  388 
for  filing  report  s,   388 

in   case  of  certain  mutual  benefit  societies,  303,  '■'<'< 
for  license  to  do  business,  388 
funds  of  —  distribution  of,   regulations   govern,   382 
held  and  used  as  property  of  members,  381 
not  to  be  loaned  to,  or  for  benefit  of  officers,  etc.,  381 
insurance  —  contract  of,  what  constitutes,  383 
laws  governing  — 

are  not  subject  to  laws  for  stock  or  mutual   life   insurance  companies, 
are  subject  to  laws  for  corporations   not    for   profit,   382 
sections  3251,  3252,  3587  to  3629,  do  not  apply  to,  380,  381,  382 
3628,  3629,  as  to  rights  of  creditors,  do  not   apply,  380,  381 
3630a    to    3630f,    3631,    do    not   apply    to    certain    mutual    hem  tit    societies 
when,  393 
losses  —  death   claims, — 

reports  to  superintendent  of  insurance  must  show  what  a-~  to,  385 
certain   mutual    benefit   societies   excepted   when.   393 
meetings  of  —  by-laws  provide  as  to  time,   place,  manner,  etc.,  382 
members  of  — 

expulsion  of  — 

damages    for    wrongful,    384 

action  for,  is  bar  to  action  for  restoration,  384 
power  of,  is  inherent,  384 

committee,  etc.,  may  exercise  when,  384 
unlawful ;    remedy   for.    384 
valid;   effect  on  insurance.  384 
rights  of,  regulations  govern,  382.  383 
who  constitute.    113.   114,  383 
officers,  etc.,  of  —  bond   to  be  given  before  collecting  assessments,  etc..  392 

by-laws  may  provide  as  to  —  appointment,  (lection,  term,  compensation,  duties 
life  tenure  with  power  to  appoint  successor  not  authorized,  383 
powers  and  purposes  of,  381 

granted  by  section  3630,  304 
to  insure  on  "  mutual  stock  "  plan.  364 
reports  of.   to  superintendent  of  insurance.   385 

blanks  for,  superintendent  of  insurance  furnishes,  385 

in  case  of  certain  mutual   benefit    societies,   393 
certain   mutual    benefit   societies   excepted    when.   393 
exemption  from  provisions  of  "Willis  Law.*'  20 
failure  to  make  forfeits  charter  or  franchise,  386 
duty  of  attorney  general  as  to,  386 
superintendent  of   insurance  to  enforce.  386 
fees   for   filing,   388 

in  case  of  certain  mutual  benefit  societies,  393,  35 
requirements   as   to,   365.   386 
treasurer  of  — 

bond   of  —  amount  and   conditions  of,   392 

approved   by    superintendent    of    insurance.    392 


790  INDEX. 

(References   are   to   pages.) 

INSURANCE  COMPANIES  —  LIFE  —  Continued. 

certain  mutual  benefit  societies  excepted,  393 
examined  annually  as  to  sufficiency.  392 
filed   with    secretary   of   state,    392 

renewed  when  required  by  superintendent  of  insurance,  392 
receipts  must  be   paid   to.   392 

certain   mutual   benefit   societies   excepted   when,   393 
trustees  of  — 

by-laws  may  provide  as  to  —  number,  classification,  election,  etc.,  of.  381,  382 
compensation  of..  383 

penalties  against  for  unlawful  issuance  of  certificate  of  insurance,  390 
powers  and  duties  of    383 

cannot  act  individually,  384 
term  of  office  of.  381 
what  constitutes.  364,  389 
Assets  of, —  examination  as  to,  by  superintendent  of   insurance,   32 
invested  how :   in  what  securities,  etc.,  368 

companies  may  change,  sell,  re-invest,  etc..  368 
in  case  of  foreign  companies,  etc.,  375 
Assured.      (See  also  "Assessment  companies"  above.) 

consent  of,  to  transfer,  sale,  etc.,  of  policy,  381 
Beneficiaries.      (See  "  Assessment  companies,"  above;  "  Policies,"  below.) 
Business,  companies,  domestic  or  foreign,  may  do  what,  367 
accident  insurance    (to  persons)    -yes,  367 
banking  business  —  no,    367 

what    is   not    banking   business,    367 
fire  insurance  —  no.  367 
health  and  disability  —  yes,  367 
inland  insurance  —  no,  367 
life  insurance  —  yes,  367 
marine  insurance  —  no,   367 

on  assessment  plan, —  mutual  companies  of  this  state  cannot  do,  382.  389 
foreign  companies  may  do,  382,  389 
Capital  stock  of.      (See  "Mutual  or  slock  companies,"  below.) 
Classification  ofj  364 

"  assessment  companies,"  what  are.  364 
"  mutual  or  stock  companies,"  what  are,  364 
Colored   persons.      (See   "Discrimination"  below.) 

Combined  experience  or  actuary's  tables.       See  "American  experience  table"  above.) 
use  of  in  stipulated  premium  plan  for  computing, — 
limited  payment  policy  reserve,  404 
minimum  premiums.  403 
required  reserve  fund,  404 

valuation  of  investment  or  limited  policies.  404 
Consolidation   of, — 

penalty    for   violating  provisions    as   to.   368 
petition  for  —  commission  to  hear  and  determine,  367,  368 
hearings  upon ;  time,  place,  etc.,  367 
must   show   what,    367,    368 
notice  of  pendency  of,  367 
order   of  commission  under,   367,   368 
presented  to  superintendent  of  insurance.  367 
stockholders  or  policy  holders  may  be  heard,  367 
Creditors   of  insured, — 

insurance  exempt  from  claims  of.  when. — 
if  for  benefit  of  wife  or  children,  378 
in  case  of  foreign  companies,  380 
if  taken  by  wife  upon  husband's  life.   380 
premiums  paid  in  fraud  of,   rignts  in  proceeds   of  policy,  379,   381 
in  case  of  foreign  companies.  380 
what  must  be   shown   to   establish,   380 
Death   claims,   examination   as  to  unpaid,   by  superintendent   of  insurance,   32 
Debts,  company  may  receive  what  in  payment  of,  368 
Directors.      (See  "Mutual  or  stock  companies,"  below.) 
duties  of,  as  to  reports,  369 

in  case  of  foreign  companies,  372,  369 
when    foreign    to    U.    S,    373,    369 
Discontinuance  of  business,  36 

delivery  of  securities  deposited,  upon,  36 
examination  of  books  and  papers,  36 


INDKX.  70.7 

(References  arc  to  pages.) 

INSURAXX'E  COM  l\\  \  l  ES  —  LIFE  —  ( lontinued. 
notice  as  to,  36 
Discrimination  between  insurants  forbidden,  :'>'.u 
in   case  of   colored  persons,   393,    39  1 

certificate  of  reason  of  refusing  application  of,  304 
penalty  for  violating  provisions  as  to,  394 
payable  to  common  school  funds,  ..'.n 
Dividends, — 

discrimination  between  insurants  as  to,  304 
paid   only    from    surplus   funds,   369 

surplus  determined  how,  369 
unpaid,  valuation  of,  made  how  and  when,  34 
Examinations  of,  by  superintendent  of  insurance,  32 
expenses  of,  paid   how,  32 
rules  governing,  etc.;  requirements  of,  32,  34 
Foreign  companies.     (See,  also,  " Assessment,  etc.,  companies"  above,  " Stipulated  pre- 
mium  plan"  below.) 
actions  against,  regarded  as  domestic  when  licensed  to  do  business,  Ml 
agents   or  attorneys  of, — 

companies   foreign  to  U.   S.   must   appoint    what.    373 
appointment  continued  bow    long,  373 

duplicate  of  letter  appointing  filed  with  superintendent  of  insurance,  373 
license  to  do  business  must  show  name  of.  :;7  t 
failure  of  company  to  procure  license,  effect  of.   (See  "  License  to  do  business") 
for   service   of   process.      (See  "Service   of  process,"   below.) 
license  of,  necessary:    superintendent    of  insurance   grants,   .'!70 

certified  copy  of,  recorded   with   county   recorder.   370.  373,  374 
in  case  of  companies   foreign  to  U.  S.,  374 
must  show  what,   370,   374 
renewal    of,    when,    373,    374 

revocation  of,  for  discrimination  between   insurants,  305 
supplemental  reports  of  companies  foreign  to  U.  S.  verified   by,  374 
capital  stock  of. — 

amount  of,  same  as  home  companies,  370 

cash  assets  in  lieu  of,  accepted  of  mutual  companies,  370 
must  be  fully  paid  in,  370 

must  be  invested  as  required  by  laws  of  >tate  where  organized,  370 
deposit    with    superintendent  of   insurance.    371 
action   to   collect  claims    payable    from,   38 
amount   of;    consists   of   what,    371 
.      in  case  of  companies   foreign  to   U.   S.,  373 
companies  may  change  securities,  collect   interest,  etc..   when,   375 
in   case  of  companies   foreign   to   I".   S„   373 

for  benefit  of  policy  holders  in  U.  S.  in  case  of  companies  foreign  to  L".  S.,  373 
may  be  with  officer  of  home  state,  when.  371 

certificate   as    to.    furnished    superintendent   of    insurance.    372 
value  of  securities  determined  how,  371 
license  to   do  business.      (See,  also,  "  Agents,"   above.) 
companies    must    have,    370 

whether  incorporated  or  not.  370 
duration  of,  371,  375 
failure  to  procure,  effect  of. — 

agents,  acts  of,  not  invalidated  by.   371.  374 
duty  of  to  procure,   i-   personal,  374 
not  a  defense  to  action  on  bond  of.  371,  374 
assessments,  company  or  receiver  cannot  sue  to  recover.  370 
assured   may  sue  notwithstanding,  371 
bond  and  mortgage,  company  may  sue  on.  371 
policy  not  void   because  of,    370 
premiums,  payment  of.  nol   excused  by,   370.  371 

company  or  receiver  cannot   sue  to  recover.  370 
grant  of,  is  ministerial   act.   371 

superintendent    of    insurance    makes.    370 
discretion  of,  as  to,  371 
is  not  bar  to  quo  uxirranto,  371 
powers  of  state  as  to,  370 
renewal  of,  when  and  to  whom,  373 

in  case  of  companies    foreign  to   U.   S.,    374 

in   case  of   revocation   for   removing   case  to   U.   S.    courts.    375 
revocation   of  —  causes   for,   35 


798  INDEX. 

(References  are   to  pages.) 

INSURANCE  COMPANIES  —  LIFE  —  Continued. 

company   removing  ease   to  U.  S.  courts,   etc.,   subject  to,  375 

validity  of  provisions  as  to,  37G 
for  discrimination  between  insurants,   395 
injunction,  not  mandamus  lies  to  prevent,  371 
statement  for  —  requirements  as  to,  372,  369 
in  case  of  companies  foreign  to  U.  S.,  373 
reports    of,   to    superintendent    of    insurance.      (See    "  Reports"    below.) 
service   of  process   upon. — 

when  companies  cease  to  do  business   in   state,   375 
appointment  of  agents  for,  375 
by  mail,  when,  372,  375 

in  case  of  companies  foreign  to  U.   S.,  373,   372 
may  be  on  former  agent,  when,  375 
when    doing    business    by    agents,    372 

appointment  of  agent  or  attorney  for,  by  companies  foreign  to  U.   S.,  373 
upon  agent,  consent  in  writing,  372 

in  case  of  companies  foreign  to  U.  S.,  373,  372 
Fraternal  beneficiary  associations.      (See  Fraternal  Beneficiary  Associations.) 

are  not  insurance  companies,  396 
Insurance    ( indemnity ) , — 

husband   may  take  for  benefit  of  wife  and  children,  378 
exempt  from  claim  of  creditors,  when,  378,  379 
in  case  of  foreign  companies,  380 
Interest,  rate  of,  for  examinations,  valuations,  etc.,  34 
Investments.      (See    "Assets"   above.) 
Laws   as   to, —  apply   to   prior   existing   companies,    378 
Liabilities,    obligations,    etc.,   of, — 

valuation  of,  made  how  and  when,  34 

not  required  when,   in  case  of  foreign  companies,  34,  35 
License  to  do  business.      (See  Insurance  Companies.) 

in   case   of    foreign   companies.      (See   "Foreign    companies,"   above.) 
revocation  of,  discrimination  between  insurants,  cause  for,  395 
Loans  of  funds  —  contrary  to  statute  are  void,  368 
substantial  compliance  with  statute  sufficient,  368 
upon   bond   and   mortgage,    368 

pledge  of  bonds  or  mortgages,  368 
policies,   368 
Medical   certificates  —  in  cipher,  void  when,  377 

must   be   in    ordinary    written   or    printed    language,    377 
Mortality,  rate  of,  established  how.  for  examination,  valuation,  etc..  34 
Mutual  benefit   societies.      (See  Mutual  Benefit  Societies:    Religious  Associations: 

••  Assessment  companies,"  above.) 
Mutual  protective  companies.      (See  "  Assessment,  etc.,  companies,"  above.) 
Mutual  or  stock  companies, — 

annuities,   may  grant,   purchase,   etc.,   364 
articles  of  incorporation  of.   364,  365 

attorney  general  must  examine  and  certify,  365 
certified  copy  of,  secretary  of  state  to  furnish,  365 
filed  with  secretary  of  state,  364 
must  be   signed   by   incorporators,    364 
must  show  what,  364 
record  of,  365 
business  of, —  . 

commencing  of,   certified  copies  of  papers   to  be   recorded  with  county  recorder 
before,  366 
use  of,  as  evidence  in  actions,  366 
kind  or  character  of  —  articles  must  give,  364 
what    permitted:    what   prohibited,    366,    367 
capital    stock   of, — 

amount  of, — articles  must  give,  365 
minimum   permitted,    365 

paid   in,   all   before    commencing  business,    365 
assessments  on,  on  account  of  impairment,  33 
increase  of, — 

certificate  of,  filed  with  secretary  of  state,  366 
invested  same  as  original  capital,  366 
stockholders   must   authorize,   366 
investment   of  —  all   before   commencing   business,   365 
change  of,   company  can  make,  366 


INDEX.  799 

(References  are  to  pages.) 

INSURANCE  COMPANIES—  LIFE-  -Continued. 

in  what,   .';<;;> 

note  and  mortgage  given    for  stock   considered   as.   365 
subscription  to,  books  for,  opening  of,  notice  of,  etc.,  305 
must  be  kepi  open  bow  long,  365 
definition,  what  constitutes,  364 
deposit  with   superintendent  of  insurance-.   366 
accommodation  securities,  effect  ofj  :;<>(> 
action  to  collect  claims  payable  from,  38 
amount  of;    consists   of  what,    366 
before  commencing  business,    366 
change  of  securities,  etc.,  300 
certificate   of;    record,  etc.,  of,  3G6 
companies  must  make,    364 

fee  for  recording  assignment  of  mortgage,  company  to  pay,  3G6 
interest  and  dividends  on,  company  collects   when,  300 
is  for  benefit  of  policy  holders,  :i<;o 

title  of,    in   superintendent  of   insurance   in    trust,   366 
assignment   of   mortgage   must   be    recorded,    366 
directors,   trustees,    ollicers.       (See    "  Itirctlors,"   above.) 
election  of,  articles  to  give   manner  and   time  of,   365 
number  of, —  articles  must  give,   364 

increase  of,  stockholders  or  members  may  make,  3G4 
qualifications  of, —  majority  citizens  of  state,  305 

must  be  stockholders  or   members.   364 
vacancies,   articles  to  give   manner   of  filling,    365 
incorporators  of. —  duties  of,  as  to  opening  books  of  subscription,  3G5 

number  of,  364 
name   of, —  articles   must   give,   364 
limitations  as  to,   364 
secretary  of  state  to  approve,  365 

does   not   apply  to   foreign   companies,   365 
effect  as  to  company   claiming  prior   right,   365 
superintendent  of  insurance,  duties   and   powers  of,   as  to,  3G6 
officers  of.      (See  "Directors,"   above.) 
organization    of  —  completed    when,    !i65 

notice  of,   365 
place  of   business,  articles  to  give,   364 
powers  of  —  granted   by  section  3587,   3G4 
manner  of  exercise,  articles  to  give,   364 
to  insure  on  "  assessment  plan,"  3G4 
purposes  for  which   formed,  364 
what  constitutes,  364 
Policies  of.      (See  "Assessment  companies"  above,   "Stipulated  premium   plan"  below.) 
actions  to  enforce,  defenses  to  —  as  to  application.      (See  "Applications"  above.) 

suicide  as  defense,  378 
amount  payable  under,  discrimination  between  insurants  as  to,  394 
in  case  of   colored  persons,   303 
penalty   for  making,   371,   372 
applications  for.      (See  "Applications,"  above.) 
assignment   of, —  married   women  may  take,   381 
may   sell,    assign    or    surrender,    381 
assured  must  consent  to,  381 
beneficiaries   under.      (See  "Assessment  companies.''   above.) 

death  of,  who  entitled, —  in  case  of  policies  payable  to  wife.  381 

policy  reverts  to  assured,  380 
divorce,   effect   of,   when  wife   is.    370 
interest  of,  in  premiums  upon  cancellation,  377 
not  necessary  parties  to   cancellation   by  assured,   when,   377 
who  may  be, — 

children  may  be,  of  father.   378 

in  case  of  death  of  wife  of  assured,  381 
wife  may  be,  of  husband,  378 
wife   as, — - 

effect   of  —  admissions   of  husband.   370 

divorce,   379 
husband  cannot  modify  right*   of.   379 

agency  of:    ceasing  of.   etc..    :'>7M 
may  insure  life  of  husband,  380 

creditors  have  no  claim  on,  380,  381 


800  INDEX. 

(References  are  to  pages.) 

INSURANCE  COMPANIES  —  LIFE  —  Continued. 

payment  of  premiums  by  husband  will  defeat  her  right,  380 
regarded  as  feme  sole,  when,  379 
cancellation,  surrender  or  rescission  of, — 

assured  may  make  for  false  representation  of  agent,  377 

beneficiaries  not  necessary  parties  to,  377 
cannot  be  made  for  fraud  of  agent,   when,  377 
husband  cannot  make   when  payable   to   wife,   379 
conditions  in,  section  3625  as  to  false  answers  in  application  does  not  apply  to,  377 
issued  to  minors  not  void,  364 

minor  may  avoid,  when,  364 
loans  on,  companies  may  make,  368 

limitation  as  to,  368 
mutual  as  to  profits.      (See  "Premiums,"  below.) 
terms  and  conditions  of  —  discrimination  between  insurants  as  to,  394 

in  case  of  colored  persons,  393,  394 
tontine.      (See  "Premiums"  below.) 

statement  of  dividends,  etc., — foreign  companies  to  make  to  holder,  when,  373 
valuation  of,  35 
fees  for,  35 

made  how  and  when,   34 

not  required  of  foreign  companies,  when,   34,  35 
Policy   holders.      (See   "Assured;"   "Policies  —  beneficiaries  under,"    above.) 
Premiums, — 

discrimination  as  to,  between  insurants,   394 
in  case   of  colored   persons,    393 
penalty  for   making,   393,  394 
notes  given  for,  by  minor  not   void,   364 

may  be  avoided,  when,  364 
notice   of  maturity   of. — 

failure  to  give  will  excuse  payment,  when,   379 
foreign  mutual  or  tontine  companies  must  give,  373 
conclusive  proof  of,  what  is,  373 
effect  of  failure  to  give,  373 
must  show  what,  373 
to  whom  given,  373 
paid  in  fraud  of  creditors,  inure  to  their  benefit,  when,  378,  379,  381 

what  must  be  shown  to  establish,   380 
recovery   of,   on  policy   fraudulently   issued,   378 
Property  of,  unauthorized,  who  may  question  title  to,  368 
Real    estate, — 

companies  may  acquire  what,  368 
by  foreclosure,   368 

in   securing  payment  of  debts,   etc.,   368,   369 
necessary  for   its  business,   368 
companies  may  loan  on  bond  and  mortgage  of,   368 

on  pledge  of  bond  and  mortgage  of,  368 
must  be  sold  when,  369 

certificate  of  superintendent  of  insurance  for  postponement  of  sale,  369 
Re-insurance  of  risks, — 

penalty    for   violating  provisions  as   to,   367,   368 
permitted  without  petition  to  what  extent,  367 
petition    to    contract    for. — 

commission  to  hear  and  determine,  367 
hearings  upon:  time,  place,  etc.,  367 
must  show  what :  terms  and  conditions  of,  367 
notice  of  pendency  of,   367 
order  of  commission  under,   367,   368 
presented   to  superintendent  of   insurance,   367 
stockholders  or  policy   holders  may  be  heard,  367 
Reports  of,  to  superintendent  of  insurance, — 
companies  must  make,  309 

in  case  of  foreign  companies,  372 
when   foreign   to  U.   S.,   373 
exemption   from   provisions  of  "  Willis  Law,"   20 
failure  to  make,  penalty,  374 
requirements   as  to:    must   show  what,  etc,   369 
in  case  of  foreign  companies,   372 

items  of  "  incidental."  "  all  other  expenditures,"  not  permitted,  372 
when  foreign  to  U.  S.,  373,  374 


INDEX.  801 

(References   are    to    panes.; 

'  INSURANCE  COMPANIES  — LIFE  — Continued. 

supplementary  by  companies  foreign  to   I.  s.  required,  .';7l 
Stipulated  premium  plan,  business  upon, — 
acceptance  of  provisions  as  to, — 

articles  to  l><'  amended  to  conform  to,   102 

filed  with  secretary  of  state,  403 
consent   of  superintendent  of   insurance   necessary,   402 

filed  with    secretary  of  .state,,  403 
effect  of,— upon  existing  contracts  or  liability,  403 

upon  pending  actions  or  rights.  40.'i 
existing  C panics   may    make,    when,   402 

ceasing  or   relinquishing, — 

notice  requiring,   for  non-payment  of  claims.  404 
notice  of,  upon  application  of  company,  406 
withdrawal   of  deposits   upon,   406 
commencement  of,    102 

amount  of  insurance,  number  of  insurants,  etc.,  necessary  to.    102 
certificate  of  superintended  of  Insurance  as  to  compliance  with  law  necessary,  402 
contracts  or  agreements  noi    specified   in   policy    forbidden,  406 
definition   of,   402 

deposit  with  superintendent  of  insurance,  402 
action  to  collect  claims   payable  from,  38 
amount  of:   object  and  purpose  of,  402 
what  securities  authorized.  402 
withdrawal   of,    upon    ceasing    to    do    business,    406 

duties   of  superintendent    of   insurance    as   to,    406 
discrimination   between    insurants    forbidden,   405,   406 
dividends  may  be  paid  when  and  bow,  404 
foreign    companies, — 

certificate  of  authority  of,   to  do   business,    105 

duplicate  riled  with   superintendent    of  insurance,  405 
issued   by  superintendent    of   insurance,   405 
refusal   of,  when,   405 

renewal  of,  wben:   refusal  to  make;  hearing  as  i<>.  405 

requisites    for,   evidence   as   to   reserve    fund,    collection    of    premiums,    etc., 
as  to,  405 
reserve    fund,    requirement s    as    to,   405 

evidence   as  to,  to  be  furnished   superintendent    of  insurance,  405 
retaliatory   provisions  as  to,  405 
incorporators  of,    number  of,  401 
laws   governing. — 

laws  as  to  life   insurance  companies.  402 
laws  as  to  superintendent  of  insurance.  402 
sections  206  to  289,  3587  to  3631,  402' 
liabilities  of.  policy  holders  not  personally  liable  for.  406 
objects  and  purposes  of,  401.  402 

insurance    of    health,    life,    etc.,    402 
organization  of,   under  sections  358S   to  3580,  401 
policies  of. — 

cash    values    authorized,    404 

reserve  set  apart  for,  must  be  stated,  404 
,  holders  of.  not  personally  liable   for  losses,  etc.,  406 

investment  policies,  valuation  of,  404 
limited   payment,  authorized,  404 

limitations  and  requirements  as  to.  404 
reserve  set    apart   for   must   be   stated,  4 04 
valuation  of,  404 
must    show   what,    404 

as  to  amount  of  indemnity  to  be  paid   under.  404 
time    of    payment.    404 
payment  of  —  -obligation   of  company   as  to,   404 
refusal   or   failure   to  make.   404 

duty  of  superintendent  of  insurance  as   to,   4<'4.  405 
scaling  of;   for  failure  to  pay  assessment  for  reserve  fund,  403 
terms  and  conditions  of.  varying  forbidden,  when,  406 
premiums, — 

minimum  amount  of:   calculated  how,  403 
payment  of.   may   be.  when,   403 
rebate   of,   etc.,   forbidden,  when,   406 
reserve  fund, — 


802  INDEX. 

(References  are  to  pages.) 

INSURANCE  COMPANIES  —  LIFE  —  Continued, 
amount  of:  computed  how,  403 
impairment  of,  restored  how.  403 

assessment  of  members   for,  when.   403 

failure  to  pay,  scaling  policy  because  of,  403 
notice  of;   requirements  as  to,  403 
surplus,  distribution  of,  when,  how  and  to  whom.  404 
taxes,  liability  for,  same  as  life  insurance  companies,  406 
trustees,   liability  of,    165,   402 
Tontine.      (See   •'Policies,'-  above.) 
Unsound  companies,  what  constitutes,  33 
INSURANCE   COMPANIES  —  LIVE   STOCK.      (See,   also,   Insurance   Co's.— Other  than 

Life.) 
Capital   stock  —  amount  necessary,   409,   412 

amount  paid  in  before  commencing  business,  409,  412 
Foreign  companies, — 

deposit  for  benefit  of  stockholders  required,  426 
amount  of:  deposited  where,  426 
Mutual   protective   associations, — 
articles  of  incorporation  of, — 
acknowledgment    of,    439 

certified  copy  of,  evidence  of  incorporation,  etc.,  439 
filed  with  secretary  of  state,  439 
incorporators  must   subscribe,    439 
must  show  what,  439 
assessments  to  pay  losses,  expenses,  etc., — 
constitution  and   by-laws  regulate,   438 
power  to  make  and   collect,  438 
charter  of,  forfeiture  of, — 

superintendent  of  insurance  enforces  by  quo  warranto,  440 

what  subjects  to, — exercising  franchise  and  powers  contrary  to  law,  440 

existing  companies  failing  to  qualify  under  provisions  of  statutes.  439,  440 
failure   to  restore  required  amount  of  risks,   when,   440 
insolvency :    what    constitutes,    440 
refusal  to  make  reports,  etc.,  439 
commencing  business, — 

applications,    amount   necessary   before,   440 

sworn  statement  as  to,  filed  and  approved  by  superintendent  of  insurance,  440 
existing  companies  must  file,  441 
bond  of  treasurer  to  state,  filed  and  approved  before.  440 
certificate  of  superintendent  of  insurance  authority  for.  440 
constitution  and  by-laws   of. —  adoption,   etc.,    of,   439 
regulate  —  assessments,  43S 

bond,  amount  of,  of  secretary  and  treasurer,  440 
election  of  directors,  officers,  etc.,  439 
directors    of, — 

election  and  term  of.  439 
by  members,    439 

constitution   and  by-laws   regulate,   439 
incorporators  elect   first,   439 
must  take  oath  of  office;   who  administers,  441 
examinations  of,  by  superintendent   of  insurance,  440 

expense  of ;    limitation,   etc.,   440 
existing  companies  must  qualify  under,  special  provision,  441 
incorporators, —  number   and    qualifications   of,    438 

sign  and  acknowledge  article,  439 
insolvency   of, —  effect  of;    what  constitutes,   440 
laws   applicable  to  —  section   3654   is,   439 
members  of,  persons  obtaining  insurance  are,  113,  439 
name  of,  articles  must  give,  439 
objects,  powers,  etc.,   of,  439 
articles  must  give,  439 
can  insure  members  only,  439 
cannot  insure  non-residents,  439 
officers   of,   election   of,   439 
organization   of,   when,   439 
place  of  business,  articles  must  give,  439 

policies   or   certificates   of  —  failure  to   pay,   remedy   upon,   438 
president   of  —  election    of,    439 

duty  of,  as  to  —  reports  to  superintendent  of  insurance,  439 


INDEX.  803 

(R(  i,  i,  I,,,     are   to  pa 

INSURANCE  COMPANIES  — LIVE  STOCK  —Continued. 

statements   before   commencing    business,  440 
reports    to   superintended    oi    insurance, 

blanks  [or,  superintendent  of  insurance  to  furnish,  439 
exemption   from  provisions  of  "Willis   Law,"  20 
penalty   for  refusal  to  make,   (:'>'•> 

requirements  as    to:    musl    bdow    what,   etc.,    139,   424 
risks,  amounl       to   commence  business,    I  I" 
to  continue  business,   140 

effect    of    Lmpairmenl    ofj    140 
restoration  of :  within  whal  time,  140 

certificate    of   superintendent    of    insurance   ;■-    to,    440 
effed   <>f  failure  to  make,    i  tu 
sworn   statement   as   to.    l  10 
secretary  of  —  bond  of;  amount  and  approval,   140 

duty  of,  as  to — reports   to  superintendent    of   insurance,  439 

statements    before   commencing    business,    4  10 
election   of,   439 
treasurer  of  —  bond  to  association:   amounl.  approval,  440 
bond   to   state  —  amount,   approval,   440 
existing    companies    must    file,    441 
filed   with    superintendent   of   insurance.  440 
election  of,  43!) 
vice-president,   duty   of    as   to   reports    to   superintendent   of    insurance.    4:::i 

INSURANCE    COMPANIES  — MARINE.      (See    INSURANCE    COMPANIES  —  FlBE :     INSURANCE 

Companies  —  Other   than    Life.) 
Consolidation  of, — 

articles  of  new   company,   consolidated  company   chooses  which   to  act   under.   4.11 
capital  stock  —  apportioned    how.  432 
limitations    upon   amount   of,   432 
surrender    of   old    certificates,    432 
certificate   of, — 

filed  with  secretary  of  state.  432 

superintendent  of   insurance,   431 
must  show  what,  431,  432 
directors  of  old  companies  select  first  directors  of  new,  432 
effect  of,   431 
joint  stock  companies  may  make,  when,  431 

with  what  companies,   431 
name  of  new   company. — 

certificate   of    consolidation    must    show,   431,   432 
consolidated    company    chooses,    431 
powers   of   new  company.  431 
stockholders,   rights  of  dissenting,  432 
vote  necessary  for,  431 
Mutual  companies  —  members  of,  liabilities  of,  in  inland  navigation.  423 
risks  of,  re-insurance  permitted,  when,  441 

approval   of   superintendent   of   insurance.   441 
Organization  of.      (See  Insurance  Co's  — Fire:  Insurance  Co's  — Other  than  Life.) 
INSURANCE   COMPANIES  —  OTHER  THAN  LIFE. 
Agents  of, — 

agent  of  another  company  is.  when,  418 
company  bound  by,  when,  418 
powers  of,  418 

may  waive  payment  of  premiums,  418 
to  appoint  sub-agents,  418 
solicitor  is,  418 

condition  making  him  agent  of  assured  void,  418 
sub-agent  is.  when,  418 
Articles   of   incorporation.      (See   "mutual  protective  associations,"   below.) 
approved  by  attorney  general,  409 

copy   of,   filed    with  "superintendent  of  insurance,  409 
filed  with  secretary  of  state,  409 
record  of,  409 
Assets   of  —  investment    of.    how.    in    what.   411 

By-laws,  etc.      (See  "Mutual  companies,"  -  Mutual  protective  associations,"  below.) 
approval  of.  by  superintendent  of  insurance.  415 
copy  of,  filed  with  superintendent  of  insurance,  415 
directors  mav  make  what.  415 
may  —  provide  for  classification  of  directors  of  mutual  companies,  411 


804  -       INDEX. 

(References   are   to   pages.) 

INSURANCE  COMPANIES  — OTHER  THAN  LIFE  —  Continued, 
regulate  transfer  of  stock,  419 
Capital   stock   of.      (See   "mutual    companies,"    below.) 
amount  of  required,  409 

amount  paid  in  before  commencing  business,  409 
certificate  as  to  buna  fides  of,  412 

certified   copy   recorded   by   county   recorder,   412 

effect  of,  as  evidence,  412 
filed  with  superintendent  of  insurance,  412 
increase  of,  419 

certificate  of,  filed   with   secretary  of  state,  419 
must  show  what,  419 
stockholders  consent   necessary,   419 
investment  of:   how,   in  what,  411 
shares  of, — 

transfer  of,  by-laws  regulate;  made  on  books,  419 
voting   power  of,   411 
subscriptions  to  —  amount  before  organization,  410 
books  for,  opening  of,  410 
must  be  in  writing,   410 
Charter,  forfeiture  of,  for  violating  provisions  as  to  application  of  dividends  of  existing 

companies  to  stock  notes,  429 
Commencing   business  —  authority  for,   what  is,  412 

examination  before.   412 
Debts  of.      (See  "liabilities,"  below.) 

Directors   of.      (See   "Mutual   companies"    "Mutual   protective   companies"   below.) 
duties  and  powers  of,  as  to  by-laws:  election  of  president  and  secretary,  415 
election  of  first,  410 

liability  of,  for  unauthorized  investments,  412 
number  of;   qualifications   of,  410 
increase  or   decrease  of,  411 
record  of  proceedings  of,  to  be  kept,  415 

stockholders  may  inspect,  415 
vacancies,  filled  how,  415 
Dividends. — 

application  of  what,  to  stock  notes,  by  existing  companies,  429 
must  be  invested  same  as  capital  stock,  429 
penalty  for   failing  to   comply,  429 
Examination   of,   by   superintendent   of   insurance, — 
before  commencing  business,   412 

certificate  as  to  filed  with  superintendent  of  insurance.  412 
certified  copy  of,   recorded  by  county  recorder,   412 
effect  of,  as  evidence,  412 
in  case  of  increase  of  capital  stock,  419,  412 
Foreign   companies, — 

actions  against  brought  where.  427 
agents  of, — 

license  of,   to  do   business  required,   426 

certified  copy  filed  with  county  recorder,  42G 
must  show  what,  426 

renewal  of,  when   company  foreign  to  U.  S.,   428 
certified   copy    filed   with   county  recorder,   428 
must  be  authorized  to  accept  service,  427 
any  other  business  forbidden,  426 
banking   business    forbidden,   426 

capital  stock  of  —  amount  of,  same  as  domestic  companies,  426 
invested  according  to  laws  of  state  where  organized,  426 
paid-up  according  to  laws  of  state  where  organized,  426 
debts  of.      (See  "Liabilities"  below.) 

deposit  with  superintendent  of  insurance  by  companies  foreign  to  U.  S.,  428 
action  to  collect  claims  payable  from,  38 
amount  of:  consists  of  what,  428 
for  benefit  of  policy  holders  in  U.  S.,  428 
may  exchange,   collect  interest,  etc.,  428 
value   of   securities,   428 
doing  business  in  state, — 

license  for  necessary,  426 

failure  to  secure,  quo  warranto  the  remedy,  426 
incorporated   and    unincorporated    companies   included,   426 
revocation  of  —  continues  how  lonjj,  428 


INDEX. 

(References   are   to    pa 

INSURANCE  COMPANIES  —  OT1 1  Kl I  THAN    LIFE      Continued. 

for  entering  into  combination  to  control   rates,  percentage,  etc.,  4-7 

for  removing  cause  to  U.  8.  courts,    1-7 
statement   for, —  made   by    whom,    427 

requirements  as  to:  must  snow  what,  etc.,  427,  423 
superintendent  of   insurance  grants,    126 
discretion  as  to,  426 
Lloyd's  policy,  liability  of  underwriters  of,  is  several,  426 
reports  of.     (See  also  "  Reports,"  below.) 

additional  require  when  foreign  to  U.  S.,  428 
companies  must  make.  423,  424,  428 

copy  of  last  to  home  state,  filed  with  superintended  of  insurance,  when,   127 
requirements  as  to,  same  as  of  domestic  companies.    12s 
service  of  process  on — 

agents  must  be  authorized  to  accept,  42't 

agreement  as  to  —  bled  with  superintended  of  insurance,  427 

must  provide  what,  427 
by   mail  —  agreement   must    authorize,  427 
sufficiency   of,   427 
Incorporators  of, — 

certificate  of,  as  to  lona  fides  of  capital  stock,  412 
open  books   for  subscription  to   stock,  410 
Insurance  solicitor  is  agent  of  company.  418 
Investments  of  —  in  what  securities,  411 

penalty  for  making  unauthorized.  412 
Members.      (See  "Mutual  companies;"   "Mutual  protective  companies,"  below.) 
Mutual  companies.      (See  also  "  Mutual  protective  companies,"  below.) 
capital   stock  of,   deemed   impaired   when,  421 

assessment  to  restore,  when,  421 
debts,  etc.,  of.  limitations  on  power  to  incur,  421 
directors    of,    classification    of. — 
by-laws  may  provide  for.   411 
term  of  office  in   case  of,   4 1  1 
distinction  between,  and  mutual  protective  associations,  410 
members  of, — 

assessments  against, — 

action  to  enforce,  422.   423 

requirements  as  to  executions  in,  423 
to  pay  losses  and  expenses,  421 

amount  of;  rule  as  to  discretion  of  directors.  421,  422 
made  when  and   how;    notice    of,    42! 
payment  of;    failure,  effect  of,  421,  422 
who  only  can  make.  422 
to  restore  impaired  capital  when,  421 
directors  must  be,  410 

liability  of,   for   losses   and   expenses,   421 
default  does  not  terminate,  422 
directors  may   compromise  when,  422 
insolvency,   etc.,  of  company,  no  defense.   422 
loss  and  payment  by  company  does  not  extinguish,  422 
misrepresentation  oi  agenl  as  to.  no  defense.  422 
non-compliance   with    charter    no   defense    when,   423 
none  —  after  ceasing  to  he  a   member.   422 

prior   to   membership.    421,   422 
statute   of   limitations    begins   to   run    when.    422 
voting  powers  of,  411 
who  are,  421 
name  of,  must  contain  word  "  mutual,"  423 
policy  and  premium  notes, — 

cancellation  of, —  liability  of  policy  holder  upon.  422 

power  of  directors  as  to,  421 
forfeiture  of, — failure  to   pay   assessments   works.   422 

waiver  of,  422 
on  stock  plan,  issued  when,  423 

amount  of  limitation  upon.  423 
renewal  receipts,  word  "mutual"  must  appear  upon.    12:! 
word  "mutual"  must  appear  upon  policies.    123 
power  of,  to  insure  on   stock   company  plan.  423 
re-insurance,  amount   required   for.   determined,   how.   424 
re-organization  of   mutual   protective   associations   as.        (See  below.) 


806  INDEX. 

(References   are   to   pages.) 

INSURANCE  COMPANIES  — OTHER  THAN  LIFE  —  Continued. 

Mutual  protective  associations.      (See  "Mutual  companies."  above.) 
articles  of  incorporation  of, — 

certified  copy  of,  evidence  of  incorporation,  etc.,  434 
filed  with   secretary   of  state,  43-4 
incorporators  must  subscribe,   434 
must  show  what,  434 
assessments  to  pay  losses, — 

advance   payments   are   not   when,   433 
are   trust   funds,   433 
constitution  and  by-laws  regulate,  433 

misapplication  of:  purchase  of  assets  of  similar  company  is,  433 
power  to  make  and  collect,  433 
specific   sum   in   lieu  of,  not  authorized,   433,  435 
assets  —  required  for  re-organization  as  mutual  company,  435 
constitution    and   by-laws    of  — ■  adoption,    etc.,    of,    434 
change   of,   members   not   directors   make,   435 
members  must  sign,  434,   435 

presumed   to   know,   435 
waiver  of,  by  agents,  435 
directors  of  — 

election  and  term  of  —  constitution  provides  as  to,  434 

incorporators   make  of   first,   434 
must  be  members,  433,   434 
not  liable  for  losses  when,  434 
distinction  between,  and  mutual  companies,  410 
incorporators  of  —  number  and  qualifications  of,  433 
laws  applicable  to  —  sections  3635,  3650,  are  not,  410,  421,  435 

section  3654  is,   435 
members  of  — 

liability  of  —  cannot  be  a   fixed  sum,  433 
failing  to  sign  constitution,   435 
only  for  losses  while  members,   433 
non-residents   cannot   become  when,   433 
persons  signing  constitution  are,  113,  434 
name  of,  articles  must  show,  434 
objects,  purposes,  and  powers  of,  433,  434 
articles    must  give,    434 
can  insure  members  only,  434,  435 
cannot  do  business  on  stock  or  mutual  plan,  433 
limitations  as  to,   433,   434 

may  insure  —  against   fire,   lightning,   tornadoes,   433 
what  structures,   433 
officers  —  election,  etc..  of.  constitution  provides  as  to,  434 
incorporators    elect   first,    434 
duties  as  to  reports,  434 
place  of  business  of,   articles  must   give,  434 
policies,   etc.,  of, — 

application  to  re-organize  as  mutual  fire  company  must  show  what  as  to,  435 
effect  of  re-organization  as  mutual  fire  company  upon,  436 
profits,  making  of,  unauthorized,  433 
re-organization  of,  as  mutual  fire  company. — 

application  to  superintendent  of  insurance  as  to,   435 

examination  by  superintendent  of  insurance  upon,  435 
must    show    what,    435 
notice  as  to,  435 
articles  of  incorporation  to  be  executed,  435,  436 

certificate  of  superintendent  of  insurance  as  to  compliance  with  law,  435 
filed  with  secretary  of  state,  435 
fees   for,  436 
authorized  when,  435 

effect  of,  upon  —  constitution  and  by-laws,  436 
policies,  etc.,  436 
reports  to  superintendent  of  insurance. — 

blanks  for,  superintendent  of  insurance  to  furnish,  435 
exemption  from  provisions  of  "  Willis  Law,"  20 
penalty  for  refusal  to  make,  435 

requirements  as  to:  must  show  what,  etc.,  434,  435,  423 
trustees.      (See  "Directors."  above.) 
Name  of.      (See  "Mutual  companies,"  "Mutual  protective  associations,"  above.) 


INDEX.  8U7 


(References  arc  to  pages.) 

INSURANCE  COMPANIES -OTHER  THAN  LIFE  -  Continued. 
secretary  of  state  may   reject,   when,    109 
superintendent  of  insurance  may   reject  when,    109 

Obiects  or  purposes.      (See  "  I'oirrrs  of,     below.) 

0Ks   of-b!.nd    of.    probate    ju.lg,    ma>     approve    when      133 

certificate  of  under., ail.,  a.  to  bona  fides  oi  capital  stock,   U2 

compensation  ofj  415 

directors  appoint  what,  415 

Ssr'^'^S  SSJE-'SS*-  , .*.  ~+*~? , 

S^^tiX  agent  of  . ^oid,  418 

contract  of  insurance  may  be  by  parol  when,  419 

approval  not  necessary  when,  419 

is  not  within  statute  of  frauds,  419 

policy  is  evidence  of,  419 

takes    effect    when,    41!) 
delivery  of,  immaterial  when,  419 
executed  how,  418 

issuance  of,  equity  will  compel  when.  419 
kind  of,  limited  to  class  of  the  company,  423 
renewal  of,  by  parol,  419 
renewal  —  receipts  must  show   what,  4Z.5 
Powers  of,  412,  413 

limitations  as  to  kind  of  insurance,  413 

to  borrow  money,   411 

to  cause  itself  to  be  insured,  41.3 

t0  ^inlt  accidents  to  persons  or  property  or  employee*  412 
fire,  lightning,  tornadoes,  412,  4U 
fidelity  of  persons,  etc.,  412 
health  of  persons,  412 
live  stock,  412 
property  in  transit,  412 
safe  keeping  of   personal   property,   412 
titles  to  real  estate,  412 
to  loan  money  on  bottomry  or  respondentia,  413 
Premiums  — agents  may  waive  payment,  when.  418 

Prpsirlpnt directors  choose  from  number,  4io 

dviS   and  power  of  as  to  reports  to  superintendent  of  insurance,  423 
subscribes  policies,  4 IS 
Real  estate  —  may  hold  what.  421 

""Sr^i*"-  of  insurance  ,,.,,,.„„„,-_*.  421 
Be-insuraS  of  risk,  -  a'nonnt  required  for,  determmed  how,  424 
pnmnanies  may  make,  when,  441 

Approval  of   superintendent   of   insurance  necessary,  441 
in   what  companies,   441 
Reports  to  superintendent,  of  insurance,— 

1  eompaniesP  domestic  and  foreign must  make.  423,  424 
exemption  from   provisions  of  "Willis  Law,     20 
filed  with  superintendent  of  insurance,  4-4 

!SlSi,^.toJ=ft«*S .etc.,  424,  4*5 
Ke^-duS^wer,  ££6  £•*  to  superintend  of  in.nran,,,  423 

must  attest  policies,  418 
Stockholders  — directors  must  be,  410 

voting  power  of,  411 
Vice  president,   duties  and  powers  of.  as  to  reports.  42., 
tvst  i>  \X<  F  CO  'S-PLATE  GLASS.     (See  Instance  Compass  -  Other  than  Life.) 
'   Risks  of.  re-insurance  permitted,  when.  441 

im-roval  of  superintendent  of  insurance.  441 

appio^ioi      I  Insurance  Co.'s  —  Accident:     Insurance  Co  s  — 

INSURANCE  CO.'S -SURETV     (See  Instance     ^^  Co,s_0ther  tiian   Life: 

SS3L    00.-B -Title    Guaranty:     Safe    Deposit    and 
Trust  Companies. 
INSUR\NCE  CO.'S-TITLE   GUARANTY.     (See   Insurance   Co.'s -Accident:     Inst* 
liNBL  ance  Co.'s  — Other  than  Life.) 

Capital  stock  of, — 


808  INDEX. 

(References  are  to  pages.) 

INSURANCE  COMPANIES  —  TITLE  GUARANTY  —  Continued, 
all  must  be  paid  up,  515 
amount  of,  515 
Deposit  with  state  treasurer,  515 
amount  of,  515 
change  of  securities,  515 
invested  how,  515,  411 
interest  and  dividends  on,  515 

transfer  cf  deposit  with  superintendent  of  insurance,  515 
Powers  of,  412,  413,  414,  515 

may  do  what  classes  of  business,  412,  413,  414 

accident  insurance  to  persons  or  property,  412 

employers   against   accidents,   etc.,  to  employees,   413,   414 
bonding,  412 
fidelity  guaranty,  412 
title  guaranty,  412 
may  not  do  other  classes  of  business,  413 
to  make  and  guarantee  loans,  515 
to  take  charge  of  real  estate,  515 
INSURANCE  DEPARTMENT.     (See  Superintendent  of  Insurance.) 

INTEREST, 

On  bonds  and  other  indebtedness) — cumulative,  when,  200 

On  subscriptions  to  stock  —  company  can  pay  only  from  profits,  116 

Rate  of, 

in  case  of  specially  chartered  companies.  523 

in  examinations,  valuations,  etc..  of  life  insurance  companies,  34 
on  bonds  and  notes  of  corporations,  150,  152 
in  case  of  railroad  companies,  200 
street    railroad    companies,    200 
Unpaid,  not  to  be  included  in  profits  for  dividends,   170 
Usurious. — 

by  banks  — effect  of.  100 

may  be  set  up  before  or  after  judgment,  529 
tender  of  legal  amount  unnecessary.  529 
corporations,  on  same  footing  as  individuals,  108 
effect  of  charging.   109 
in  case  of  banks,  109 
INTER-LOCKING    FIXTURES,    SAFETY    DEVICES,    ETC.      (See    Railroads:     Railroad 

Crossings.) 
INTER-STATE  COMMERCE. 

Foreign  corporations  engaged  in,  sections  148c,  148d  do  not  apply.  11.  15 
Receipts  from,  taxable,  when.  69 
INTER-URBAN  RAILWAYS.      (See  Street  Railway  Companies.) 
INTOXICATING  LIQUORS. 

Sale  of,  within  certain  distances  of  agricultural   fairs,  460.  461 
arrest  for.  without  warrant,  460,  461 

who  may  make,  460 
seizure  and  disposition  of  articles  used  in,  461 

INVESTMENT  COMPANIES.  ETC.      (See  Bond  and  Investment  Companies.) 
INVOLUNTARY  PAYMENT. 

What  is,  69 
IRON. 

Rate  of  freight  on  pig-iron  and  iron  ore,  264 
IRON  COMPANIES.      (See  Manufacturing  and  Mining  Companies.) 
IRON  MINES. 

Companies  to  operate  may  manufacture  iron,  569 

Owners  or  operators  of,   may  construct   freight  way  or  private  railroad  when.  240,  241 

JAILS,  LOCKUPS,  STATION  HOUSES. 

Keepers  of,  to  receive  persons  arrested  by  railroad  police,  293 

JOINDER  OF  PARTIES.      (See  Parties.) 
JOINT   STOCK  COMPANIES. 

Foreign,  process  served  on,  how,  583 

JUDGMENTS. 

Against  corporations. — 

appeal  from,  stockholder  entitled  to,  when,  150 


INDEX.  boy 

(References  arc  to  pages.) 

JUDGMENTS  —  Continued. 

error  to,  stockholder  may  prosecute,  when,   L50 
ouster,  effect  of,  99 

stockholder  cannot  collaterally    impeach,  when,   140 
Against  foreign  corporations, — 

obtained  by  service  on  agent,  entitled  to  faith  and  credit,  '6 
Creditor's  bill  to  collect  stock  subscriptions,  founded  on,  when,  1  MJ 

lien  upon  filing,   141 
Former,  defense  to  enforcemeni  <>t"  -dock  subscriptions,  when,  I  m 
Lien  of  —  againsi    railroad,  in  state  courts  includes  what,    198 
for  freight,  storage,  etc.,  charges,   87 
JUDGMENT  CREDITOR. 

Lien  of  —  upon   liling  creditor's  bill,   141 

upon  property  acquired  by  appropriation  by  railroads,  185 
upon  railroad  property,  198 

enforcement  of,  when  mortgaged,   198,    199 
Remedy  of,  when  property  is  mortgaged,  198,  199 
JUDICIAL  NOTICE. 

Courts  will  not  take  of  special  acts  of  incorporation,  92 
JURY.      (See    Appropriation  :     Adulteration    of    Food,     etc.:     Children:     Cruelty     to 

Animals.  ) 

JUSTICE  OF  THE  PEACE. 

Actions  before,  against  railroads,  brought  where,  623 

Fees  of  —  for  services  as  to  repairs  of  toll  roads  outside  of  municipalities,  333 

Jurisdiction,  duties  and  powers  of, — 

as  to  —  adulteration  of  foods,  etc.,  466 
children,  employment  of,  466 
cruelty  to  animals,  children,  etc.,  466 
corpse,  interment   of,  40 

fair  grounds  —  carrying   away    fruits,   injuring  building-,   etc.,   interfering   with 
exhibits,  trespassing  upon,  etc.,  -to:; 
unlawful  sale  of  liquors  on  or  near;  arrest -:  seizures,  460 
railroads  —  posting  time  of  arrival  of  trains.  214 

stopping  passenger  trains  at    certain   stations.   213 
roads,  turnpikes,  etc.,  of  companies, — 
demanding  —  illegal  toll,  334 

toll  over  portion  —  abandoned  in  municipalities.  332 
out  of  repair  in  municipalities,  333 
detaining  travellers   over  toll  roads   unreasonably.   334 
obstructing,   etc.,   341 
repairing  outside  of  municipalities,  333 
turning  to  right,  etc.,  334 
Summons  in  action'before.      (See  Service  of  Process.) 

KNIGHTS  OF  PYTHIAS. 

Provisions  as  to  fraternal  beneficiary  associations  do  not  apply  to,  401 

LABOR.      (See  Mechanic's  Liens.) 

LABORER. 

Secretary  of  corporation  is  not,  within  section  6355,  127 
LAND.      (See  Real  Estate.) 
LAWS.      (See  General  Laws:     Revised  Statutes:     Special  Laws.) 

Construction  of,  by  officers,  binding  how  far,  60 

Corporations  governed  and  controlled  by  what,  91 

in  case  of  companies  created  prior  to  1851,  91,  92 
special  provisions  govern,  when.   168 

Evasion  of,  by  organization  in  foreign  state,  no   defense,   14 

For  consolidation  of  railroads  apply  to  what  companies.      (See  Railroad  Compantj  - 

Insurance,  applicable  to.      (See  Insurance:     Insurance  Companies,   1 

Reciprocal  and  retaliatory.      (See  Retaliatory  Provisions.) 
LAW  LIBRARY  COMPANIES.      (See  Library,  Lecture,  etc.,  Cojipami:-.  i 
LEASES.      (See  under  various  companies.) 

LECTURE  ASSOCIATIONS.      (See  Library.  Lecture,  etc.,  Compantj 
LEGAL  EXISTENCE.     (See  Corporate  Existence.) 
LEVY.     (See  Execution:     Taxation.) 

LIBEL. 

Corporations  liable  for,  108 


810  INDEX. 

(References  are  to  pages.) 

LIBRARY    LECTURE,   ETC.,   COMPANIES    (including   Industrial   Training   Schools,   Law 

Library.   Library.   Lecture,  Mechanics'   Institute,   Natural  His- 
tory, Scientific,  Widows'  Homes,  etc.,  Companies,  Associations 
or  Societies ) . 
Acceptance  of  provisions  as  to,  483 

certificate  as  to  —  acknowledgment  of,  483 
filed  with  secretary  of  state,  483 
Agents,  officers,  etc.,  of  —  directors  or  trustees  cannot  be,  483 

duties  of,  enforcement  of:  removal  of,  484 
Articles  of  incorporation  of  —  may  prescribe  what,  482,  483 
Bonds  or  notes,  mechanics'  institutes  may  issue,  483 
Directors  or  trustees  of, — 

appointment  or  election  of  —  articles  may  prescribe  mode  ot,  483 
compensation  of,  none,   483 
duties  of  —  enforcement  of,  483,  484 
ineligible  to  salaried  office  or  agency  of,  483 
liability  of,  in  certain  mechanics'  institutes,  483 
removal  of.  on  hearing,  etc.,  484 
tenure   of   office,    articles   may   prescribe,    483 
Funds  of, — 

accounts,  reports,  etc.,  of  gifts,  receipts  and  disbursements,  483 
filing,  etc.,  with  clerk  of  court,  483 
enforcement  of,  483 
organic  rules  as  to,  483 
Objects  or  purposes  of  —  additions  to.  483 
certificate  of,  acknowledgment  of,  483 
filed  with  secretary  of  state,  483 
Officers  of.      (See  "Agent"  above.) 
Organic  rules  for  —  articles  prescribe  what,  483 
permanencv  of,  483 

Property articles  may  prescribe  mode  of  administration  and  management  of,  483 

power  to  acquire,  hold,  etc.,  in  case  of  widows'  homes,  etc.,  572 
Keal  estate,  mechanics'  institutes  may  mortgage,  483 
LICENSE  TO  DO  BUSINESS.     (See  Foreign  Corporations:   Insurance  Companies,  etc.; 

and  under  other  companies.) 
LIENS.     (See  Capital  Stock:  Dividends:  Freight:  Judgment:  Judgment  Creditor:  Insur- 
ance Co.'s  —  Fire:  Mechanics'  Lien:  Etc.) 
I JFE  INSURANCE.      ( See  Insurance  Co.'s  —  Llfe.  ) 
LIGHTNING-  INSURANCE.     (See  Insurance  Co.'s  — Fire:  Insurance  Co.'s  —  Other  thaw 

Life.) 
LIME  STONE. 

Freight  charges  on.  rate  of.  264 
LIMITATIONS,  STATUTE  OF.     (See  Statute  of  Limitations.); 

LIS  PENDENS. 

Application  of,  to  transfer  of  stock,  144 
LITERACY  ASSOCIATIONS,  ETC.     (See  Library,  Lecture,  etc.,  Companies.) 
Fees  for  filing  articles  of,  9 
Powers  of,  to  lease  theater,  113 
LIYE  STOCK.  '  (See  Cattle.) 

Perishable  property  and  may  be  sold,  when,  88 
LIVE  STOCK  COMMISSIONERS. 

Duties  of,  as  to  violations  of  regulations  as  to  shipping,  576 
LIVE  STOCK  INSURANCE.     (See  Insurance  Companies  —  Live  Stock:  Insurance  Co.'s 

Other  than  Life.) 
LOANS.      (See  under  various  companies.) 
By  corporations. — 

duty  of  creditors  as  to,  151 
in  excess  of  capital  stock,  150 
power  to  make,  108,  150 
preferred  stock  regarded  as,  when,  95,  152 
LOAN  COMPANIES.     (See  Building  and  Loan  Associations:   Savings  and  Loan  Co.'s.) 

Burglary  insurance  companies  may  insure,  445 
LOCOMOTIVES.      (See  Railroads.) 
LODGES.  ORDERS,  ETC.     (See  Secret  Societies  ) 

Of  benevolent,  charitable,  or  religious  description. — 

provisions  as  to  fraternal  beneficiary  associations  do  not  apply  to,  401 
reports  not  required  of,  401 


INDEX.  8ii 

( References  arc  to  pa 
LODGES,  ORDERS,  ETC.— Continued. 

Of   fraternal    beneficiary    association*.       (See    !•  i:  \  1 1  i:  \  \i.    BENEFICIARY    ASSOCIATIONS.) 
Of  employees  of  trade,  firm,  or  corporation,  reports  no1  required  of,  when,   W] 
LODGE  ROOMS,  ETC.,  BUILDINGS   FOE. 
Company  to  build, — 

corporations  not  having  capital  stock  may  hold  Btock  in,  395 
election,  etc.,  of  directors  by,  etc.,  395 
liability  of,  as  stockholders,  395 
LOTS  —  CEMETERY.     (See  Cemetery  Associations.) 
LUMBER. 

Freight  charges  on,    rate  of,   264 

MACHINE  SHOPS.      (See  Railroads.) 

Owner  or  operator  may  construct  freight  way,  when,  240 
MAIL  TRAINS.     (See  Railroad  Trains.) 
MANAGING  AGENT.     (See  Agent.) 

MANDAMUS. 

Lies  when:   when  not, — 

for  refusal  of  permit  to  disinter  body,  40 
to  compel  advertisement  of  street  railway  route,  49 
attorney  general  to  commence  quo  warranto,  629 
inspection  of  books  by  stockholder,   14ti 
issuance  of  —  bonds,  etc.,  197 

certificate   of   incorporation,    101 
new  stock  certificate,   147 
restoration  to  membership  in  assessment  insurance  company,   384 
running  of  street  cars,  298 
telephone   company  to  furnish   service,    323 
transfer  of  stock,   145 
to   prevent  revocation  of   license   of   insurance    company   to  do   business,    34,   58 
to  test  amount  of  taxes  to  be  paid  by  foreign  insurance  companies,  58 

MANSLAUGHTER. 

Locomotive  engineer  guilty  of  when,  637 
MANUFACTURING  AND   MINING   COMPANIES. 
Accounts   of  —  assessors   may    inspect,   566 
kept  at  principal  office,  566 
must  show  what,  566 
Action  against  mining  company  brought  where,   579 
Articles    of,   may  prescribe  for   construction  of  railroad,   etc.,   568 
Business  of,  carried  on  where,  568 
Capital  stock  of  — 

accounts  must  show  what  as  to,  566 

consolidation  agreements  must  show  what   as  to,   568,  271 
railroad  companies  cannot  purchase  of  mining  companies,    176 
Coal  or  iron  mining  companies  may  manufacture   iron.  569 
certificate  as  to,  requirements,  569 

filed  with  secretary  of  state,  569 
vote  of   stockholders  necessary,   569 
Consolidation   of  — 

agreement  for,  568,  270.  271 

adoption  of,  to  be   certified   upon,   568,   271 
effect  of,  when  perfected,  568,  273 
filed    with   secretary   of  state.   568,   271 
must  prescribe  what.  568.  271 
prior   agreements  confirmed,    568.    271 
submitted  to  stockholders  of  each  company.  568,  271 
conveyances  of  franchises,  rights,  property,  etc.,   to  new  company.  568,  275 
powers   of  new  company.   568,    273 
sections    3381.    3382    apply  to.    568 
stockholders'  meeting  to  authorize,  568.  271 
notice    of:    waiver,    etc.,    568.    271 
vote  at,  by  ballot,  what  necessary,  568.  271 
takes   effect  when,    568,    273 
Directors  of  — 

consolidation  agreements  must  eive  number  and   residence  of,  56s.  Z71 
duties  and  powers  of   as  to   consolidation.    568.    271 
number  of.  change  in,  168 
Dissolution   or   voluntary    surrender   of   charters. — 

accounts  and  statements,  court  may  order  filed   when.   598 


812  INDEX. 

(References   are   to   pages.) 

MANUFACTURING  AND  MINING  COMPANIES  —  Continued, 
causes  for^   598 

discretion  of  court  as  to:   not  reviewable.  598 
judgment    for,   rendered   when,    598 
petition  for,  by  stockholders ;    number  of,   598 
filed   where;    in  what  court,   598 

hearings   upon,   before  referee  or   master:    notice  and   order   for,    598 
must  show   what,   598 
notice  of  pendency  of,  598 
stockholders  may   withdraw   from   when,    598 
must   be   legal,    not   equitable,   598 
Iron  companies  may  manufacture  steel  when,   567 
Name  of  consolidated  company,  agreement  must  give,  568,  271 
Objects  and  purposes  of, — 

extension    of,    permitted    when,    566,    567 

certificate   of  —  filed   with    secretary    of   state,    567 
requirements  as  to;   must  show  what,  etc.,  567 
majority  vote   of   stock   necessary,    566 
Officers  ofj — 

number  and  residence  of,  consolidation  agreements  must  give,  568,  271 
principal  accounting,  must  be  resident  of  state,  566 
Place   of   business   of    mining    companies, — 

certificate  of  coal  and  mining  companies  as  to  manufacture  of  iron  must  show,   569 
change  of,  in  case  of  companies  owning  railroads,   2 1 1 
Powers  of, — 

to  acquire,  hold,  etc.,  real   and  personal  property,   568 

outside  of   state,    568 
to  acquire,  hold,   etc.,  stock  of  railroad,  etc.,  companies,  568 

consent    of    stockholders    to,    568 
to   construct   railroads,   etc.,   when,    568 

none   to  appropriate  property    for,    568 
provisions  of  oh.  2,  §  3270  et  seq.  apply,  568 
Principal   office    of  —  must   be   kept   Avhere.    560 
establishment,    change,    etc..    of;    notice,    566 

in  case  of  mining  companies  owning  railroad,  211 
MAPS,    PROFILES,    ETC.      (See  Railroads.) 

MARINE   INSURANCE.      (See   Insurance   Co.'s  — Fire;    Insurance   Co.'.s —  Marine:    In- 
surance Co.'s  —  Other  than  Life.  ) 
MARKET  HOUSE   COMPANIES. 

Market  houses  of  —  construction,  maintenance,  etc.,  of,  567 

diseased  or  decayed  meats  or  vegetables,  sale  of,   in,   567 
false  weights  and  measures,  use  of,  in,  567 
rent   of   stalls,    etc.,    in,    567 

discrimination    in,    forbidden,    567 
rates   of,  to  be  posted,   567 
rules  and  regulations  as  to  quantities  and  terms  of  sale,  forbidden,  567 
to   he   used   for  what    purposes,    567 
Powers    of,    567 
Sewers  of, — 

compensation  for  tapping  and    asing,   567 
power,   etc.,    to   build,    etc..    567 
Streets,   obstruction  of,   powers  as  to,   567 
MASONS. 

Provisions  as  to  fraternal  beneficiary  associations  do  not  apply  to,  401 
MASTER   COMMISSIONER. 

Appointment  and   duties  of,   upon  petition   for  dissolution   of  corporation,   594 
MATERIALS.      (See  Appropriations,  etc.;  Mechanics'  Liens.) 

MAYOR. 

Jurisdiction,    duties    and    powers    of. — 

as  to  —  adulteration  of  foods,  etc.,  466 

appointing  directors  of  collateral  loan  companies   in  certain  cities.   517 
approval,  etc.,  of  appointment  of  agents  of  humane  societies,  465,  466 
fair    grounds,    pleasure    grounds,    orchards,    etc.. — 

carrying   away    fruits,    injuring   buildings,    interfering    witli    exhibits,    tres- 
passing upon,  etc.,  463 
children,  employment  of.  466 
cruelty   to   animals,    children,    etc.,    466 
signature  of.  not   necessary  to  street  railway  grant.  50 
Summons  in  action  before  justice  of  peace  served  on  when,  623 


INDKX.  813 

(References  are  to  pi 

MECHANICS. 

Mutual  benefit  society  of.  (   See  l.vsi  RANGE  Co.'fl       Life.) 

not  subjeel   to  sections  3030a  to  363lf,  303]   when,  393 

Schools,  colleges,  etc.,  may  hold  shops,  machinery,  etc.,  for  teaching,   \'l 

MECHANIC'S  INSTITUTE.     (See  Charitable  Tbusi  Companies;   Libbaby,  Lectube,  etc, 

(  lOMPANIES.) 

MECHANIC'S  LIENS. 
Affidavit  for, — 

against  canal,   plank   road,  railroad,   streel    and   electric    railway,   turnpikes,   public 

st  rUCl  UK'S,   <4c, — 

filed  when  and  where,  89 
must  show  what,  89 
against   railroad   companies,   84 
failure  to    make,  effect  of,   84 
filed  when   and   where,   84 
must    show    what,    84 

provisions  as  to  must  be  strictly  complied    with,  86 
Arbitration  of  disputed  claim,  in  case  of  railroads,  85 
Claims   under,   against  railroad, — 

aggregate   of,    limitation    upon,   80 
individual    claims,    limitations    upon,    86 
settlement  and  disposition  of  disputed,  85,  86 
waiver    of    objection,    whal     is,    86 
Contract  for  construction   of   railroad,   depot    buildings,    water   tanks,   etc.,    musf    stipu- 
late whaf   as  to  priority  of  payments,  83 
Enforcement  of, — 

action    for  accounting  against  railroad,    S."> 
plaintiff    in,    85 

separately    stating   and    numbering    claim.    s;> 
injunction  against  operating  canal,  turnpikes,  railroad-,  streel  and  electric  railways, 
etc..   S«> 
Engineer's  measurements,  estimates,  etc., — 

as  to  canals,  turnpikes,  railroads,  street   and  electric  railroads,  etc. 
penalty    for  incorrect  or  inaccurate.   Si) 
Extension  of  time,  effect  of  in  case  of  railroad-.   85 
Limitations  of  time, — 

as   to   continuance   of  lien   against   canals,   turnpikes,   railroads,    street    and   electric 
railroads,  etc.,  S9 
against   railroads,    84 

disputed   claims   against    railroad   applies    to    when,   86 
Mortgages,   priority   of,   over  lien  on  railroad-.,   si.  85 
Notice    of.    against    railroad  —  failure   to   make,    84 
must   show   what.   84 
recorder  of  county  gives  when,   84 
served   on  whom,   when,   where.    84 
substantial    compliance    essential.    85,    86 
"  Owner  "  in  railroad  lien  law  includes  whom,   86 
Payment   of  — 

examination  of  claims  before,  by  contractor  or  sub-contractor,   85 
notice   of.    to   contractor   or    sub-contractor.    85 
Priorities  between  lien  holders  in  case  of  canal-,  turnpikes,  railroad-,  -tied   and  electric 
railroads,   etc.,   89 
in   case  of  railroad,    85.   Sfl 
Promissory  note,  effect  of  taking,  in  case  of  railroad  companies,  85 
Section  3207,  as  to  lien  on  railroads  not  applicable  lo  streel   railroads,  S4 
Sub-contractor,  contract  with   railroad  to  stipulate  what  as  to  priority  of  payments.   83 
What  entitles  to, — 

hoarding   railroad   construction   hand-.    83 
labor   and   materials    for    construction   of, — 

canals,   plank  roads,  railroad,   street  and   electric   railroads,   turnpikes,   etc.,   88 
public  structures,   88 

railroads,   tracks,   depots,  water  tanks,  etc..  83.  88 
supplies,  tools,   etc.,   furnished   railroad   contractor    or    sub-contractor,   86 
What   is  covered  by,  84,   88 

electric  light  plant  not  part  of  railroad  when.   85 
Who  entitled   to.   against   canals,  turnpikes,  railroads,  street  and   electric  railroads,   84, 
85.  S8 

MEDICAL   COLLEGES,    SOCIETIES,    ETC.      (See   Corpse.) 


814  INDEX. 

(References   are   to   pages.) 

MEETINGS. 

Corporate.      (See  Memfsers.  Stockholders;  also  under  various  companies.) 
for   organization,   etc.,    118 

notice  of,  118 
notice   of   not  required  —  in   case  of  adjourned,   123 
in   case  of  general   and   stated,   123 
Of   various  boards.      (See   Board   of   Appraisers   of  Railroads:    State  Board  of   Ap- 
praisers   and    Assessors:    State    Board    of    Equalization 
for  Banks.) 
MEMBERS  OF  CORPORATION  NOT  FOR  PROFIT.      (See  also  under  various  companies.) 
Dues  of,  form  for  regulation  as  to,  671 
Expulsion  of.      (See  Expulsion.) 

Injunction  by,   against  breach  of  trust  by  corporations  or  majority  of  members,   107 
Meetings  of, — 

for  adoption  or  amendment  of  regulations;    notice  of;   vote  necessary,  etc.,   136 
for  amendment  of  articles;    notice  of;  vote  necessary,  etc.,  102 
for  election  of  trustees,  notice  of,  etc.,  123 
form  for  regulations  governing,  670 

order  of  business  at,  form  for  regulations  establishing,  672 
quorum,  regulations  may  provide  as  to,    137 
form  for  regulations  as  to,  670 
Qualifications   of  —  regulations   may  provide  as  to,   137 
forms   for  regulations,   668 

MEMBERS  OF  CORPORATIONS  NOT  FOR  PROFIT. 
Rights  of  —  as   to   property,    114 

as  to  voting,  113,  114 

seceding,    114 
Suspension   of.      (See   Expulsion.) 
Trustees  must  be,   128 
Who  are  or  may  become,  113 

MERCHANTS. 

Commission  or  forwarding. 

lien   of,   for  freight,  storage,  etc.,  charges,   87 

action  to  enforce,  87 
notice  by.  of  receipt  of  freight  at  destination,  86,  87 
unclaimed    freight.      (See   Freight.) 

MERCHANTS'  EXCHANGE.      (See  Chamber  of  Commerce.) 

MESSENGER  OR  SIGNAL  COMPANY. 

Agents,  employees,  officers,  etc.,  of.      (See  "Officers''  below.) 

Articles  entrusted  to,  forging  name  of  receiver  to  receipt  for,  321 

Books   and   papers   of  —  examination,    inspection,    etc.,    of   by   state   board   of  appraisers 

and  assessors,  79,  80 
Definition  of, —  includes  what,  77 

Excise  tax  on;    amount,  levying  of:    collection   of,   etc.,   78,   80 
exempted   from   provision   of  "  Willis   Law,*'   20 
failure   to  pay,   80 

tangible   property   not   exempt   from   taxation,    80 
Managing  agent  —  chief  officer  in  state.      (See  "Officers"  below.) 
Messages  of  —  delaying  transmission  or  delivery  of,  321 
divulging   contents  of,   321 
forging  name  of  receivers  to  receipt  for,  321 
neglecting   to   transmit   or   deliver,   321 
Mortgage  of  —  record  of,    151 
Officers  of, — 

examination  of  by  state  board  of  appraisers  and  assessors,  79 

penalty    for    refusing    to    testify,    80 
reports  made,  filed,  etc.,  by,  when,  77 
Reports  to  state  faiditor. — 

blanks  for,  auditor  prepares  and  furnishes,  78 
duties  and  powers  of  officers  as  to,  77 
failure  or  refusal  to  make,  79 
must  show  what  as  to, — 

character    and    nature   of   company,    77 

gross  receipts,   78 

name   of   company,    77 

officers  —  names  and  address,  77 

organization  of,  laws  and  state  of,  77 

principal    office,    location    of,    77 


[NDEX. 

i  Mm    .  are  to  pages.) 

METERS.      (See  Electric  Limit   and    I'owi.i:  < '■imi'AMBSj    Gas    Meters.) 
MILITARY  ACAD  KM  I  ES. 

Academic  board  of  —  consists  of   whom,    179 

may   make  and    enforce    rules,   He.   47'.l 
Board  of   visitors  of-   -consists   of   whom,  -IT'.t 

duties  and  meetings  of,  -J"'.! 

report  of,  to  Legislature,  IT'.t 
Commandant  of  cadets,  member  of  academic   hoard,  479 
Professors  of,  members  of  academic  board,  47'.» 
Rules  and  regulations  of, — 

academh    board    makes    and   enforces,   479 

governor  must  approve,   479 
Superintendent   of  —  appoints    visitors    when,    470 

member  of  academic  board,  47!) 

MINERAL  OR  MEDICINAL  SPRINGS. 

Appropriation  of  land  where  situated,  l>v  ceniet-ery  association  cannol   be  mad,-  when,  357 
in  case  of  cities  of  1st  class,    Lst  grade,  2d  class,  3d  and    HI,  grades,  357 
'  MINES. 

Kates  of  toll   for  hauling  products   of,  331,  332 
MINING   COMPANIES.     (See  Manufacturing    and    Mininq    Companies.) 

MINORS. 

Appropriation  of  property  of,  agreement  as  to.      (See  APPROPRIATION  OF   I  BOPEBTY  > 
Deposits  in  saving  and  loan  associations  by,  504 
Members    of    building    and   loan   association,    554 

MINUTES. 

Approval  of,  effect  of,   126 

As   to  amendment   of   articles,   661.    662 
MISMANAGEMENT.      (See  Negligence.) 

MISNOMER. 

Corporation,   effect   of,    in   pleadings,    112 

Payee  of  stock  subscriptions,  effect  of,  139 

MISTAKES.      (See  Articles   of  Incorporation.) 

MONOPOLY.     (See  Franchises.) 

MONUMENTS.      (See  Cemetery   Associations.) 

MORGUE. 

Location   of,   near   dwellings  forbidden  when,   360. 

MORTALITY.  , 

Tables  to  determine  rate,   etc.,  of.      (See  Insurance  Co.  s  — Life.) 
MORTGAGES.      (See  Chattel   Mortgages:    see   also   under  various   companies.) 
Acceptance  of,  151 

Agreement  to   execute,   not   a   preference  when,    167 
Assent  of  stockholders  to,  what  is,  151 

filed   with   county   recorder    when,   151 
Claims  for  money  advanced  for  interest,  taxes,  etc.,  not  superior   to  when,    19 1 
Conditions  in,   effect    of,   upon   bonds    secured.    197 
Corporations  may  give  to  secure  bonds,  notes,  etc.,   150,   152 
Defective,  rights  of, — 

as  against  general   creditors,   201 
subsequent  mortgages,  201 
Execution  of, — 

by  stockholders  instead  of  corporation,  150 
duty  of  creditors  as  to,    151 
in  a  foreign  state,  150 
Foreclosure   of, — 

personal  judgment  for  deficiency,   151 

by  trustee  against  one  promising  to  assume  bonds,   151 
purchase  upon,  by  director,  set  aside  when.    151 
Preferences  by   way  of  —  in  case   of  insolvent   corporation,    167 
President  pro  tern,  of  corporation  cannot  make  when,  126 
Trustees  in.  to  secure  bonds,  duty  and  power  of,  151 
What  may  be  invested  in, — 

assets   or   accumulations   of    companies. — 

in   case  of  credit  guaranty  companies.   441,   366,  365 
farm    laborer's    associations,    564 
insurance  companies  other  than  life,  411 
life   insurance   companies.    368 
savings  and  loan  associations,  505 


816  INDEX. 

(References   are  to   pages.) 

MORTGAGES  —  Continued, 
capital   stock. — 

in   case  of  credit  guaranty  companies,   441 
insurance  companies  other  than  life,  411 
life  insurance  companies,  365 
safe   deposit   and  trust   companies,   511 

savings  and  loan  associations  doing  business  of  safe  deposit  and  trust  com- 
panies   in   certain   cities,   515,    511 
deposits  in  trust, — 

in  case  of  safe  deposit  and  trust  companies,  511 

savings  and  Joan  associations  doing  business  of  safe  deposit  and  trust  com- 
panies   in    certain    cities,    515,    511 
deposit    with    superintendent    of    insurance, — 

in  case  of  credit  guaranty  companies,  441,  366,  365 

when    foreign    companies,   444 
in    case  of  fidelity  guaranty  companies,   413,   411 

when   foreign   companies.   413.    411 
in  case  of  life  insurance  companies.   366,   365 

when   companies  foreign  to   U.  S.,  373,  366,   365 
when  foreign  companies  of  other  states,   371 
in  case  of  title  guaranty  companies,   515,  411 
must  be  assigned  to,   and  assignment  recorded, — 
in  case  of  credit  guaranty  companies,  441,  366 
life    insurance    companies,    366 
reserve   fund  —  in  case  of  accident  assessment  insurance   companies,   391,  368 
sinking  fund  —  in  case  of  cemetery  associations,  361 

MORTGAGEE. 

Action  by,  for  damages  for  use  and  occupancy  of  streets  and  alleys  by  railroad,   192 

MOTIONS. 

For  speedy  trial  in  quo  warranto,  635 

Party    or    attorney    must    subscribe.    585 

To  take  out  of  its'  order,  in  case  of  appropriation  of  unfinished  road  bed  of  railroad,  617 

MOTIVE   POWEB. 

Electricity  as,  railroads  may  use,   210 
In  case  of  street  railroads,  295,  296 

suburban   or    interurban   railroads,   307 

operating  over  street  railway  tracks,  54 
MULE 

Rate  of  toll  for.  over  bridges    346 

over  turnpikes  or  planK  roads,  331 

MUNICIPAL  CORPORATION. 

Actions    by   to    collect    fines,    penalties,    etc. — 

against  agents,  employees,  officers,  etc.,  of  railroad  and  telegraph  companies,  30 
railroad    companies,     30 

for  not  complying  with   provisions  as   to   highway   crossings,   229 
telegraph    companies,    30 
Appropriation  of  property  by.      (See  Appropriation  of  Property.) 
Board  of  legislation.      (See  "Council"  below.) 
Bonds  of.      (See  Bonds  —  Public.) 

Cemeteries   of,   outside  of   corporate  limits,   fare  to,   over   suburban   or   interurban   rail- 
ways,  54 
Cities    of    first   class  — 

railroad  crossings  in  —  automatic  safety  devices,  bells,  etc.,  23 
over   highway  to    public   cemetery,    193 
Cities  of  first  class,  first  grade  — 

extension  of  street  railway  routes   in,   305 
street   railwavs  must  run  cars  how  often  in.   55 

subways  for  electric  wires  in.      (See  Subways  for  Electric  Wires.) 
Cities  of  first  class,  third  grade. — 

appropriations,  use.  etc.,  of  street  railway  tracks  in,  302 
Cities  of  second  class, — 

railroad  crossings  at  highways  to  public  cemetery.  193 
Cities  of  second  class,  first  grade. — 

railroad  crossings  in.  automatic  safety  devices,  bells,  etc.,  23 
Cities  of  second  class,  second  grade  — 

railroad  crossings  in.  automatic  safety  devices,  bells,  etc.,  23 
Cities   of   second   class,   third   grade  — 

railroad  crossings  in  —  automatic  safety  devices,  bells,  etc.,  23 
gates   and    flagmen    at   dangerous,    23 


INDEX  817 

(Referei 

MUNICIPAL  CORPORATION  —Continued. 
Cities  of  second  class,  fourth  grade, — 

railroad  crossings  in,  automatic  safety  devices,  bells,  eta  . 

City  solicitor  of.     (See  City  Solicitor.) 
•  Clerk  of  —  duty  of.  as  to  publication  of  notice  of  application  foi    »treei   railway,  48 
Contracts,  agreements,  etc.,  with  gas  companies.     (See  Gas  Compa 
Council  —  contract  with   member  of,  as   to  railway   rights  is  void,  50 

hamlet   trustees  are  included    in   word    "council,"    2lu 
Excise  tax  not    required  of,  81 
Fees   for    filing   papers,    showing   incorporation,    annexation,    advancement,   or    reduction 

of.   10 
Franchise  grants  in  streets.     (See   Stbeets,    HIGHWAYS,   etc.,  and    under   various  com- 
panies, i 
Gas  works  —  contracts,  etc.,  with  companies   to  reserve   right  to  purchase,    12 

may   he   established   by,   when,   41 
Hamilton,  city  of.     (See  ''Cities  <>\  2d  class,  Sd  grade"  above.) 
Hamlet  —  "council"    includes    trustees    of,    210 

county    commissioners    cannot    granl    Btreet    railway    franchise    in.    298 
Lighting   of    bridges   and    railways    in  — 

ordinances    requiring,    may    he    passed,    44 
apply  to   whom,  44 

construction    of,    reasonableness,    etc.,    44 
expense  under,  assessment  of,  lien,  enforcement  of.  etc.,  45 
failure   to   comply   with    requirements   as   to,   45 
must  specify  what.   44 

notice  of   intention   to   pass   not   necessary,   44 
notice   of    requirements    of,    45 
to   agent    not    sufficient,    45 
Lighting  of   streets,    public   places,    etc. — 
contract  for;    term  of,  etc.,   41.  43 

in  case  of  electric  light  companies,  43 
gas  companies,  40.  41.  4:5.  350 
natural   gas  companies,   43 
regulation  of  price  of  electric  light  or  gas  for,  40,  41 
Mayor  of.      (See  Mayor.) 

Natural  gas,   oil,   or  water — power   to  transport,   store,   etc.,   572 
Parks,    public    grounds,    etc.,    outside    corporate    limits  — 
fare  to  over  suburban  or  interurban  railways,  54 

museum,   hall.    park,    and    rink    companies    may    use.    construe!    buildings,    etc.    on. 
when,    569 
Railroad  crossings   in.      (See  Railroad   CROSSINGS.) 
Real   estate,  purchase,  etc.,  of  to  abolish   railroad  crossings,  230 
Speed,  rate  of.  of  railroad  trains.      (See  Railroad  Trains.) 
Streets  and  alleys  of.      (See  Streets  and  Alleys.) 

power  to  lay  pipes,  etc.,  in,  41.   571 
Treasurer   of  —  burglary    insurance   companies   may    insure.   445 

MUNICIPAL    OWNERSHIP. 

Contract  with  gas  company  must  reserve  right  to  purchase   work-.  42 

municipality  erecting  plant   at   termination  of,   violates  no  right.   349 
Gas   works  may   be  established    when.    41,    349 

MURDER. 

By   obstructing  railroad,   displacing  appliances,  etc..  036 

MUSEUM   COMPANIES    (including  Academies  of  Art.   etc.). 
Acceptance   of  provisions    as   to.   483 

certificate   as  to. —  acknowledgment   of.  4S3 
filed  with  secretary  of  shite.  483 
Agents,  officers,  etc.,  of  —  directors  or  trustees  cannot  be.  483 

duties  of,  enforcement  of:   removal   of,  484 
Articles   of,   may   prescribe   what,   483 

where   buildings  are  on  public  grounds.   569 
Buildings,  etc..   of,   may  be  on  public  grounds  when,   569 
control  of.  and  grounds.   569 
t  respassing,  etc..  upon :  penalty,  569 
Capital    stock    of, — 

corporations  not  having  capital  stock   may  hold.   when.   395.   569 
where  buildings   are  on  public  grounds. — 

articles  may  provide  as  to  number  of  shares  held  by  a  stockholder,  569 
reversion  of.  to  company,   569 
transfer  of,  569 


818  INDEX. 

(References  are  to  pages.) 

MUSEUM  COMPANIES  —  Continued. 
Directors  or  trustees  of, — 

appointment  or  election  of  —  articles  may  prescribe  mode  of,  483 

by  corporations  not  having  a  capital  stock  and  holding  stock  in,  395 
where   buildings   are  on  public  grounds, — 

agreement   with   municipal   authorities   as  to,   569 
municipal  authorities  may  make  when,  569 
municipal   officers  may  be,   ex  officio,  569 
compensation  of,  none,   483 

where  buildings  are  on  public  grounds,  569 
duties    of  —  enforcement   of,   483,   484 
ineligible  to  salaried  office  or  agency  of,  483 

number   of  —  agreement   with    municipality,   as   to,    where   buildings    are   on   public 
grounds,  569 
in  case  of  art  societies,  113 
removal  of,  on  hearing,  etc.,  *484 
tenure   of    office  —  articles   may   prescribe,    483 
in  case  of  art  societies,  113 
Funds  of, — 

accounts,    reports,    etc.,    of    gifts,    receipts    and    disbursements,    4S3 
filing  with  clerk  of  common   pleas  court,  483 
enforcement   of,    4S3 
organic   rules   as   to,   483 
Objects   or  purposes  of  —  additions  to.  483 
certificate    of — -acknowledgment    of,    483 
filed  with  secretary  of  state,  483 
Officers   of.      (See   "Agents,"  above.) 
Organic  rules  for  —  articles  may  prescribe  what,  4S3 

permanency   of,   483 
Properly  of.  articles  may  prescribe  mode  of  administration  and  management  of,  4S3 
Stockholders  of  —  gain  or  profit  by.  where  buildings  on  public  grounds,  569 
liability  as,  of  corporation  not  having  a   capital  stock,  395,  569 
MUTUAL  BENEFIT   SOCIETIES.      (See   Insurance   Companies  —  Life :    Religious  Asso- 
ciations.) 
Provisions  of  §§  3630a  to  3630f,  3631,  when  not,  applicable  to  associations  of, — 
employees  of  express  companies,  393 
railroad   companies,   393 
telegraph  companies,  393 
ex-union    soldiers,   393 
mechanics,  393 
religious   societies,   393 
secret  societies,   393 
Reports  —  fees  for  filing  in  certain  cases,  393,  35 
not    required,    when,    401 
MUTUAL    COMPANIES.      (See    Co-operative    Companies:    Insurance    Companies,    etc : 

Mutual  Benefit  Societies.) 
MUTUAL    PROTECTIVE    ASSOCIATIONS.      (See    Insurance    Companies  —  Life ;    Insur- 
ance Coys  —  Live   Stock;    Insurance    Co.'s  —  Other    tii  ,.\ 
Life.  ) 

NAME. 

Corporate.      (See   Corporate  Name.) 
Officers.      (See  Officers.) 

NATURAL  GAS  COMPANIES. 

Agents,  employees,  officers,  etc.      ( See  "'  Officers  "  below. ) 

Books  and  papers  of, —  examination  and  inspection  of,  by  state  board  of  appraisers  an.'. 

assessors,    80 
Consolidation  of.      (See  Consolidation  of  Corporations.) 

laws   as  to  railroads  apply  to,  43 

with    electric   light   or   gas   companies,    43,   40 
Contracts,   etc.,  with   municipalities  —  for  heating  and  lighting  public  buildings,  stre  t 
etc.,  41,  43 

term  of,  41,  43 
Definition  of;   includes  what.  77 
Excise  tax  on:  amount,  levying  of,  collection  of.  etc.,  78,  SO 

exempted   from    provisions    of   "  Willis   Law,"    20 

failure  to  pay.  SO 

tangible  property  not  exempt   from    taxation.    SO 
In   cities  of  2nd  class  third  grade    (16.000  pop.   in   1880),— 


INDEX.  819 

(References  arc  to  i>... 

NATURAL  GAS  COMPANIES      Continued. 

assent  of  abutting  owners  accessary  to  use   r<  id     for   pipes,  353 
Liable  for  damages  resulting  from  transportation  oi  gas,  353 

negligence  not  an  element  <>f  liability,  353 
sections   3550   to   3501    apply    to,    353 
Lease  or  sale  of  plant  to  street   railway  companies  authorized,  5  I 
stockholders  —  meeting  of,  to  ratify  :   aotice;  proxies;  vote  al    •">! 

rights  of  dissenting;   compensation   for  stock;   arbitration,   ">l.  55 
nut  ice  of  dissent,  etc.,  55 
Managing  agent,  general  manager,  chief  officers  in  Btate.     (Sei    "Officers,"  below.) 

Meters  of.       (See  (Jas   METERS.) 

municipalities  may  regulate  charges  for,  40 
Officers  of, — 

examination  of.  by  state  board   of  appraisers  and  assessors,  79 

refusal   to   testify,  etc..   penalty,   SO 
reports  made,  filed,  etc..  by,  when,   77 
Price  of  gas  for  fuel  or    Light,  40 

agreement    as  to,   time   of.   etc.  40.   41 
municipalities  may   regulate,   40 
.Reports   of    to    state    auditor. — 

blanks   for,   auditor  prepares  and   furnishes,   78 
duties    ami    powers    of   officers    as    to,    77 
failure   or  refusal    to  make,   7!) 
must  show   what  as  to. — 

character   and  nature  of  company.    77 
gross  receipts,  78 
name   of  company.    77 
officers,   etc.,  name  and  address,   77 
organization,  laws  and  state  of,  77 
principal   office,    location  of,   77 
Streets,   alleys,   public  square,   etc..   use  and  occupancy  of.   for   pipes  additional    burd  n, 
350,   353 
NATURAL  GAS  TRANSPORTATION  COMPANIES.      (See   Pipe   Line   CoMPANrJ 
NATURAL  HISTORY.      (See  Library,  Lecture,  etc..  Companies:    Museum  Compantj  - 
NAVIGABLE  WATERS.      (See  Bridges:  Canals:   Railroads:   Ship  Canal  Compantj  9. 
Power    of   congress   over,    213 
what  are  navigable  waters.  213 
NAVIGATION   IMPROVEMENT  COM  PAN  V. 
Rate  of  toll,  directors  may  prescribe,  566 
NEGLIGENCE.      (See  Railroads,  i 

Contributory,  in  crossing  railroad  track,  226.  227 
Corporations  are  liable  for,   108 
Hospital   corporation   not  liable   for,  of  nurse,   165 
Liability  of  directors  for.    132.   133 

stranger  cannot   bring  action   for.    134 
Liability  of  stockholders  for  negligence  and  mismanagement  of  directors,    132 

follows   ownership    of   stock.  133 
Unlawful  speed  of  railroad   train,   evidence  of.  46 
NEGOTIABLE  1  X STRUM  ENTS. 

Agent   of  corporation,  power   to   sign,    131 

liability  of.  when  improperly   executed,   131 
Bonds  of  corporations.     (See   Bonds  —  Corporate. ) 
Cognovit  notes  —  preference  by.  what  is  not,   167 

president  may  make,  when.   126 
Corporations  —  cannot  become   accommodation    indorser,    108 
power  of.   to  purchase.    108.   100 
insurance    companies,    108 
Effect  of  taking  promissory  note  on  mechanics'   lien   upon   railroad-.   85 
Execution    of   promissory   notes   by   corporation,    108 
Interest  on.      (See   INTEREST.) 

Liability   of   corporations   for.   when    issued   by  officers,    126.    127 
Liability  of  stockholders  on.  for  indorsement  made  at   their  request,  154 
Notes  given  to  settle  corporate  liabilities,  not  a  credit  mi  stockholders'  liability,  when.   154 
Payment  of  stock   subscriptions   by  note  —  effect   of.    138 

statute  of  limitation  begins  to  run  when,  on  demand  notes.  138 
President  of  corporation   may  make,  when,   126.   127 

Railroad  and  street  railroad  companies  may  issue  notes  for  borrowed  money.  200 
What  may   be  invested   in  promissory  notes. — 

assets  of  insurance  companies  other  than   life.  411 


S20  INDEX. 

(References   are   to   pages.) 

NEGOTIABLE  INSTRUMENTS  —  Continued. 

deposit   with   superintendent   of   insurance,   when, — 
in  ease  of  fidelity  guaranty  companies,  413,  411 
title  guaranty  companies,  515,  411 

NEXT  OF  KIN. 

Application  of,  for  disinterment  of  dead  body,  39 

\\  ho  are,  39 
NON- RESIDENCE. 

Ground  for  service  by  publication,  when,  584 

Not   ground   for   attachment  —  m  case  of   foreign   corporations    complying   with    §    148c. 
11,  13,  16 
NON-RESIDENT   CORPORATIONS.      (See   Foreign   Corporation.) 

.NOTARY  PUBLIC. 

Bank  not  liable  for  default  of,  when,  8 

Certain,   cannot  act  as,   when,   8 

Stockholder  may  act  as,   111 
NOTES.     (See  Negotiable  Instruments;  Premium  Notes.) 

NOTICE. 

As  to  amendment  of  articles  of  incorporation,  102 

amendment,   etc.,   of  reports  of   railroad   and    telegraph   companies,   29 
applications  for  arbitrators  as  to  value  of  stock  upon  consolidation  of  R.  R.  Co's,  278 
for   inspectors   of  corporate   election,   122 
relative  to  impairment  of  assets  of  insurance  companies,  33 
changes   in  keeping   accounts   of   railroad    and  telegraph   companies,   29 
change   of  route   of   railroad,    181 

dangerous  conditions,  necessary  repairs,  etc.,  to  railroad,   21 
discontinuance   of  business  —  of  insurance   companies,  37 

of  life  insurance  companies,  36 
enforcement  of   liabilities  of  directors,   officers,   stockholders,   etc., — 
to  creditors,   159 
to  non-resident  stockholders,  159 
establishment  or   change   of    principal   office    of   railroad   companies,   211 

in  case  of  consolidated  companies,  277 
franchise  grants  in  street,  etc..  to   street  railways,  48,   51 
mechanics'  lien  on  railroads.  84 
meetings  of  stockholders,  members,  etc., — 
adjourned,  not  necessary,   when.    123 

general   or   stated,   not  required,   when,   123 
of  members   of  corporation  not  for  profit,   102 
to   adopt   or   amend  regulations,    136 

amend  articles   of  incorporation,    102 
classify   directors   of  railroad   companies,    202 
dissolve   railroad   companies,   242 
elect  directors  or  trustees,    123 

regulations   may    provide   as   to   mode   and   manner,    137 
extend  line  of  railroad  or  change  termini,  208 
increase    capital    stock,    etc.,    165 

in   case   of   railroad   company,   208 
issue  bonds  of  railroad  companies.  196 

in   case  of  certain  narrow  gauge  roads,   199 
organize  corporation    (first   meeting).    118 

in    case   of   savings   and   loan   associations,   504 
provisions    as   to    are   directory,    119 
ratify  lease,  purchase,  sale,  etc..  of  property  and  franchises, — 
in  case  of  electric  light  and  power  companies,  54 
street  railways.   52.   54 
ordinance   requiring  lighting  of  bridges,    and  railways,   44 
jmvment  of  mechanics'  liens  on  railroad,   85 

petition  for  interlocking  fixtures,  etc.,  at  railroad  and  electric  railroad  crossings,  24 
petition   for  sale,   incumbrance,  etc.. — 

of  abandoned,  etc.,  church  property,  489 

of  cemetery  grounds  —  of  cemetery  associations.   361 

of  educational  and  religious  corporations,  4S8 
of  real  estate  of  benevolent,  charitable  or  religious  societies,  500 
petition  for  transfer  of  property  upon  consolidation  —  of  benevolent  and  charitable 
societies,    498 
of  religious  societies,   denominations,  etc.,  492 
receipt   of    freight  at   destination,    86 
re-issue  of  lost  or  destroyed  stock  certificates,  146 


INDEX. 

( References  are  to  pai 

NOTICE  —  Continued. 

revocation  of  authority  of  insurance  companies  to  do  busine 
safety  devices    al   highwaj    railroad   crossings,  22 

in  cities  of  2nd  class  3rd  grade,  23 
sale  of  —  stock   for   unpaid    installments;    137 

unclaimed    freight,  etc.,  87 
stockholders'  dissent  to   lease,    purchase,   sale,   etc.,  of    property  or   franchise, — 

in   case  of  electric   lighl    and   power   c panies,   54 

railroad   companies,  206 
street  railroad  companies,  52,  -"it 
By  mail,  when. — 

in  case  of  amendment,  etc.,  of  constitution  or  by-laws  of  assessment   life  ass'n,  381 
increase  of  capital  stock  of  railroad  companies,  208 

meetings    for   consolidation    of   hydraulic  c panies,   355 

petition  to  consolidate  or  reinsure  risks  of  accident,  health,  or  life   insurance 
companies,  :;i>7 
By  publication.     (See  Publication.) 

Directors  are  charged  with,  of  proceedings  of  directors,   130 
Of  appeal.      (See  ATPEAL.) 
To    corporation  —  notice    to    directors    i~.    when,    130,    131 

notice  to   special  agents  is,   when,    131 
Waiver  of. — 

as  to  amendment  of  articles   of  incorporation,    102 

meeting  of  members  of   corporation   not   for   profit,    102 
meetings  of   stockholders   to  amend    articles,    102 
to  increase  capital  stock,  etc.,  165 
NUISANCE. 

Corpse    becoming,   penalty   for,   39 

Corporations  may  be  indicted  for  maintaining  what,  63; 

order  against    for  abatement    and   removal  of,  631 
Public  and  "private —  appropriation  by  streel    railways  to  be  ascertained   without    refei 
ence   to   distinction    between.    304 

NUL  TIEL   CORPORATION. 

Defense  to  enforcement  of  stock  subscription,   when,    14(1 

NURSERIES,  ORCHARDS,  ETC. 

Carrying  away  fruits,  etc.,  injuring  fences,  trees,   etc.,   trespassing    upon,   etc.,   402,  463 
Cemetery  associations  cannot   appropriate  land  of.  when,  357 
in  cities  of  first  class   first  grade    357 

second    class    third   and    fourth    grades,    3.37 
NURSES. 

Corporations  for  instruction,  etc..  of,  93 

Hospital   corporation  not  liable  for   negligence  of,    1G5 

OATH.  OATHS. 

Form  of  —  -  of  directors,  667 

of  jury  in  appropriations  by  street  railways,   304 
Who    may    administer, — 

clerk   of  commissioner  of  railroads   and   telegraphs,   25 

commissioner    of   railroads   and    telegraphs,    20 

county   auditor,   in  connection    with   board   of   appraisers   of   railroads,   66 

examiners    appointed    by  —  inspector    of    building    and    loan    associations,    561 
by  superintendent  of    insurance,   32 

justice  of   the   peace  to   cemetery  police,   359 

mayor,  to   cemetery   police,   350 

members  of  state  board  of  appraisers  and  assessors,  70.  73.  SO 

superintendent  of   insurance,    32 

OATH  OF  OFFICE. 

Indorsed  on  bond  and  filed  with  secretary  of  state.— 

in   ease  of  commissioner   of   railroads    and    telegraphs,    21 
superintendent    of    insurance.    31 
Who  must  take, — 

commissioner  of  railroads  and  telegraphs,   21 
directors  of   corporation-.    125 
policemen  for   cemeteries.   350 
railroad  police,   293 
superintendent  of  insurance.  31 

deputies  of  same.   31 
trustees  of  corporations.  125 


322  INDEX. 

(References   are   to   pages.) 

ODD  FELLOWS. 

Provisions  as  to  fraternal  beneficiary   associations   do  not  apply  to,  401 

OFFICE    (A   PLACE  OP  BUILDING,   ETC.) 

Company  to  construct  and  maintain  buildings  for.      (See  Building  Company.) 
Location  of  —  of  commissioner  of  railroads,  25 
of  superintendent  of  insurance,   31 
reports  to  secretary  of  state  must  give, — 
in  case  of  corporations  for  profit,  17 
corporations  not  for  profit,   19 
foreign   corporations,    10,   18 
reports  to  state  auditor  must  give, — 

in  case  of  electric  light,  gas,  messenger  or  signal,  natural  gas,   pipe  line,  rail- 
road,   street,    suburban   or    interurban    railroads,    union   depot, 
and  water  works  companies,   77 
equipment    (P.   P.)    and   freight   line  companies,  71 
express,  telegraph  and  telephone  companies,  68,  77 
sleeping  car  companies.  73 
Railroad  companies  may  construct,   maintain,  etc.,   176 

OFFICE    (A   POSITION    OR   EMPLOYMENT).      (See   under   various    titles   and   companies 

herein.) 
Damages  against  one  usurping,  etc.,   632 
Eligibility  "to  —  of  commissioner  of  railroads  and  telegraphs,   21 

of  superintendent  of  insurance,   31 
Contract  to  secure,  in  corporation  void,  when,  104,  125 
Term  of  —  by-laws   regulating,    123,   135 

in  case  of  commissioner  of  railroads  and  telegraphs,  21 

directors   or   trustees  of   corporation.      (See   Directors:    Trustees.) 
superintendent  of  insurance,   31 
regulations  of  corporations  may  provide  as  to,  137 

OFFICERS.      (See  also  under  various   titles  and   companies  herein.) 
Accounting,  duties  and  powers  of. — 

as  to  listing  property  for  taxation,  55,  56 
Admissions  by,  do  not  bind  company,  when,   131 
Appointment    or    election    of, — 

regulations  may  provide  as  to  manner  of.   137 
form   for,   668,   671 
Bond  of  —  form  for,  667 

Change  of,  of  certain  corporations  not  for  profit,   certificate  as  to,  97 
Compensation    of, —  allowed    when,    1:26 
form  of  by-laws  as  to,  672 
regulations   may  provide  as  to,    137 
Duties   of,  regulations  may  provide  as  to,   137 

form  for  same,  668,  669 
Liability  of.      (See  Directors.) 
Names,  residence,  etc.,  of, — 

articles  of  certain  societies  not  for  profit  to  give,  97 

certificate  as  to,  to  be  filed  upon  change  of,  by  certain,  societies  not  for  profit,  97 
report  to  secretary  of  state  must  give   of  foreign  corporations,    10 
in   case   of   corporations    for    profit,    17 
corporations  not  for  profit,    19 
foreign  corporations,  10,  18 
to  state  auditor  to  give, — 

in  case  of  electric  light,  gas,  messenger  or  signal,  natural  gas,  pipe  lines, 
railroad,    street,    suburban    or    interurban    railroad,    union    de- 
pot   and    water    works    companies,    77 
equipment    (P.  R. )    and  freight  line  companies.  71 
express,    telegraph   and    telephone   companies,    68,   77 
sleeping  car  companies,  74 
statement  as  to.  required  of  railroad  and  telegraph  companies,  29 
Pleadings   verified  by,   when,  585 
Proof  as  to  who  are.  what  is.  125 
Regulations  relating  to,  forms  for,  668 
Removal  of;  for  cause,  127 
Peports,  etc.,  by.      (See.  Reports.) 
Term  of  office  of.      (See  Office.) 
Service  of  process  upon.      (See  Service  of  Process.) 
OHIO  HUMANE  SOCIETY.    (See  Humane  Societies.) 
OHIO  STATE  BOARD  OF  AGRICULTURE. 
Attorney-general,  legal  adviser  of,  449 


[NDEX.  B23 

(References   are   to   pages.) 

OHIO  STATE  BOARD  OF  AGRICULTURE      Continued. 

Expenses  of, — hoard  may  audil    and   pay    what,   449 
paid  out  of  state  agricultural  fund,  when,  449 
Farmers'   institute   under    auspices   of.      (8ee    FARMERS'    [NSTTTUTE    SOCIETIES.) 

duties  and  powers  of  as  to,  401,  402 
Incorporation  of,  448 
Meetings  of, —  county   agricultural   societies   to   report   at,    lis 

held  when  and   where,  448 

proceedings  at,  448,  449 
Members   of;    election   and   term,   448,   449 

ex-officio, —  delegates  from   farmers'  institutes  are,   when,    lis 

president   or    delegates    from    county    agricultural    30cietiea    are,   448 

number  of;  quorum,  448 
Officers  of,  board  elects,  44'.t 
Real  estate  of, —  board  may  hold  what,  449 

exempt    from    taxation,   when,   4  l!l 

reverts  to  state  when  not  used  for  state  fairs,  449 

sale  of,   act  of  legislature   necessary   for,   449 
Reports  of,  to  general  assembly,  annually,  449 

must  show  what,  449 
Reports  to,  by  district  and  county  agricultural  societies.  44S.  450 

to  be  in  accordance  with  rules  of,  450 
State  fair  —  board  to  hold,  449 

constables   to  keep  peace  at,  400 
Secretary  of  —  duties  of,  as  to  farmers'  institutes,  461,  4()l! 
Stationery,  books,  etc.,  for,  secretary  of  state  to  furnish.  449 
OIL  COMPANIES.     (See  Manufacturing  and  Mixing  Companies:  Refining  Compact 
OIL    TRANSPORTATION    COMPANIES.      (See    Pipe    Link    Companies.) 

OIL  WELLS. 

Appropriation  of  lands  upon  which  situated. — 

cemetery   associations  cannot  make,   when,  357 

in  cities  of  1st  class,  1st  grade,  2nd  class,  3rd  and  4th  grade-.  357 

OLEOMARGARINE. 

Coloring  of,  suits  for, — 

justice  has  jurisdiction,  467 

prosecuting  attorney  may  file   exception  to  rulings  of  common  pleas   reversing,  407 

OMISSIONS.      (See  Errors  and   Omissions.) 
OMNIBUS. 

Rate  of  toll,  331 
ORCHARDS.     (See  Nurseries,  Orchards,  etc.) 
ORDER  OF  BUSINESS. 

Form  of  regulations  establishing. — 

for  meetings. —  of  members  of  corporation   not    for   profit,   072 
of  stockholders,  609 

ORDINANCES. 

As  to  specific  matters.      (See  under  respective  titles.) 
Reading,  50 
OUSTER,      (Quo  Warranto.) 

OVER-TIME. 

Compensation  for,  railroads  to  make  to  certain  employees,  248 

ORGANIZATION.     (See  Corporations.) 

PAPERS.      (See  Books  and  Papers.) 

PARENTS. 

Abandonment,  etc..  of.  by  children. — 

attorney  to   prosecute  for, —  fees  of  paid  from  county  treasury,  400 
humane  society   or   agent   ma\    employ,   4(10 
PARKS. 

Injuring    fences,    buildings,    trees,    etc.;    carrying    away    fruits,    etc.,    trespassing   upon, 

etc.,  402,  403 
Municipal,    fare  to,   over   suburban   or   interurban   railways.    5  \ 

PARKS  —  COUNTY. 

In  counties  containing  city  2nd  class.   1st  grade. —  Franklin  county. — 
abandoned  fair  grounds  held  as.  454 

title  to  vests  in  county,  454 
care,  protection,  etc.,   of, —  park  commissioners  to  make  rules  for.  455 


824  INDEX. 

(References  are  to  pages.) 

PARKS  —  COUNTY  —  Continued. 

control  and  supervision  of,  454 

employees  of. —  appointment,   compensation,  removal,  455 

enlargement  of — bonds  for;  requirements  as  to;   tax  levy  to  pay,  etc.,  455 

care,   improvement,  etc..   of  at   expense  of  city,   454 

council  of  city  may  provide  for,  when,  454 

purchase   of   certain   property   for,   454 

title  to  vests  in  city;  454 
expenditures;   report  of  commissioners  to   show,  455,  456 
park  commission  for,   454 

appointment,  bond,   oath,   term,   etc..  454,  455 

funds  of  dissolved,  etc.,  county  agricultural  society;   to  be  turned  over  to,  454 

mayor,  cx-officio  member  of,  454 

meetings   of:    held  when,   455 

number  of.    quorum,   454,   455 

president  of:   election  of,  455 

record  of  proceedings:    effect  as  evidence,  etc.,  455 

reports  of.  to  county  commissioners  and  city  council,  455 

resolutions  or  orders  of:  yeas  and  nays  on:  record  of:  vote  necessary,  455 

secretary  of:   election  of,  455 

vacancies,   failure   to   qualify    causes,   455 
superintendent:     appointment,    compensation,    removal,    455 

PARK   AND  POND  COMPANIES. 

Buildings,  grounds,  etc.,  of,  public   grounds  used  for,  when,   569 
Corporations  not  having  capital  stock. — 
may  elect  directors,  etc.,  when,  395 
may  hold   stock  in,  when,  395 

liability    of,    as    stockholders,    395 
Where  public  grounds  used  for  buildings,   etc.,  of,  569 
articles   may   provide. — 

as  to  number  of  shares  of  capital   stock  held  by  stockholders,  569 
reversion   of   shares   to   company.    569 
transfer  of  shares,   569 
buildings,   grounds,   etc..   of  —  control   of,    569 

trespassing  upon,  etc.;  penalty,  569 
directors  or  trustees  of, — 

agreement   with   municipality  as  to  appointment   and  number  of,  569 
compensation  of  —  none,   569 

municipal    authorities   may    appoint    certain,    569 
may  be,  ex-officio.  569 
stockholders  or  members  of,   gain   or  profit  by,   569 

PARTIES. 

In  action, — 

by   creditors  to  reach  unpaid  stock   subscription.   140 

stockholders   to  compel    accounting,   133 
to   compel    re-issuing  lost   or   destroyed   stock   certificate,    146 

transfer  of  stock,    146 
to    enforce    lien   on    railroad.    85 

stockholders'  liability,  160,  161 
to  dispose  of  real  estate  of  real  estate  corporation,  93 

PARTNERSHIP. 

Corporations  cannot  enter  into,    110 

Debts  of,  liability  for,  of  corporation  taking  property  of,  106 

Persons  using  corporation  to  defraud  liable  how,   107 

PASSENGERS.     (See   Railroads:   Street  Railway   Company.) 

Foot,  rate  of  toll  for,  over  bridges,  345 
PASSENGER  TRAINS.     (See  Railroad  Trains.) 
PASSES.      (See   Railroads.) 
PATENTED  ARTICLES. 

Use  of,  subject  to  state  control,  when.  323 

PAYMENT,      (See  Involuntary  Payment.) 
Of   fees  under   protest,    15 

PENITENTIARY. 

Directors  or  wardens  of.  duty  as  to  bodies  of  deceased  inmates,  481,  482 

Officers  and  guards  of.  may  ride  on  freight  trains,  when,  265 
PERJURY. 

False  statement,  reports,  etc.,  in  connection  with  fraternal  beneficiary  ass'n  is,  when,  400 


INDEX.  825 

'  R(  i.  reno  g  are  to  pages.) 

PERISHABLE  PROPERTY.     (See  Property.) 
PERSON,  PERSONS. 

Includes  corporal  ions, — 

as   used    in    laws  as   to  cmeltj    to  animal-,    KiS 
in   section  2 185,    13,    1  13 
Injuries  to.      -  Sec    Ivn  kii.s.) 
PERSONAL  PROPERTY.     (See  Corporate   Property.) 
Corporations  may  mortgage,  when,    L50 
Includes  what,  in  case  of  taxation  oi  railroads,  60 
Shares  of  stock  arc,   \4~ 
Taxation   of.      (See   TAXATION.) 

PETROLEUM   COMPANIES.     (Sec    Manufacturing    \m>    Mining    Companies;    Refining 

COMPAND  S.  ) 

PETROLEUM   TRANSPORTATION   COMPANIES.     (See   Pipe   Line  Companies.) 
PHILOSOPHIC  SOCIETIES.     (See  Library,  Lecti  re,  etc.,  Companies.) 
PHOTO-METRIC  TEST.      (See   Gas.) 

PHYSICIAN. 

May  ride  on  freight  trains,   when,   265 

PICNIC  GROUNDS.     (Sec  Pjueasure  Grounds.) 
PICK  POCKETS. 

Agents,   etc.,   of  union  depot  companies   may   arrest,    when.   314 

PIONEERS. 

Grounds  for  meetings  of.      (See  Pleasure  Grounds.) 
PIPE    LINE    COMPANIES.     (See   Common    Carrier:    Common    Carrier    Compani 
Actions  for  conversion   of  product    entrusted   to:    counter   claim,   57  1 
Agents,   employees,   officers,   etc.,   of.      (See  "Officers"   below.) 
Appropriation  of  property  by.  571 

does  not  apply   to  water  works  companies,  571 
Are  common  carriers,  571 
Books   and   papers   of  —  examination,   inspection,   etc.,   of,   by    state    board    oi   appraisers 

and  assessors.    80 
Definition  of:  includes  what,  77,  571 

Excise  tax  on:   amount,  levying  of,  collection   of,  etc.,  78,  80 
exempted  from  provisions  of  "Willis  Law,"  20 
failure  to  pay,  80 

tangible  property   not  exempt   from   taxation,    so 
Managing  agent,  chief  officer  in  state,  etc.      (See  "Officers"   below.) 
Officers,  etc.,  of, — 

examination  of,  by  state  board    of   appraisers   and    assessors,    79 

refusal    to   testify:    penalty.    80 
reports  made,  filed,  etc.,  by,  when.   7. 
Powers  of  (See  Common  Carrier  Companies),  571,  572 
to   acquire   and  hold  property.   57  i 
to  lay  and  maintain  pipe   lines,  etc.;  571 

regulations   as   to    construction,    etc.,    571 
restrictions  as  to,   571 
to  transport,   store,  etc.,  natural  gas,  oil,   or  water,  572 
Real  estate,   power  to  acquire,   hold.   etc..    571.   572 
Reports  to   state  auditor, — 

blanks   for,    auditor    prepares   and    furnishes.    78 
duties  and  powers  of  officers   as  to,   77 
failure  or  refusal  to  make.   70 
requirements,  etc.,   as  to:    to  show   what.    77,    78 
character  and  nature  of  company.   77 
gross  receipts,   7S 
name  of  company.  77 
officers  —  name  and  address,  77 
organization  of,  laws   and   state  of,   77 
principal   office,    location   of     77 
Roads,   streets,    etc.,   right  to   use   and   occupy.    571 
granted  by  whom:   regulations,  etc..  a-  to,  571 

PLACE  OF   BUSINESS.      (See  also  under  various   companies.) 
Change  of, — 

certificate  of  to  be  filed  by  certain  societies  not  for  profit,  9/ 
made  when  and  how.  !is.   10-2 
section   3252   does   not   authorize,    137 


826  INDEX. 

(References   are   to   pages.) 

PLACE  OF  BUSINESS  —  Continued. 
Designation   of  principal, — 
articles  must  make,   96 
effect  of,   98 

exception  as  to  certain  societies  not  for  profit,  97 
failure  to  give,  effect  of,  96 
form  for  stating,  645,  657 
statement  of  foreign  corporation  must  give,  in  this  state,   12 
In  absence  of  —  service  may  be  by  publication,  584 
Reports  to  secretary  of  state  must  give, — 
in   case   of   corporations   for   profit,    17 
foreign  corporations,  18 
Summons  may  be  left  at,   when,   582 

in  actions  before  justice  of  peace,  623 
in   case  of  indictment  of  corporation,  639     • 
PLAINTIFFS.     (See  Parties.) 

PLANK  ROADS.     (See  Mechanics'  Liens:   Turnpike  and  Plank  Road  Companies.) 
PLATE    GLASS   INSURANCE.      (See   Insurance    Co.'s  —  Other   than     Life:     Insurance 

Co.'s  —  Plate  Glass.) 
PLEADINGS. 

Allegations  necessary, — 

in  action  by  bondholder  for  refusal  to  convert  bonds  into  stock,   152 
by  stockholder  to  compel  inspection  of  books,  140 

to  compel  re-issuing  of  lost  or  destroyed  stock  certificate,  146 
for  damages  for  animals  killed  by  railroads,  217,  218 
to    enforce    stock    subscription, — 
brought  by  company,   138 
by  creditors,   140 
to  enforce  stockholders  liability,  140,  161,   162 
Corporate  capacity,  112 

ivant  of,   112 
Corporate  organization,  want  of,  99 

Cross-petition,  creditor  or  stockholder  may  file,  when,  134 
allegations,    etc.,    of,    134 

in  action  for  dissolution,  to  reach  stockholders'  liability.  598 
Foreign  corporations, —  capacity  to  maintain  action  need  not  be  set  out,  15 

compliance   with  local   laws  need  not  be  alleged,   15 
Misnomer  of  corporation,  112 
Separately  stating  and  numbering,   134 
Subscribed    by    whom,    585 
by   attorney,    when,   585 
by  party,.  585 
Verification  of,  585 

by   agent  or  attorney,  when,  585 
in  case  of   corporations,   585 

petition  for  dissolution  of  corporation,  594 
state,   state  officers,  etc.,   585 
PLEASURE  GROUNDS. 

Carrying  away  fruits,  etc.,   injuring  buildings,  trees,  etc.,  trespassing  upon,  462,   463 

PLEDGE.      (See   Loans:    Mortgages.) 

PLEDGEE,   PLEDGOR.      (See  Capital   Stock:    Stockholders.) 

POLICE  JLDGE. 

Jurisdiction  of  in  action  as  to  cruelty  to  animals,  children,  etc..  466 
in  actions   as    to   employment   of   children,    466 

POLICE  POWERS   AND   REGULATIONS. 

Railroad   companies  are  subject  to,   186,  225 
POLICIES.      (See  under  various  Insurance  Companies.) 
POLYTECRNICAL  INSTITUTE.      (See  Mechanic's  Institute.) 
POND  COMPANIES.      (See  Park  and  Pond  Companies.) 
POST  OFFICE  ADDRESS.      (See  Address.) 
POWERS,  CORPORATE.      (See  Corporate  Powers.) 
PREFERRED  STOCK.      (See  Capital  Stock.) 
PREMIUM  NOTES.     (See  Insurance  Companies  —  Fire:   Insurance  Companies  —  Life.) 

PRESIDENT. 

Of  board  of  appraisers  of  railroads.      (See  Appraisers  of  Railroads.) 
Of  corporations.      (See  Officers  and  under  respective  companies.) 


rNDEX.  8^7 

(References   are   to   i>i 

PRESIDENT  — Continued 

duties  and   powers  of, — 

as  to  amendment  of  articles,   102 
borrowing  money,  25 
bringing  and  defending  suits,   li't; 

executing  deeds.   'tgages,  notes,  etc.,   126,   1-7 

issuing  stock.   127,    1  12,   I  I'd 
listing  property  for  taxation.  .").">,  .~>ii 
name  of  company  similar  to  his  own  company,  L01 
sale  of  bonds,   151 
transfer  of  stock,    l-!7 
regulations  ib  to,  forms   for,  068,  671 
election  of,  by  directors  or  trustees,   l-"> 
form  for  regulations  as  to,  668,  671 
none  by  stockholder-.    Ii'ii 
name  and  address.     (Sec  Address:   Officers.) 
presumption  of  authority  of  to  execute   notes,  etc.,    L26 
pro  tempore,  power  of;   to  execute  mortgages,  etc.,  211 
summons,  etc.,  may  be  served  on,  when  and  where.  582 
in  actions  before  justice  of   peace.  623 

against   railroad  companies,  623 
in  attachment    proceedings  before  justice  of   peace.  025 
in  case  of  indictment  of  corporation,  i).'!'.i 
PRESUMPTIONS 

As    to    authority    of    president    to    execute    notes.    126 

good  faith  of  council    in  regulating  price  of  gas,    10 
regularity  of  proceedings  to  enforce  stockholders1  liability,   163 
validity  of  corporate  acts.   106 

of    deeds    of    conveyance    of    corporations.    111.     126 
That   director   is   a    stockholder,    128 
PRICE   FOR  SERVICE.      (See  under  respective  companies.) 

General  assembly  may  alter  and  regulate,  of  common  carriers,  2 
PRINCIPAL  OFFICE.      (See  Office.) 

PRINTING.     (See  Publication.) 

Of   annual   report   of   superintendent   of   insurance.    34 

PRINTING  AND  PI  BLISHING   HOUSE.      (See  Religious  Associations.) 
PRIORITY. 

Of  claims  under  railroad  construction  contract.  83 
liens  -on  railroads.      (See  Mechanic's  Lien.) 
mortgages  over  liens  on  railroads.  S4.  85 
PRIVATE  RAILROADS.     (See  Freight  Wats.) 
PRIVILEGE  TAX.     (  See  Excise,  Franchise  oh  Privilege  Tax.) 
PROCESS.      (See  Service  of  Process.) 

PRORATE  COURT,  PRORATE  JUDGE.     (See  Court— Probate. ) 
PROFESSIONAL  BUSINESS. 

Corporation  not  authorized  to  do.   03 
PROFILES.      (See   Maps.) 

PROMISSORY    NOTES.       (See    NEGOTIABLE    INSTRUMENTS:    PREMIUM     NOTES.) 
PROMOTERS.      (See  Corporations:    INCORPORATORS.) 

Agreement    of,    to    secure   office   in    company,    K>4 

Duties,  liabilities,  etc.,  of.  04 

Liability    of  company    for   contracts   of.    104 

Liability  of,  for  fraudulent  organization,   107 
PROOF.      (See   Evidence.) 
PROPERTY.      (See  Corporate  Property.) 

Corporate  franchise  is  not,   56 

License  or  privilege  of  foreign  corporation  to  do  business  is  not,  15 

Perishable,   live  stock    is,   88 

sale   of.   by  common   carriers,  etc..   S8 

Taxation   of.    '(See  Taxation.) 
PROPERTY  HOLDERS.   (See  Abutting  Property  Owners.) 
PROSECUTI NO  ATTORNEY. 

Actions,  prosecution,   etc..  brought  by.   when. — 

against  corporations,  to  collect  excise,  franchise,  etc..  tax. — 

in    case    of    electric    light,    express,    r^s.    messenger    or    signal,    natural    gas. 
pipe   line,   railroad,   street,   suburban  or   interurban   railroads, 


828  INDEX. 

(References   are   to   pages.) 

PROSECUTING  ATTORNEY  —  Continued. 

telegraph   and   telephone,   union   depot  and   water  works   com- 
panies, 81 
equipment   (R.  R. )   and  freight  line  companies,  74 
sleeping   car    companies,    7ti 
against  persons,  etc., — 

for  circulating,   re-issuing,   etc.,   currency,  bills,  etc..  of  expired,  insolvent,   etc., 

banks,    534 
for  offenses  against  law  —  as  to  bills,  etc.,  as  money,   527 

as  to  unknown  depositors,  545 
for  violating    provisions   of   §    148d,   13 
against   railroad  companies. — 

for   fines,  penalties,   etc.,   civil  action  for,   30 
for  violating  provisions, — ■ 

as  to  automatic  couplers,  air  brakes,  etc.,  257 

construction,    etc.,    of    crossings,    approaches,    etc.,    at    highway    cross- 
ings, 229 
discrimination  in  freight  rate  against  points  in  state,  261 
employment  of  engineers,  etc..  intoxicated,  addicted  to  drink,  etc.,   249 
heating  baggage,  express,  mail   and  passenger  cars.  239 
height  of  steps  of  passenger  car  above  platform,  239 
section  247c,  23 

telegraph   or  telephone  lines,   240 
shipping  live  stock,   576 
waiting  rooms,  215 
against  real  estate  companies  —  to  sell  real  estate  held  contrary  to  law,  94 
against   street   railway   companies, — 

for  failing  to  run  cars  at  required  intervals  in  cities  of  1st  class,  1st  grade,  55 
for   violating   provisions   as   to    street  car    vestibules,    306 
against   telegraph    companies. —  for    fines,    penalties,   etc..    civil    action    for,    30 
Exceptions  by,  to  reversal  of  justice  of  peace  in  oleomargarine   cases,  467 
Fees  of  —  for  bringing  actions,  etc.. — 

for   violating   provisions   as   to    construction   of   railroad   crossings,   etc.,   over   high- 
ways.  229 
employment  of  locomotive  engineer  addicted  to  drink,  etc.,  249 
heating  baggage,  express,  mail,  passenger  cars,  239 
railroads,  30 

waiting  rooms,  at  stations,  215 
to   collect  excise   tax,    74,   76,   81 

to  sell   property  of  real  estate  corporation  at  expiration  of  charter,   94 
Verification  of  pleadings,  585 
PROSECUTIONS. 

Against  railroad  or  telegraph   company,  its  agents,  officers,  employees,  etc.,— 
for   fines  without  imprisonment  to  be  by  civil  action,   30 
for   penalties  involving  imprisonment   to  be  by  indictment,   30 
PROTEST. 

By  a   director  of  railroad  companv  against  acts  of  board,  211 
effect  of,   211 

publietion  and  record  of,  211 
Payment  of  fees  under,   15 
PROXIMATE  CAUSE. 

Failure  to  give  signal  at  railroad  crossing  must  be,  in  action  for  damages,  227 
PROXY. 

At   election  of  directors,   120 
Directors   cannot   vote   by.    125 
Stockholders  — form  of,  665,  666 
form  for  regulations  as  to,  668 
PUBLICATION. 

Of  advertisement  for  bids  for  grant, — 
for  street  railways.   48,  51 

for  subways  for  electric  wires  in  cities  of  1st  class  1st  grade,  326 
Of  certificate  of  compliance  with  laws  by  insurance  companies,  36 
examination  of  insurance  companies,  32 

notice  of  —  action  for  re-issuing  lost  or  destroyed  stock  certificate,  146 
amendment  of  articles  of  incorporation.   102 

application    for   appointment    of    arbitrators    to    determine   value   of   stock    upon 
consolidation    of    rnilrond    companies.    278 
for  apnointment  of  inspectors  of  corporate  elections.   122 
for  right  to  use  bridge,  road,  etc.,  by  turnpike,  or  plank  road  company.  329 


[NDEX. 

( Re  i  i 

PUBLICATION  —  Continued. 

of  mutual  protective  association  to  become  mutual  fire  company,   I 
to  relinquish  business  of  life  insurance  on  stipulated  premium  plan,   106 
appointment  of  receiver  upon  dissolution  of  corporation,  595 
change  of  location  of  route,  etc.,      of  railroad  company,   L81 
of  ship  canal  companies,  309,   18 1 

discontinuance  of  business  of  insurance  c panies,  .;7 

of  life  insurance  companies,  ." ; « ; 
election  —  as  to  bonds  to  paj  debts  of  count]   agricultural  society 
as  to  levy  of  additional  tax  for  count}   agricultural    ociety,  453 
of  special  election  of  directors  of  free  banking  companies,  504 
establishment  or  change  of  principal  office  of  railroad  companies,  Jll 
in  case  of  consolidated  railroad  companies,  277 
ship  canal  companies,  .'(12 
meetings  of  corporation, — 

regular,  of  plank  road  and  turnpike  companies,  340 
to  adopt  or  amend  regulations,   130 

amend  articles  of   incorporation,    102 

in  ease  of  schools,  colleges,  etc.    (stock  companies),    180 
assess  stockholders  of  plank   road  and  turnpike  companies,  ;;ll 

of  schools,  colleges,  etc.,  to  pay  debts,   179 
classify  directors  of  railroad   companies,   202 
consolidate  companies  —  in  case  of  hydraulic  companies,  355 

in   ca^e  of  railroad   companies,  271 
dissolve  company  —  or  surrender  charter,  599 

in  case  of  railroad  companies,  242 
elect  directors  or  trustees,   12:? 

in  case  of  consolidation  of  railroad  companies,  275 
extend  lines  or  change   termini   of   railroad,   208 
increase  capital  stock  or  number  of  shares,   165 
in  case  of  railroad   companies,   208 
ship  canal  companies,  3 12.  208 
issue  bonds  and  secure  by   mortgage   in  case  of  certain  narrow   gauge 

railroads,    100 
organize  savings   and   loan   association,    504 

re-organize  railroad  company  sold  under  mortgage  or  deed  of  trust,  281 
receive     subscriptions     to     membership     in     educational     endowment 

corporation.  47fi.  477 
sell  road  bed.  right   of  way.  etc..  of  railroad.  287 
sell  turnpike  or  plank  road  to  county  commissioners,  337 
opening  book  of  subscription  to  capital    stock.    115 
in  case  of  credit  guaranty  companies,  441.  3G3 

life  insurance  companies.  365 
in   case  of  increase   of  capital   of  company  of  landholder-   assessed    for   im- 
proved road,  342 
organization  of  —  credit  guaranty  companies,  441.  365 
life  insurance  companies    (mutual   or  stock),  365 
payment   of  mechanic's  lien  on  railroad.   85 
petition, — 

to    consolidate   or    re-insure    risks    of    accident,    health,    and    life    insurance 

companies,  3<i7 
to  correct  errors,  etc..  in  records  or  proceedings,  etc.,  of  corporation,  G03 
to  enforce  liability  of  directors,  trustees,  officers  or   stockholders,    159 
to  sell,  incumber,  etc.,  real  estate, — 

in  case  of  abandoned  church  property,  etc.,  489 
cemetery   associations,   361 

cemetery  grounds   of  educational   or   religious   corporations,    4S8 
religious,    charitable,   etc.,    societies.    ;>no 
to  sell   railroad,   by  receiver.  290 
to  transfer  property  upon  consolidation  or  union. — 
in  case  of  benevolent  and  charitable  societies,   498 
religious   societies,   denominations,   etc.,   492 
revocation  of  authority  of  insurance  companies   to  do  business,   "4 
sale  of  —  property  of  schools,  colleges,  etc.,  fox  purpose  of  dissolution,  480 
railroad   by   receiver.   200 
stock  to  enforce  unpaid  installments.  137 
unclaimed  freight,  etc..  87 
order  of  court  —  for  hearing  on  petition  for  dissolution  oi  corporation,  594 
in  case  of  manufacturing  and   mining  companies,  .jus.  594 


830  INDEX. 

(References  are  to  pages.) 

PUBLICATION  —  Continued. 

protest  of  director  to  a*ts  of  board, — 
in  case  of  railroad  companies,  211 
ship  canal  companies,  312,  211 
reports  to  state  officers, — 

of  building  and  loan  associations,  560 

safe  deposit  and  trust  companies.  512 
savings  and  loan  associations,  507,  508 
Service  of  process  by.      (See  Service  of  Process.) 
PUBLIC   BUILDINGS,   ETC. 

Heating  and  lighting,   municipalities   may  contract  for,  43 

PUBLIC  HALL,  ETC.,  COMPANIES. 

Buildings,  etc..  of,  may  be  on  public  grounds,  when,  569 
Corporations  not  having  capital  stock, — 

may  elect  directors  in,  when;  number,  395,  569 
may  hold  stock  in,  when.  395,  569 

liability  of,  as  stockholder,  395,  569 
qualification  of  directors,  395 
Where  buildings  are  on  public  grounds. — 
articles  may  provide,  what,  569 

as  to  capital  stock  —  number  of  shares  held  by  stockholders,  569 
reversion  of  shares   to   company,   569 
transfer  of  shares,  569 
control,  etc.,  of  buildings  and  grounds,  569 

trespassing,  etc.,  upon  same:    penalty,  569 
directors  or  trustees, — 

agreement  with  municipality  as  to   appointment  and   number,   569 
compensation  of  —  none.  569 

municipal   authorities  —  may   appoint   certain.    569 
may  be.  rx  officio,  569 
stockholders  or  members  not  to  receive  gain  or  profit,  569 
PUBLIC    STRUCTURES.      (See  Mechanic's  Liens.) 
PUBLIC  WORKS.      (See  State  Board  of  Public  Works.) 

QUARRY. 

Rates  of  toll  for  hauling  products  of,  331,  332 
QUARRYING  COMPANIES.      (See  Manufacturing  and  Mining  Companies.) 
QUORUM. 

Effect  of  acts  performed  without  a,   125 
Majority  constitutes, — 

in  case  of  board  of  appraisers  of  railroads.  65 

board  of  directors  or  trustees  of  corporation,  125 
Regulations   may   provide   as   to   number  of   stockholders   or   members   necessary   to   con- 
stitute, 137 
QUO  WARRANTO. 

Actions  in.      (See  ''Proceedings  in"  below.) 
Dissolution  of  corporations,    judgment  for,  in.  632 
Engagement  in  interstate  commerce  no  defense  to,  629 
Fines  under  statute  as  to,  disposition  of,  635 
Foreign   corporations   subject  to.    14,   371,   627,   628 
license  to  do  business  no  bar  to,  371,  628 
right  to  do  insurance  business  tested  by,  627 
Forfeiture  of  charter,  etc.,  enforced  by.  627 
can  only  be  claimed  by  state,  633 
decreed  when,  632 
discretion   of  court  as  to,    632 
in  case  of  assessment  life  insurance  companies,   386 

railroad  companies  violating  provisions  as  to  telegraph  and  telephone  lines,  240 
judgment  in  case  of,  632 

is  necessary  to  forfeiture,  633 
Ouster  from  office,  franchise,   etc.,  under- 
action for  damages  against  one  ousted,  632 

attorney's  fees  and  expenses  not  recoverable,   632 
limitation  of  time  as  to,  632 
judgment   of:    enforced   how.   etc..    631.    632 
rights  of  persons  adjudged  entitled.  632 
Ouster  of   corporation  under. — 

actions  against  officers  or  directors  for  misconduct  resulting  in.  635 


INDEX.  831 

(References  are   to  pages.) 

QUO  WARRANTO  — Continued.  . 

cause  for,  schools,  colleges,  etc.,  conferring  degrees  withoul  regard  to  merit,  4,1 

effect  of,   00 

as  to  property,  633 

stockholder's  Liability,  153 
third  persons,  032 
no  defense  to  Buit  to  enforce  stock  subscriptions,  when,  142 
Pleadings  in, — 
answer,   631 

continuance  in  office,  how  pleaded,  0-7 
defendanl   may   plead  double,  631 
demurrer  to,  631 
may  contain  what,  631 
resignation  after  Buit  not  a  sufficient,  627 
time  for  filing;   rule  day.  630,  631 
to  reply,  631 

what    is  material    as  defense,   li:'.  1 
corporate  existence  cannol  be  denied,  when.  628 

should    he    alleged,    when.    628 
demurrer  in,  631 

forfeiture  of  corporate  rights,  how  pleaded,  028 
information   in  —  answer  to,   631 
demurrer  to,  631 
filed  where,  630 

limitation    upon    scope    of.    027  _ 

location  of  place  of  hnsiness  must  be  alleged   in,   BdU 
parties  to. — 

defendants,   630 

acting  directors  may  be,  628 
plaintiffs.    629 

when  corporate  franchise  is  questioned,  627 
when    non-user    or    mis-user    is    alleged,    628 
petition  for.      (See  "information"   above.) 
reply,  in,  031 

'time  for  filing:   rule  day,  631 
rule  days  in,  630.  631  . 

court   may   extend:    effect   of.    as   to   continuance,   031 
rules  of,— common  law  and  not  code  procedure  governs,  o31 
new  matter  set  up.  taken  as  confessed,  when,  631 
statute  of  limitation-  pleaded   how.  V,:',:, 
what   matter  is  material   as  defense,  631 
"  Privilege."'  meaning  of,  028 
Proceedings  in. — 

amendment  of  charter  pending,  effect  of,  (>•_, 
attorney's  fees  in,  not    recoverable,  632 
books,  papers,  etc.,  of  company,  office,  etc.. — 
demand  for.  to  be  made.  when.  632 

by  trustees  of  dissolved  corporations  appointed  by  court.  M4 
enforced  how.  632 

in  ease  of  trustees  of  dissolved  corporation.  034 
order  for  delivery  of.  made  when,  634 
enforce  1    "how.    634 

mandate  to  common  pleas  to  carry  into  ettect,  0o4 
brought  where.  630 
burden  of  proof  on  defendant.   027 
commencement   and   prosecution   of. — 

attorney  general  may  bring,  when,  020 

attorney  for.  court  may  appoint,  when,  030 

filing  of  information   is,   635 

general  assembly  may  order.   020 

governor  may  order.   020 

leave  of  court  necessary,  when.  020 

entry  of.  on    journal  or  petition    630 
granted  at  chambers,  030 
hearing  as  to.    030 
notice  of  application  for.  630 
limitations  of  time  as  to.    034 

r.s  to  exclusive  use  of  streets  by  <ras  companies.  BdS 

commences  to  run  when,  as  against  officers.  635 

does  not  run  against  state  as  relates  to  rights  in  lam!-,  nao 


832  INDEX. 

(References   are   to   pages.) 

QUO  WARRANTO  —  Continued. 

in  case  of  forfeiture  of  charter,  G34 
mis-user  of  franchise,  634 
ouster  of  officer,  034 
pleaded   how,   635 

suit  ordered  by  legislature  is  subject  to,  635 
prosecuting  attorney  may  bring,  when,  629 

in  case  of  disability  court  may  appoint  attorney  for,  630 
supreme  court  may  order,  when,  629 
upon   relation  of   private  persons,  629 
leave  of  court  necessary,  629 
security  for  costs,  when.  629 
criminal    laws   do   not   bar,   628 
costs  in, — 

in  case  against,  corporation,  etc.,  633 
in  case  of  ouster   from   franchise,   office,  etc.,  631 
security  for,  required  when,  629 
expenses  in,  not  recoverable,  632 
grounds  for,   what  are, — 

abuse   of  corporate  powers,  628 

conducting  business   illegally,   62S 

discrimination  in  freight  rates  by  common  carriers,  629 

excessive  fare  charged   by  street  railway,   53 

exercise  of  franchises  and  powers  contrary  to  law  by  assessment  life  insurance 

companies,  387 
failure  to  complete  organization.  628 

to  construct  railroad  suitable  for  public  needs,  when,  628 
mis-user   or  non-user   of  franchises,   etc.,   of   corporations.   627,   632 

time  necessary  to  constitute  non-user,  632 
schools,  colleges,  etc.,   conferring  degrees  without  regard  to  merit,  471 
unlawfully   acting  as  a   corporation,   626,  627 

holding   franchise,   office   in    corporation,   or   public   office,   626 
surrender  of  franchises,  etc.,  of  corporation,  627 
have   precedence  to  other  civil  business,  635 
individuals  cannot  bring,  629 
judgments    in, — 

by  default,  taken  when,  628 

when  service  is  by  publication,  630 
where  corporation  has   forfeited  its  rights,  franchises,  etc.,  632 

has  misused  or  usurped  rights,  franchises,  etc.,  632 
where  election  of  directors  is  illegal,  631 

order    for   new    election:    enforcement   of,   631 
notice  of;   served  how,  631,   632 
where  office,  franchise,  etc.,  is  usurped,  631 
enforced  how,  632 

rights  of  persons  entitled  to  office,  632 
may  be  instituted,  when, — 

against  individuals,  626,  627 

against  corporations,   627,  628 

to  prevent  exercise  of  powers  and  franchises  contrary  to  law  by  assessment  life 

insurance  companies,  387 
to  prevent  excluding  legally  elected  directors,  628 

test    election    of    officers    and    right    to    conduct    affairs    of    corporation, 
etc.,  124,  626 
cannot  be  maintained  where  term  has  or  is  about  to  expire,  627 
test  power  to  exercise  eminent  domain,  628,  629 
judgment  of  probate  court  as  to,  not  a  bar,  629 
must  be  in  name  of  state,  629 
right  to  open  and  close  in,  627 
service  to  process  in,  630 

by  publication,  authorized   when,  630 
issue  and  service  of  summons,  630 
in  other  counties,  630 
speedy  trial  of,  motion  for.  632 
Res  judicata  in,  what  does  not  constitute,  628 
Right  of  railroad  company  to  hold  land  tested  by,  when,  629 


INDEX. 

<  Ref<  rcao 

RAILROADS.     (See  Railroad  Companies:    Railroad  Crossings:    Railroad  Trains:  Com 

MISS10.M.1;  of  Railroads  and  Teleqrap 
Animals, — 

duty  as  to  unloading  cattle  when  Bhipped   from   south,  575,  •  >«•< 
killed  by,  etc.       (See  also  "  Fences"  under  "  tracks"  belo 
action   for  damages  for, — 

facta  justifying  verdict  in,  218 
land  owner's  agreemeni  to  fence,  effed  oi    etc,  219 
negligence,    proof   of,   -IT 
pleadings    in,   217,   218 
statute  of  limitations,  217 
tracks  unenclosed,  effect  of,  219 
breacliy  and  unruly  animals.  219 

cattle  running  a<   large,  contributory  negligence  of  owner,  218 
duty  of  railroad  aa  to,  2  Is 
trespassing  on  inclosures  of.  driving,  riding  or  permitting,  638 
Appliances  of.      (See  "Equipment   of"   below.) 
Appropriation  of  property   for.      (See  APPROPRIATION.) 

Assessments  against.       (See  (  nji  M  issionkk  ok    1!  wi.koai.s  :    Mi  \i<  IP.V1    I  ORPORATIONS. ) 
Automatic  safety  devices.      (See  Railroad  CROSSINGS;  also  "Bridges"  "Rolling  stock 

below. ) 
Baggage.      (See  Baggage.) 
Bells.     1  Sec  Railroad  Crossings.) 
Bills  of  lading, — 

companies  must  give  of  car  lots,  when,  268 
liability  of  company  on,  268 
must   show   what.  268 

penalty  for  violating  provisions  as  to,  268 
Board  of  appraisers  and  assessors  of.      (See  Board  of  APPRAISERS,   I  i<  .,  OP  RAILROADS: 

State  Board  of  Appraisers.) 
Brakemen.     (See  " Employees  of  "  below.) 
Branch  Roads.     (See  Railroad  Companies.) 
Bridges,  etc., — 

care  required  as  to.   177 

contract  with  Ohio  River  bridge  < lpanies  authorized,  341 

charges  for  toll  under.  347 
county  commissioners  may  contract  for  wagon  tracks  in  connection  with,  .... 

ni'av  order   enlargement   of.   when:    expense  of.   576 
construction  of,  contracts  for  to  stipulate  what   aa  to   priority  ol   payments,   83 

lien  on,  for,  84 
duties  and  powers  of  commissioner  of  railroads  as  to.  21.  22 
lighting  of,  municipalities  may  require.     (See  Municipal  Corporations.) 
may  be&toli  bridges,  when.  196 

limitations  upon  location  of.   196 
toll  over,  rates  of  — change  or  revision  of,  196 
commutation  rates  permitted,  106 
county  commissioners  to  approve,  196 
must  be  uniform.  196 
posting  of.  196 
over  canals,  navigable  streams,  etc.. — 

authority  for,  obtained  how,  212,  213 

proceedings  for,  in  court  of  common  pleas.  -J12 
appointment  of  engineer,  212 
confirmation  of  report   of  engineer,  212 
notice  to  hoard  of  public  works.  212 
draw  or  swing  bridges,  etc., — 

appropriation  of  right  to  use.  242 

compensation  for,  measure  of  damages,  243 
proceedings   for,   242 
regulations  as  to  use,  242 
engines,  trains,  etc.,  cross  without  stopping  when,  23 
interlocking  system  or  fixtures  for,   23 

approval,  etc.,  of,  by  commissioner  of  railroads,  24 
not  prohibited  over  canals,  212 
other  railroad-  to  use   when,  242 
established  prior  to  1852  to  remain  when.  213 
height  of.  over  canals:  piers,  placed  how.  212 
plans  for.  approval  of,  etc..  212 

refusal  to  complv  with  provisions  as  to.  213 
over  railroad  tracks.      (See  Railroad  Crossings.) 


834  INDEX. 

(References   are   to   pages.) 

RAILROADS  —  Continued. 

power  to  build,  repair,  rebuild,  etc.,  170.  177 
Canal  banks,  use  of,  by,  189 

Cars  of.      (See  Railroad  Trains;  see  also  '•Rolling  Stock,"  below.) 
Casualties  on,  reports  must  show  what  as  to,  28 
Cattle  guards.      (See  Railroad  Crossings.) 
Charges  for  service.      (See  "Freight,''  "Passengers,"  below.) 
Coal  mines,  tracks  or  switches  to,  duty  to  switch  cars  of  other  roads  over,  236 
Competing  roads,  what  are.  etc..  20-4 

restrictions   as  to,  agreements  between,  204 
Conditional  sales  to.      (See  "Equipment"   below.) 
Conductors.      (See  "■Employees,"  below.) 
Connecting  roads  —  agreements  between,  204 

aid  to,  lease  or  purchase  of  by  other  companies,  204,  205 
powers  and  duties  upon,  204,  205 
stockholders'  consent  necessary,  206 
what  roads  are,  etc..  204 
Construction  of.      (See  "Roadway"  below.) 
Construction  trains.      (See  Railroad  Trains.) 
Crossings.      (See  Railroad  Crossings.) 
Culverts,  waterways,  etc.      (See  "Ditches"  below.) 
contracts  for,  specific  performance,  224. 

county  commissioners  may  order  enlargement  of,  when,  576 
failure  to  make,  576 
expense  of,  how  paid,  576 
plans  and  specifications  as  to,  576 
landowner  may  use  as  cattle  ways,  when,  224 

fences,  construction  and  maintenance  of,  224 
Demurrage,  tracks  of  another  company  used  without  when,  236 

penalties  for  violating  provisions  as  to,  265.  236 
Depot  buildings  of.      (See  Union  Depot  Companies;  also  "  Stations,"  below.) 
appropriation  of  property  for,  183,  185 
bonds  for  building,  196 

in  case  of  consolidated  companies,  210 
breaking  locks,  fastenings,  etc.,  of,  636 
capital  stock  increased  for,  208 

contracts  for,  must  stipulate  what  as  to  priority  of  lien,  83 
lien    for  construction   of,   84.   85 
ordinances  prohibiting  soliciting  at,  valid,  314 
power  to  construct,  maintain,  etc.,   176 
Ditches  or  drains.      (See  "Culverts"  above.) 
agreements  as  to  maintaining,  237 
appropriations  of  way  for,  183 

assessments  for  county,  owner  not  lessee  liable  for,  237 
enforcement  of  provisions  as  to,  237 

commission  to  determine  as  to,  237 
fees  and  expenses  in,  237 
notice  to  agents  of  railroad,  237 
sale  of  work  and  proceedings  thereunder,  237 
must  be  constructed  when  and  where,  236 
receiver  proper  party  to  enjoin  when.  288 
Electric  light  plant  of,  when  not  part  of  railroad,  85 
Elevators, — 

bonds  for  building  in  case  of  consolidated  companies,  210 
tracks  or  switches  to,  duty  to  switch  cars  of  other  companies  over,  236 
Employees  of. — 

agreements,  etc.,  exempting  from  liability  for  injuries  to, — 
are  against  public  policy.  251 
are  forbidden ;    penalty,  250.  251 
insurance  company  cannot,  stipulate  for,  250 
blacklisting:  clearance  card.  251 
boarding  of  certain  —  lien  for.  84,  85 

order  of  payment  of  claim  for.  83 
brakeman  —  compensation  for  overtime,  248 
day's  work,  what  constitutes,  248 
hours    of    service,    regulations    as    to.    248 
colorblindness  of  —  disqualifies  when.  247 
examination  as  to ;  penalty.  247 

expense  of,  company  to  pay,  247 
conductor  —  compensation  of,  for  overtime,  248 


[NDEX. 

(References   are    to    ilircs.) 

RAILROADS  — Continued. 

day's   work,    what  constitutes,   248 

hours  of  service,  regulations  as  to,  248 

of  construction  and  freight  trains,  qualifications,  247 

of  passenger  t  rains  — 

has  power  (if  police  officer,  293 

may  arrest  passenger  when,  29  l 

may  eject    passenger  when,  293 

I'd  urn   nf   tail'    upon,    29 1 

penalty  for  neglect  of  duly  as  in  arrest,  etc.,  of  passenger   294 

qualificat  ions  of,  247 

summons  againsl   railroad  served  on  when,  58  ! 
when  in  bands  of  receiver,  .">7s.  580 
contract  of  employment  governed  by  law-  of  state  where  made,  254 
defined:  who  are,  24!).  252 
discharge  of  — 

for  refusing  to  join  relief  association,  250 
reason  for  to  be  given  in  writing  when.  250 

const  itut  Lonality  of  provision,  251 

liability  for  refusal  to  give,  250,  251 

one  quitting  not  entitled  to,  251 

refusal   to   give,   251 
engineer    (civil). — 

duties  of  as  to  work  under  construction,  89 
must  certify  and  sign   maps.  etc..  of  road.  26 
penalty  for  false  or  inaccurate  estimates,  89 
engineer    ( locomotive ) , — 

compensation  of.  for  overtime,  24S 

day's  work,  what  constitutes,  248 

hours  of  service,  regulations  as  to,  248 

intoxicated,  or   addicted   to   drink,  employment   of.   249 

penalties  against  for  violating  laws  as  to.  — 

bells  and  whistles  at  highway  crossings,  227,  t ; ; J T 

crossings  over  railroads,  221!.*  637 

obstructing  streets,  etc.  V>:\~ 

unlawful   speed  in  corporate  limit-.  46 
qualifications  of.  248 
'fellow  servants."      (See  also  "Superior  officer"  below.) 
negligence  of. —  no  defense  when.  254 

rule  as  to  liability  for,  249,  254 
who  are,  etc. :   defined,  253 

brakeman    and    inspector   are,   255 

brakeman    is.   to  other  brakemen.   255 

car  inspector  is  not,  of  brakeman,  253 

car  repairer  is  not,  of  foreman  of  repair  gang  when,  255 

car  repairer  and  conductor  are.   255 

conductor  is  not  of  conductor  riding  on  pa>s.  254 
of  yard  brakeman,  253 

employee  going  home  after  work  is  not,  254 

engineer  is.  to  brakeman.  when.  2.14 
to  employees  on  gravel  train.  254 

fireman  and  section  hands  are.  255 

flagmen  of  trains   are   not,   248 

one  charged  with  blocking  frogs,  etc..  is  not,  of  other  employees,  249 

section  boss  and  men   are,   when.   255 

telegraph  operator  is.  of  engineer.  253 

train   dispatcher  is  not,  of  engineer.   25 1 

yardmaster   is   not.  of  brakeman.  254 

yard  switchman   is  not  of  conductors  or  engineers  when,  254 
firemen  — 

compensation  of.   for   overtime.   248 
day's  work,  what  constitutes,  248 
hours  of  service,  regulations  as  to.  24S 
flagmen  —  at  highway  crossings.      (See  Railroad  Crossings.) 
qualifications  of,   247 

responsibility  of.  for  negligence,  etc..  248 
injuries  or  death   from  defective  equipment,  etc..  251 
application  of   provisions  as  to.  252 

contract  requiring  employee  to  inspect,  void.   when.  252 
flat-car  without  sides  or  ends  not  defective,   253 


836  INDEX. 

(References  are  to  pages.) 

KAILROADS  —  Continued. 

foreign  contract  of  employment;  injury  outside  state,  effect,  253 
know  ledge  of  company,  of  defects  presumed  \vhen;  252 
effect  of  competent  inspector  upon,  252 
of   latent  defects  upon,  252 
knowledge  of  plaintiff  as  to  defects ;  pleadings  as  to,  252 
negligence  of  company, — 

burden  of  proof  as  to  due  diligence,  252 
presumption  as  to  may  be  rebutted,  252 
prima  facie  evidence  of,  252 
retroactive  effect  of  provisions  as  to,  as  relates  to  evidence,  252 
want  of  appliance  same  as  defective,  252 
when  intoxicated,  339 

where  negligent  party  had  no  subordinate,  253 
intoxicated  or  addicted  to  drink,  as  to  employment  of,  249 
mutual  benefit  societies  of.      (See  Insurance  Companies  —  Lile.) 
provisions  of  §§  3630a  to  3630f.  3631  do  not  apply,  when,  393 
relief  associations, — 

acceptance  of  benefits  by  widow  no  bar  to  action.  251.  393 

by  member  and  release  of  damages  valid,  when,  251 
company  cannot  require  membership  in,  250 

cannot  withhold  wages  to  pay  assessments  in,  250 
contracts  giving  option  of  benefits  or  damages  permitted,  251 

requiring  waiver  of  damages,  etc.,  void.  250 
members  may  resort  to   state  courts,   when.   251,   393 
penalty  for  violating  provisions  as  to.  250 
sections   36S0  to  3630f.  3631  do  not  apply,  when.  393 
"superior   officers."      (See   also   "fellow   servants"   above.) 
assumed  risk  of  negligence  of.   254 
authority  to  direct :   question  of  fact,  253.  254 
"  branch    department "    construed   how,    as   relates   to,   253 
who    are:    definition.    253 

conductor  is,  of  brakeman  or  engineer.  255 
engineer  is.   of  brakeman  or  fireman,   when.   253.    254 
"  hostler  "  is.  of  yard  laborer  assisting  in  care  of  engines,  253 
telegraph   operators. — 

compensation   of,   for   overtime.   248 
day's  work,   what  constitutes.  24S 
hours  of  service,  regulations  as  to.  248 

must   transmit    message   of    passenger    delaved    by    accident    or   collision    forth- 
with, 261,  262 
alteration,  revision,  etc..  of  forbidden.  262 
penalty  for  violating  provisions  as  to.  262 
ticket  and  freight  agents, — 

garnishee  process  from  justice  of  peace  served  on.  625 
summons  may  be  served  upon.  when.  5S2 
in  actions   against  receivers,  289 
in  action    before  justice  of  peace.   623 

service  on  agent   of  receiver  not  good  against  company,  when,  533 
when   in  hands  of  receiver.  578,  579 

where  company  enters,  jurisdiction  by  ferry  boat  only,  583 
who  not  eligible  to  appointment  as.  212 
trainmen, — 

compensation    of.    for    overtime,    248 
day's   work,   what  constitutes,   248 
Hours   of  service,   regulations  as  to,   248 
watchmen,   etc.      (See  "Flagmen"  above.) 
Engineers.      (See  "Employees"  above.) 

Engines.      (See  Railroad   Trains.     "Boiling  stock"  below.) 
Execution  against  property  in  use,  199 

Equipment,   etc.,  of.      (See   also  "machinery,"  "Rolling  stock"  below.) 
bonds  issued  for,   when,  209 
conditional  sales-  of.  to, — 

contract,  etc.,  of,  filed,  etc.,  with  secretary  of  state.  200,  267 
fees    for,   267 

what  contracts  included,  267 
leases  of  equipment,  may  stipulate  for,  267 
injuring  or  meddling  with:  penalty.  636 
is  murder  when.   636 


INDEX.  **? 

(References  arc  to  pai 

RAILR<  >ADS  —  Continued, 
inspection  of, — 

duty  and  extent  of,  252 

in  case  of  foreign  cars,  etc.,  252 
effect  of,  upon  presumption  of  knowledge,  262 
Fences.     (See  "Tracks"  below.) 
Fare  on.     (See  "Passengers"  below.) 
Fires  along.     (See  "Right  of  way,"  "  Boiling  stock"  below,     also  "  Liability  0/      under 

Railroad  Companies.) 
Firemen.     (See  "Employees"   above.) 
Fixtures,  etc., —  capital  stock  increased,  for,  2U8 

stone  piers  are,  when,  180 
Flagmen.      (See   "Employees"   above.) 
Flags.     ( See  "  8  ign  als"  belo  w  .  1 

Foot  bridges  over  tracks.      (See  "Bridges"  above.) 
Freight  over, — 

charges  for,  etc., — 

companies  without  telegraph,  etc..  lines  cannol   collect,  when,  Z4U 
discrimination  in:    equal    rates  to  all,   259 
against  points  in  state,  201 

penalties   for  violating  provisions,  261 
consignee  cannot  sue,  when,  259 
injunction  to  prevent,   259 
quo  warranto  lies  to  prevent,  259,  629 
rebates  —  actions    to   enforce,    259 
to  large  shippers,  259 
unlawful,  259,  260 
for  returning  empty  ears  of  other  companies  from  sidings,  etc.    236 
switching,  etc.,  car-  of  other  companies,  236 
transporting   cars   of   freight    of    other   companies,    236 
lien  for,  and  for  storage,  etc.,  86,   81 

action  to  enforce,  87 
long  and  short  hauls,  261,  264 

when  competing  with  public  works..  259 
over  charges  —  assessment  of  damages  for.   266 
interest  on,  206 
joinder  of  actions  for,  260 
liability  of  agent  or  employee  for,  205 
penalties   for.   20.3 
pleadings  in  actions  for,   266 
recovery  of,  by  shipper,  265 
rights  of  shipper,  when  fraudulent,  259 
separate   action  for   each  offense,  except,   265 
rates  01.  authorized,  264 

effect  of  laws  reducing.   91 
for  less  than  thirty  miles.  264 

reasonableness  of.  264 
in  case  of  articles  of  unusual  bulk,  204 
branch  roads.  200 

coal,  pig  iron,  limestone,  iron  ore.  stone,  lumber,   264 
roads  under  construction,  206 
penalties   for  violating  provisions.    265 
tariff  of  —  change  of;   notice,  etc..   260 
publication  or   posting.  259,  260 
unlawful  to  charge   less  than,  260 
to  or  from  points  competing  with  public  works,  258,  259 
rights  of  companies  under  special  charter-.  2i'>4 
loading  and  unloading,  charges  for  when  done  by  company,  204 
receipt  of.  at  destination,  notice  of,  86 
storage   or   warehouse   receipts, — 

companies  may  issue,  when,  207 
consent  of  consignee  necessary.  267 
issued  for  grain,  iron  ore,  merchandise.  207 
must   state  what:    signed  by  whom,  207 
transfer  of,  267 
transportation,  etc.,  of. — 

contracts,  etc..  for.  valid,  when.  265 

not  to  carry  to  certain  points  forbidden.  260 
discrimination  —  between   through  and  way,  forbidden.  261 
trunk  roads  not  to  make  between  other  roads  n<  to.  260 


838  INDEX. 

(References   are   to   pages.) 

RAILROADS  —  Continued. 

diverting  freight  to  lines  not  named  by  shipper,  260 
agent,  guilty  of  misdemeanor,  20U 
rights  of  company   discriminated  against,   200 
duty  as   to,  of  cars,  etc.,  of  other  companies,   230 
equal  facilities  for.  to  shippers  of  same  class,  261 

damages  for  refusing,  201 
injunction  to  enforce  provisions,  200,  261 
unclaimed,   etc., —  register   of,   to   be   kept,    80 

sale  of;  notice  of;  disposition  of  proceeds,  86,  87 
Freight  agent  of.      (See  "Employees"  above.) 
Freight  trains.      (See  Railroad  Trains.) 
Freight  ways  or  private  railroads.      (See  Freight  Ways.) 
Frogs,  guard  rails,  etc.      (See  "Tracks,  sivitches,  etc."  below.) 
Highways.      (See    Railroad   Crossings;    also   "streets,   etc."   below.) 
Improvements  —  bonds  for  making,  11)6 

in  case  of  consolidated  companies,  210 
Injuries.      (See  "Animals",  "Employees"  above.) 

to  persons,  fatal;  report  to  and  examination  by  commissioner  of  railroads,  29 
Inspection.      (See  "Equipment  "  above.) 
Labor.      (See  "Liens"  below.) 

claims  for,  collection  by  garnishment,  585 
Lamps.      (See  "Signals"  below. ) 
leases  of  roads, — 

acknowledgment  of,  if  for  more  than  three  years.  204 

bonds  to  purchase  leased  roads,  issue  of,  by  consolidated  companies,  209 
copies  of  certain  to  be  furnished  commission  of  railroads,  2!) 
companies  may  make,  when,  204 

in  case  of  consolidated  companies,  270 
foreign  companies,  204 
duties,  disabilities,  restrictions,  etc.,  of  leasing  company,   206 
liabilities  under, — 

joint  and  several  of  lessor  and  lessee  —  for  damages  from  fires,  207 
for  damages  for  use  and  occupancy  of  streets,  etc.,   191 
for  personal  injuries,  etc.,  205,  207 

statute    of    limitations,    suit    against    one    will    not    save    running    agains.. 
other,   207 
of  lessor,  207 

for  —  fires,  207 

negligence  of  employee  of  receiver  of  lessee,  207 
personal  injuries,  etc.,  207 
to    rebuild,    etc.,    205 
under  common  law,  207 
old  laws,  207 
preservation  of  property,  security  for,  207 
rental,  amount  of,  and  security  for,  200,  207 
rescission,  etc.,  of, — 

receiver  may  abrogate,  when,  205 

stockholders  may  appeal  from  order  of  cancellation,  when,  207 
vote  of  stockholders  necessary.   204 
rights  of  dissenting  stockholders,  206.  207 

of  lessee  advancing  money  to  pay  coupons  on  bonds,  204 
subsequent  to  mortgage,  effect  of,   196,  197 
specific  performance  of,  compelled,  when,  205 
stockholders'  consent  to,  necessary,  206 
undivided  interest,  company  may  lease,  when,  286 

approval  by  court:   effect  upon  liens,  286 
what  roads  could   be  leased  prior  to    18S2,  205 
Liens  against.      (See  Mechanic's  Lien.) 
for  labor,  materials,  damages,  etc.. — 

continue  after   sale,  etc.,   under  mortgage,   etc..   when,   283,  284 
action  and  cross-petition  for  foreclosure,  284 
court  retains  amount  of,  284 

distribution  of,  when.  284 

notice  as  to,  to  clerk  of  court,  284 

to  officer  making  sale,  2S4 

reading  at  sale  and  return  of  to  court,  284 
Lighting.      (See  Mtxkipal  Corporations.) 
Location  of.      i  See  "Roadway"  below.) 
Locomotives.      (See  "Engines"  above.) 


INDEX.  830 

(References  are  to  p 

RAILROADS  —  Continued. 

Machinery   for.     (See   "Equipment"   above.) 
bunas  for  increasing,    L9U 
capital  stock  increased  for  increasing,  208 
Machine  shops,  etc., — 

appropriation  ot  property   for,   183 
bonds  for  building,   196 

in  case  of  certain  narrow  gauge  roads,  199 
consolidated  companies,  210 
power  of  companies  to  eonstrucl  and  maintain,   170 

Mail   trains.       (Sec   RAILROAD  TRAINS.) 

Maps,  etc.     (Sec  ■•  Roadway"  below.) 
Materials  for,  etc.     (See  "  Liens"  above.) 

claim-  for,  collection  by  garnishment,  585 
Mechanic's   liens   against.     (See   Mechanic's    Liens;    also   "Liens"   above.) 
Mortgage  or  deed  of  trust  of.     (Sec  Railroad  Companies.) 

.Motive    power   of.    electricity    used    as,    210 

consent  of  municipal  authorities,  when,  210 
Navigable  waters.     (Sec  "Bridges"  above.) 

switching  cars  of  other  companies  over  tracks  and  switches  to,  236 
Operating  contracts.      (See  "Leases"  above.) 

bonds  for  purchase  of  roads  held  under,  209 
powers  of  consolidated  company  as  to,  276 
Operation,  management,  etc.,  of, — 

bonds  for,  in  case  of  certain  narrow  gauge  roads,   199 

in  case  of  consolidated  companies,  210 
power  of  company  as  to.  176 

power  to  purchase  implies,   177 
when  company  compelled  to  operate.  177 
Over  head  structures.      (See  "Bridges"  above;  "Wires,  etc."  below.) 
Owned  in   common, — 

division  and  disposal  of;  agreements  as  to,  27!) 
effect  upon  liens,  279 
proceedings,  when  unable  to  agree,  279 
improvement  and  development  of:    agreements  as  to,  279 
cost  of  —  apportionment  and  payment,   280 

sale  of  interest  in  to  pay.  280 
limitation  upon  power  to  compel.  280 
proceedings  when  unable  to  agree.  279 
partition  of,  not  compulsory.  280.  286 
provisions  as  to,  apply  to  lessees  of,  280 
sale  of,  undivided  interest  in,  286 
Passengers  upon, — 

arnst  of,  by  conductor,  when.  294 
held  for  trial,  where,  294 

provisions  as  to,  do  not  affect  liability  of  company.  294 
delayed  by  accident  or  collision. — 

'telegraph  message    of.  to  be  sent  forthwith.  281,  262 
alteration   or   reversion  of   forbidden.   262 
penalties  for  violating  provisions  as  to.  262 
ejection  of,  by  conductor,  when.  293 
causes  for,  29:3 
damages    for    wrongful.     294 
force  used  in;  amount  of,  293 
for   refusal    to   pay    fare.      {See    below. ) 
place  of.  293,  294* 

provisions   as   to,   do   not   affect   liability   of   company,   294 
return    of    fare   upon.    294 
when  car  in  motion;  negligence,  294 
fare  from, 

companies  without  telegraph  lines  cannot  collect   when.  240 
exemption  from,  commissioner  of  railroads  entitled  to.  25 
overcharge   of. — 

assessment    of    damages    for,    penalty.    20.").    266 
interest   on,   266 
joinder    of    actions    for,    266 
liability   of   agent,    etc..   for,   263 
pleadings    in    action    for.    266 

separate  action  for  each   offense,   except.    265,   266 
rate  of.  262 


840  INDEX. 

(References   are   to   pages.) 

RAILROADS  —  Continued. 

distance  less   than  eight  miles;   reasonableness,   262 
in   case   of    branch    roads,    200 

roads  under   construction,   260 
penalties   for   violating   provisions   as  to,   265 
rights  as  to,  under   special   charters,   262 
ticket  rate  and  car   rate, — 

duty  of  passengers  when  car  rate  is  illegal,  262 
right  to  establish,  262 
what   multiple   of    live    used    to    compute,    262 
refusal  to  pay,  expulsion  from  car   for.  268 
measure  of  damages   fur   illegal,    268 
tender   of   fare   not   good    when,    268 
time,    manner   and   place  of,   268 
tickets   for  —  authority   of   agent   to   sell,   263 
definition   of,   263 

drovers',  exemption   from  negligence  void,   263 
limited  in  time,   invalid   after    limit,   264 
mileage, — ■  right    to    take    up,    264 

waiver  of  conditions,  264 
procuring,  before  taking  passage  on  freight  train  reasonable  regulation,  2C4 
rights  of  holders   of, — ■  fraudulently   obtained,   263 
for  continuous  passage  only,  when,   263 
lost,  263 

taking  wrong  train,  263 
to  a  seat,  264 

wrongfully   taken   up,   263,   264 
toll  for,  over  Ohio  River  bridge,  347 
transportation  of, — 

contracts,  etc.,  not  to  carry,  to  certain  points  forbidden,  260 
injunction   lies  to   enforce  provisions,  260.   261 
trunk  roads  not  to  discriminate  between  roads  as  to,  260 
upon  freight  trains,  264 
Passenger  trains.      (See  Railroad  Trains.) 
Passes;  free  travel;   by  commissioner  of  railroads,  25 

effect  of  exemption  from  negligence  in,   263 
Police  for.      (See  Railroad  Police.) 
Private  roads.      (See  Freight  Ways.) 
Purchase  of, — 

bonds  for,  of  road  under  lease,  etc.,  consolidated  companies  may  issue,  209 
capital   stock   increased   for,    208 
powers  of  companies  as  to,  176,  204 

consent   of   stockholders    necessary,   206 
from   purchasers   at  judicial   sale,   291,   292 
in  case  of  consolidated  companies,  276 
roads  owned  in  common,  280 
roads  sold   at  judicial  sale,  291,  292 
right  of  dissenting  stockholders,  206 
Relief  associations  of  employees  of.      (See  "Employees"  above.) 
Regulations  as   to  —  company  may  make  what,   293 

railroad   police   to   enforce,   293 
Right  of  way  of.      (See  also  "Road  way"  below.) 
agreement  to  arbitrate  as  to  price  of,  187 
appropriation    of.      (See    Appropriation.) 

for  opening  or  extending  streets,  etc.,   43 
combustible  materials  along  or   upon.      (See  "Liability   of"  under   Railroad  Com- 
panies. ) 
abutting  owner  may  remove  when,   245 

expense  of,   recovered   from   company,   245 
notice  to  company,  245 
company  must  keep,  clear  from,  244 

whole  width   must  be  cleared,   245 
damages  for  failure  to  keep,  clear  of,  244 

origin  of  fire  immaterial,   245 
grain  elevator  is  not,  245 
contracts  for,  grants  of.   etc.. 

ambiguous   description   estopped   as  to,    187 

are   perpetual,    unless   limited,    187 

conditioned  on  location  of  road  or  use  of  lands,  187 

includes   what   lands.    186 


INDEX.  8-11 

(References   arc    to   pages.) 

RAILROADS  —  Continued. 

record  of  —  effect  as  evidence,  etc.,  215 
impeachment  of,  215 

selection,  rights  determined   when,   187 
deeds  to: — construction    Of,    L88 

held  in  escrow,    188 
forfeiture  of,  by  non-user  when,  288 
license  to  take  gravel   from,   L88 

lighting,   municipalities   may    require.     (See    Muuiotpaj    Corporation* 
poles  of  telegraph   companies  along:   damages   for,   317 
power    to    purchase    property    for,    180 

in  case   of  company    selling,   etc.,    road    1 1 *■  I <  1    in    common,   280 
statement  as   to  lands  occupied   by,   filed    with   county  auditor,   214 
weeds,  etc.  along.     (See  "combustible   materials  along"  above.) 
when  title  to,  not  of  record, — 

survey   and    plat:     record,    etc.,    215 

abutting  owners    may    make    when,    _'  I  :< 
taxation   of,    215 
Roadway  of.      (Sec  also  "Right  <>j    way"  above.) 
bridges,  etc.,  along.      (See  "  Bridges"  above.) 
conibustihle   materials  along.      (See    "Right    of    way"    above.) 
construction  of. — 

appropriation  of  materials  for,   183 

of    way    over    adjacent    lands    for,    183 
aid  for.      (See  CORPORATIONS. ) 

by  other  railroads,   when,  204 

assent    of    stockholders    to,    206 
bonds   issued   for.   when,    1 ! Hi.   20!) 

in  case  of  certain   narrow  gauge  roads,   199 
consolidated  companies,  210 
capital    stock    may   be    increased    for.    208 
contracts  for  —  interpretation  of.    177 

order  of  priority   of  payments   under,  83 
powers   of   company   as    to,    177 
lien    for,    payment    for,    84,    85 
powers  of  companies  as  to,   176 
crossings   over    highways,    railroads,    etc.      (See    RAILROAD   CBOSSnw 
ditches,    drains,    etc.      (See    "Culverts;"    "Ditches"    above.) 
embankments  for,  appropriation  of   property   for,   185 
extensions  of, — 
bends  for,  196 

in    case    of    consolidated    companies.    210 
capital    stock   may    be   increased    for,    20S 
certificate    of.    making,   filing,    etc.,   208 

fees   for   filing,   9 
effect  of,  on   existing  niori  gages,   208 
into    adjoining   states.    182 

location  of:    from  termini   and  not  middle   of  route.   ISO 
not   authorized   by  power   to   change   route  or   termini,    179 
stockholders    must    authorize,    208 
lighting.      (See  "Right   of   way"  above.) 
location   of  —  agreements   as   to,    178 
between    named    termini,    176 
bonds   issued   for.   when,   209 
change  of,  17S-181 

abandonment  not   authorized,    17S.    1S1 

appropriation   of  property    for.    181 

cannot  be  made  when,   180,   181,  205 

causes  for,   ISO,   1S1 

certificate  of  change  of  counties  of.  tiled  with  secretary  of  state.   180 

consent   of   stockholders   necessary  when,    178 

damages  to  land  owner   for,   181,  182 

directors  may  make,    17S.    181 

effect  on  stock  subscriptions,   179,  181 

indirect  or  evasive,    180 

in  junction    asainst,    ISO 

limitations   upon.    178.    179.   181,    1S2 

mortgages,  cover  changed  line,  180 

notice  of.   when.   181 

provisions  as  to,  construed  how,   179 


842  INDEX. 

(References   are   to   pages.) 

RAILROADS  —  Continued. 

resolution   describing  —  certified   to   secretary  of   state  when,    1811 
need  not   show  new   route.    179  — 

compliance  with  charter  as  to,   177.   178 
discretion  as  to,   177 

effect  of:    exclusion  of  other  companies,    178 
in  adjoining  states,  182 
power   to    make,    exhausted   when.    179 
what   constitutes,   178 
main  line  of,   reports  must   show  what  as  to,   27 
maintenance  of.      (See   "Operation,  etc."  above.) 
mails   and   profile    of  —  certified   and   signed   by    whom,    20 
filed    with    commissioner    of    railroads,    2G 
scale  of,   20 
repair,  etc..   of.      (See   "Operation"   above.) 

appropriation   of  way   for,   over  adjacent   lands,    183 
structures  over.      (See   ''Bridges,  etc."   above.) 
taxation  of;    included  in  persona!  property,   00 
termini  of  —  articles  to  give,   170 

certificate  as  to,  when  in  county  on  state  line,   178 
change   of  —  consent   of  stockholders   to,    178,   208 
certificate   of;    making,    filing,   etc.,   208 
directors  may  make,    178,   208 
effect,   on   stock   subscriptions,    179 
limitations  upon,  178 

resolution   showing,   certified  to   secretary  of   state,   180 
located  where,   170,   178 
viaducts  over.      (See  Railroad  Crossings.) 
Rolling  stock  of.      (See  Railroad  Train:  Rolling  Stock  Company:  Equipment   (R.  R.) 
Co.'s:      See  also  "Equipment"  above.) 
appropriation  of  use  of,  telegraph  companies  cannot  make,  318 
automatic   couplers,   airbrakes,    etc., — 
companies  must  use,  255  et  seq. 
inspector  of, — 

appointment,    term,   bond,   oath,   qualifications,    etc.,   255,   250 
duties  and  powers  of,  250,  257 
office  of,  where  located,  250 
salary  and  expenses  of,  250 
reports  of,  250 
penalties  for  failure  to  comply  with  provision  as  to,  255,  250,  257 
reports  as  to,  by  companies,  255,  257 
cars,  — ■ 

airbrakes,  automatic  couplers,  on.      (See  above.) 

cattle,  disinfection  of.  etc.,  when,  575 

climbing  upon,  penalty,  038 

condemned   by   inspector   of   automatic   couplers,   257 

duty  to  switch  and  transport,  of  other  companies,  230 

charges  for;    enforcement  of.  230 
heating  apparatus  for  baggage,  express,  mail,  passenger,  238 
passenger  — 

fire  extinguishers  for,  239.   240 

approval    of,    by   commissioner    of   railroads,    239 
construction,    size,    cost,    etc.,    239 
heating  apparatus   (see  above), 
lighting,  test  of  oil  used   in.  238 
lowest  step  of,  height  above   station  platform,  239 
movable  bridge  or  apron  between,  338 

enforcement  of  provisions  as  to,  238 
reports  must  show  what  as  to,  27,  255,  257 
toll  for,  over  Ohio  river  bridge,   347 
conditional    sales    of.      (See   "Equipment,"    above.) 
engines,    locomotives,    — 
bells  upon,  220 

must  be  rung  when,  220,  037 
climbing  upon ;   penalty.  038 

condemned  by  inspector  of  automatic  couplers,  etc.,  257 
power  brakes  to  be  used  on;  penalty,  257 

spark  arresters  for.      (See  also  "Liability  of"  under  Railroad  Company.) 
company  must  use  and  keep  in  repair  when,  243 
care  required   during   excepted   season.   243 


INDKX.  848 

(References  ore  to  pages.) 

RAILROADS  —  Continued. 

construction  and  efficiency  of  —  burden  of  prool  as  to,  Z43 
cinders  as  evidence,  2 1 1 

evidence  ;is  t<>  general   use,  2  13 

as  to  origin  of  lire.  2 1  I 
expert  testimony  as  to.  243 
tires  set  by  other  engines  of  company,  etc.,  2  I  * 
high  wind's,  effect  of.  upon,  2  13 
kind  of  apparatus,  243 
specimens  of  wire  netting  as  evidence,  2tt 
failure  to  comply  with  provisions  as  to.  2  1  t 
is  negligence  per  s< .  243 
justice  of  peace  has  no  jurisdiction,  243 

injunction  against  us '  engines  unequipped,  244 

inspect  ion  and  repair  of.  2  13 
penalty  for  violating  provisions  as  to,  244 
whistles  upon,  required,  226 

must  he  blown   when.   226,   227,   228,   637 
increase  of  — 

bonds  issued  for,    196 

incase  of  certain  narrow-gauge   roads.    L99 
consolidated    companies,   210 
capital  stock  increased   for,  208 
mortgage  of,  extra  territorial   force  of.  197 
shooting  or  throwing  at.  636 
taxation    of.   apportioned   how.   tiT 

when  not  belonging  to  company,  66 
Round  houses  — 

appropriation  of  property  for,   183 
power  to  construct,  maintain,  etc.,   17G 
Route.      (See  "  Location,"  above.) 
Sale  of.      (See  "  Real  Estate"  under  Railroad  Companies.) 

at  judicial  sale, —  .  .,   , 

appraisement;  number  and  qualifications  of  appraisers,  etc..  _.)<>.  -U 

confirmation   of,   291 

transcript  of  decree  filed  with  secretary  of  state:   effect  ot.  -H 
costs  and  expenses  in  case  of  readjustment  agreement,  28b 
deed    for    property,    291 
deposits  with  bids,  return  of,  291 
distribution   of  proceeds.  291 
includes  what.  290 
may  be  made  when.  290 
notice  of,  291 

order  of  sale;   proceedings  under.  290,  291 
petition  for,   must    show  what,  290 

notice  of.  290 
proceedings   for,  effect  of   readjustment    agreement   on.   285,   _Mi 
purchasers    of  —  become    corporation    when.    291 

may   sell    when   and   to   whom,   291 
deed   and  record  of.  -291.  292 

title   of,   to  property,   etc..  291 

who    may    become.    291 
terms  of;   as  to  payments,   291 

must    be    two-thirds    of    appraisement    when.    291 
power  of  companies  to   make. — 
of    undivided    interest,    286 

court  must   approve.   286 

effect    upon    liens,    286 
under  plan    for   reorganization.      ( See  _Railkoad    COMPANIES.) 
when  unable  to  complete,  etc..  287 

consent    of    stockholders   necessary.    287 

effect    of,    upon    stock    subscriptions.    2*7 

includes  what.  2S7 

must  be  by  deed.  287 

rights  of  dissenting-  stockholders.   2*7 

terms  of.   prescribed  at  stockholders'  meeting.   2s, 

what  passes  by,  288 
Scrap  metals  of —  bill  of  sale  for:  penalty.  241 
company  may  replevin  when.  241 
affidavit' in,  sufficient  when,  242 


844  INDEX. 

(References   are   to   pages.) 

RAILROADS  —  Continued. 

defendant  must  establish  title,  242 
effect  of  confusion  or  mixture  of  goods,  241 
penalty  in  absence  of  good  and  reasonable  cause  for,  242 
rights   of  other  companies,  242 
dealer  in,  must  prove  ownership,   241,  242 
duty  of  purchaser  of,  as  to  title,  241 
must  be  sold  in  what  quantity,  241 
who    may   sell,    241 
Sidings.      (See   "Tracks,   Siritchcs,   etc.,''   below.) 

Signals,  flags,  lamps,  etc.,  unlawful  injuring,  removing,  meddling  with,  etc.,  036 
Spark   arresters.      (See  "Engines,"  above.) 
Speed.      (See  Railroad  Trains.) 
Stations  — - 

for  passengers.      (See  "Depots,"  above.) 

platform  of,  distance  from,  to  steps  of  passenger  cars.  239 
waiting  rooms  —  provision,  care  of,   etc.:   penalty.   214 
duty  of  commissioner  of  railroads  as  to,  214 
for  water  and  wood,  are  personal  property  as  to  taxation,  GO 
Storage  or  warehouse  receipts.      ( See  "  Freight,''  above. ) 
Streams,  diversion  of,  193,  15  J 

appropriation  of  property  because  of,  195 
on  railroad  lands :  damages  for.  when.  195 
statute  of  limitations  as  to,   195 
Streets,  alleys,  highways,  etc. — 

crossings  at.  diversion  of,  obstruction  of.  etc.      (See  Railroad  Crossings.)' 
opening,  etc..   across  property  of,  43,   190 
use  and  occupancy  of,  by,  — 

abandonment   or  surrender  of,  not  permitted,   189,    194 
additional  burdens,   296 
agreement,  etc..  as  to.  — ■ 

conditions   imposed  —  effect    of:    what    permitted,    190 
limiting   use  to  night   hours,    190 
repairing,    grading,   etc.,   streets,    190 
construction  of.  190 
effect  upon  rights  of  land  owner.  190 

made  with  county  commissioners  should  be  entered  on  minutes.  190 
municipalities  may  make  as  to  manner,  fines,  and  condition  of,  188 
appropriation  of  right  to.  188 

consent  of  owner  of  property  to.  effect  of  when  unrecorded.  192 
effect  of,  upon  powers  and  liabilities  of  municipality,  188,  189 
exclusive  right  to,  cannot  be  acquired,  189 
injunction  against,  vy  property  owners,  191 

mandatory,  to  restore  when,   191 
liability  for  damages  to  public  or  private  property,  188,  190 
action  for  by  administrator,  when,  191 

by  mortgagee,  when.  192 
extent  of;   measure  of,   192 

access,  obstruction  of.  what  is,  184,   192 
additional  tracks.  102 
interest,  allowance  in  nature  of.  193 
liability  of  city,  no  guide  to,  191 
obstruction  of  streets,  192 
running  of  cars,    192 
smoke,  noise,  fire,  etc.,  193 
temporary  injury  due  to  construction,  192 
follows  the  land  when,  193 
in  case  of  lessee  and   lessor  of  railroad,    191 
"  near   to,"    what  property   is,    191 
proof  of  title  of  property  owner,  192 
rule  of  damages  in,  193 

statute  of  limitations  as  to.   188,   190,    191 
track  completed  when,  191 
limitations  upon,  188 
paving  and  repairs  by  company.  190 
rights  of  public  on  tracks  in  streets,  189 
right  to  run  along  or  upon  highway,   177,   188 
unauthorized  —  ejectment  lies  to  recover  from,  189 
is    a   nuisance:    injunction   lies,    189 
liability  of  company  because  of,   189,   190 


[NDEX.  84.". 

(References  arc  to  pages.) 


RAILROADS  —  Continued. 

statute  of   limitations  us  to,   l!il 
Structures  of  — 

duties  and  powers  of  commissioner  of  railroads  as  to,  21 
over  tracks.      (Sec  "Bridges,"  above.) 
Switches.     (See  "  Tracks,  Switches,  etc"  below.) 
Telegraph  and  telephone  lines  — 

companies  musl   erect  and  maintain  when.  240 
power  to  construct,  maintain,  etc,    170,   177 
use  <>f,  for  genera]  business,   177 
Telegraph  operators.     (See  "Employees,"  above.) 
Ticket  and  freight  agents.     (See  "  Employees"  above.) 
Tool  house,  breaking  Locks,  etc.,  of,   636 
Tracks,  switches,  etc. 

abandonment   of  spin-  or  switch,  180 
additional,   double,   etc. — 
bonds   for,    196 

in  case  of  consolidated  companies.  210 
capital  stock  increased  for,  208 
are  completed   when,  as  relates  to  statute  oi    limitations,    101 
connection  of,  with  track  of  other  companies,  when.  235 
duties  and  powers  of  commissioner  of  railroad-  a-  to,  21 
extension  of.      (See  "  Right  of  way,"  above.) 
fences  along  — - 

agreement  witli    owner   as   to.. — 

company  may  build  or  repair  when.  223 

expense  of.  collection  of.  from  owner.  223 
company  to  repair  when  damaged  by   fire,  216 
effect  of. —  as  to  company's  duty  to  fence,  223 

as  to  damage-  for  animals  injured,  219 
effect  of  repairs  made  by  company  upon,   217 
purchaser   of   land    without   notice.   2 lit 
runs   with    land.    when.   210 
claims  for  erecting,  garnishment  to  collect.  r> s .". 
company  must  construct  and  maintain.  216 
except   in  cate  of  agreements,  etc..   223 
except   where  compensation   has  been   made  for.   223 

record  of  same  must  be  made.  223 
failure  to  construct,  repair,  etc..  — 

degree  of  care  required  in  case  of.  21!' 
measure  of  damages:    penalty,  220 
remedy  for.  21  b\  220 
inclosures   of   adjoining   property   not    a    part   of.   217 
time    within    which    to    be    done,    216,    220 
duty  of  company  as  to. — 
at  common  law.  217 
cannot  be  shifted  to  contractor.  217 
extends  to  public  generally,  217 
how  constructed.   210 
in   towns,   etc.,   217 
lack  or  insufficiency  of.  — 

action    for   damages    from  —  pleadings    in.   216 

statute  of  limitations  as  to.   217 
liability  of  company  for.  210 

joint  where  roads  run  over  same  track.  217 
notice  of.  to  company,  210 
land  owner  may  construct  when.  210.   220.  -221 
expense  of.  recovery  of.  221 
notice  to  company.   210 
repair  of  —  company's  duty  as  to.  221 
land   owner  may  make  when.  221 

expense  of  collected  how.  221 
notice  of  need  of,  221 
sufficiency  of.  expert  testimony  a-  to.  218 
frogs,  guard-rails,  etc..  blocking  of.  2-10 

appliances  for.  commissioner  of  railroads  to  approve.  249 
during  construction.  250 
failure  as  to,  — 

action  for  damages  for.  — 

assumption  of  risk  not  to  be  pleaded.  240 


846  INDEX. 

(References  are  to  pages.) 

RAILROADS  —  Continued. 

contributory  negligence  may  be  pleaded,  249 
employees  may  maintain,  249 
presumption  that  frogs,  etc.,  are  blocked,  250 
proof  of  operation  by  company.  250 
penalty  for,   250 
practicability  of  blocking,  evidence  as  to,  250 
is  question  for  jury,  250 
gauge  of,  must  be  uniform,  235 

additional  rails  because  of  gauge  of  connecting  roads,  235 
adoption  of  gauge   of  connecting  roads,   235 
obstructing,   unlawful  meddling  with,   etc.,   636 

is  murder  when,  636 
power  to  construct,  maintain,  and  operate,   176 

safety  devices,  signals,  etc.,  at  crossings.      (See  Railroad  Crossings.) 
sidings,  etc. —  condemnation  of  property  for,  176,  183,  185. 

for  loading  and  unloading  —  duty  of  company  to  switch  cars  of  other  companies 

to,   236 
obstructing,  unlawfully  meddling  with,  etc.,  636 
power  to  construct,  maintain,  etc.,  176 
structures,  bridges,  wires,  etc.,  over.      (See  "Bridges,"  above,  and  "  Wires,"  below.) 
use  of, — 

by  other  railroads,  206 
charges    for,    206 

for  loading,   unloading,    switching,    etc.,   236 
demurrage  not  to  be  charged  when,  236 
in  common  and  in  one  direction,  in  streets  of  municipalities  when,  235 
liability  for  personal  injuries,  205 
telegraph  companies  cannot  appropriate,  318 
Trainmen.      (See  "Employees"  above.) 
Waiting  rooms.      (See  "Stations,''  above.) 
Warehouse  receipts.      (See  "Storage,  etc.,  receipts,"  above.) 
Water  pipes,  appropriation  of  way  for,   183 
Water  tanks  —  appropriation  of  property  for,  183 
construction  of  —  lien  for.  84 

stipulation  in  contract  as  to  priority  of  payments,  83 
power  to  construct,  maintain,   etc.,   176 
Wires  over  tracks,  — 

enforcement' of  provisions  as  to,  235,  258 
height  of,  234,  258 

injunction  against  improper  construction,  235 

plans  and  specifications  for,  filed  and  approved  by  commission  of  railroads,  235,  258 
power  of  commissioner  of  railroads  as  to,  234,  235,  258 
regulations  as  to  poles,  cross-arms,  etc..  258 
removal  when   provisions   as   to.   are   violated,  258 
Workshops.      ( See  "  Machine  shops,"  above. ) 

RAILROAD  COMPANIES.     (.See  Common  Carriers:   Common  Carrier  Companies:   Rail- 
roads.) 
Actions  against  — 

brought    where,    580 

effect    of  — -  entering  appearance   in    other   counties,   580 

nature  of  action  upon,  580 
in    case   of  —  foreign   companies,   580 
based  roads,    580 

violation  of  provisions  as  to  intoxicated  engineers,  etc.,  249 
in  other  counties,  when  co-defendant.  580 
when  before  justice  of  peace,  623 
Agents,   employees,  officers,   etc.,   of, — 

examination  of  by  board  of  appraisers  of  railroads.  66 
by  commissioner  of  railroads  and  telegraphs,   29 

state  board  of  appraisers   and   assessors,   79.   80 
penal  ties   a  ga  i  n  st  — 

for  disobeying  orders  of  commissioner  of  railroads,  22 

refusing  to  answer  question  of  commissioner  of  railroads,  29 
violating  provisions  —  as  to  bills  of  lading,   268 

as  to  taking  compensation,  etc.,  when  company  has  no  telegraph  or  tele- 
phone line.  240 
recovered  how,   30 
Agreements  of  —  copies  of  certain,  furnished  commissioner  of  railroads,  29 
with  other  roads,  204 


INDEX.  847 

(  R<  ferencei  arc  to  pages.) 

RAILROAD  COMPANIES  —  Continued. 

Aid  by,  to  construct  other  railroads,  2U| 

assenl  of  stockholders  to,  2ut; 
Apportionment  of  value  of  property  of,  for  taxation,  07 
Appropriation  of  property    by.     (See   Api-bopbiatio 
Articles  of  incorporation  of,   must  show   what,   17(i.  209,  210 
Assessments  against.     (See  Commissioned  of  Railroads.) 
Attachmenl    against.     (See  "Garnishment,"  below.) 
Bonds  of.     (Sec  Common  Cabrieb  Companies.) 
amount  of,  limitation  upon,   196,   200,  209 
in  case  of  consolidated  companies,  209 

second   mortgage  bonds  oi  certain   narrow  gauge  roads,   199 
issue  in  excess  of,  effect,  200 
before  delivery  by  company,  — 

are  not   subject—  to  execution,    199 

to  sale  by  proceedings  in  aid  of  execution,  199 
capita]  stock  of  insurance  companies  other  than  life  invested  in  when,  ill 
companies  may  issue,  196,  200,  209 

in  case  of  —  certain  narrow  gauge  roads,  199 
consolidated  companies,  209 
purchasers  at  judicial   -ale.  292 

re-organized  companies,  282 

convertible  into  stock,  may  be,  196,  198 

action  for  refusal  to  convert,  not  assignable,  198 

pleadings  in,  198 
fraudulent    purpose  of  issue,   remedy   for,    198 
holder  of,   not   entitled  to  stock  dividend   when.  -208 
in  case  of  consolidated  companies,  209 
proportion  of  bonds  to  stock  upon  conversion,   198 
right  to  conversion   follows  bonds,   198 
coupons  of,  negotiability  of.   197 
denominations  of,  200 

may  be  expressed  in  foreign  currency  when,  210 
exchange  of,  for  materials,  services,  etc.,  20 1 
interest  upon.  196,  197,  200,  209 
cumulative  when,   200 
in  case  of  —  consolidated  companies.  209 

purchasers  of  road  at  judicial  sale.  etc..  292 
re-organized  companies.  282 

second  mortgage  bonds  of  certain  narrow  gauge  roads.  199 
interpretation  and  construction  of.  197.  198 

limitations  and  restrictions  as  to  must   appear  on   face,  in  case  of  re-organized  com- 
panies. 283 
may  be   issued   to  acquire   bonds  of  other   companies    when.   210 
par  value  of.  200 

preferred  stock  may  he  converted  into.  209 
purposes  for  which  issued,  196,  200,  209,  210 
in  case  of  consolidated   companies.   209 

purchasers  of  road   at  judicial    sale.   etc..   292 
second   mortgage  bonds   of  certain   narrow  gauge  roads,    199 
redemption  of  —  bond-  issued   for.   when.   19(5.  209 

capital  stock  may  be  increased  for,  208 
sale,  mortgage,  pledge,  etc..  of.  — 
at  discount,  effect  of.  201 

in  case  of  foreign  companies.  201 
to  directors,  void  when.  211 
in  case  of  consolidated  companies.  209 

second  mortgage  bonds  of  certain  narrow  gauge  roads.   199 
nature  of  transaction,  -ale  or  loan,  effect  of  guaranty.  201 
time,  place,  and  rate  of,  201.  210 
usury    in.    201 
second  mortgage,  certain  narrow-gauge  roads  may  issue.  100 
secured  by  mortgage  or  otherwise.      (See  "  Mortgage,''  etc.,  below.) 
upon  consolidation,  effect  of  stipulation   to  protect.  273 
vote  of  stockholders  as  to.   196 

in  case  of  second  mortgage  bonds   of  certain  narrow  gauge  road-.   109 
Bond  holders  —  mav  vote  for  directors  when.  203 

may  vote  in  stockholders'  meetings  of  reorganized  companies,  when.   282 
liability   of.    in   such    case.   2S2 
Books  and  papers  of.  examination,  etc..  of.  by  state  board  of  appraisers  and  a--  -- 


3i3  INDEX. 

(References   are  to  pa^cs.) 

RAILROAD  COMPANIES  —  Continued. 

Branch   roads  of  —  appropriation   of   property    for.    182 
bonds   for    constructing.    190 

for   leasing,   purchasing   or   equipping,   209 
capital   stock   may   be   increased   for,   208 
constructed  where:  location  of,  182,  183 
power  to  construct,  1S2 

does  not  include  power  to  purchase,   183 
stockholders  may  authorize,   182 
certificate  as  to,  182 
meeting,   for;  vote  necessary,  182 
Capital   stock  of.      (See  Common  Carrier  Companies.) 
amount  of  —  certificate  of  increase  must  show,  210 

consolidation  agreements   must  give,  of  new  company,   271 

omission  and  cure  of,  274 
of  re-organized  company,  meeting  for  re-organization  determines,  etc.,  281,  282 
bonds  may  be  converted  into,    196,    198 

may  be  issued  to  acquire,  of  other  companies   when.  210 
certificates  of.      (See  "Shares  of"  below.) 
common  stock  of, — 

articles   may   provide   for,   210 

amount,  par  value,  and  voting  power  to  be  given,  210 
consolidation  agreement  may   provide   for.   271 
dividends  on,  paid  from   what,  209 
increase  may  be  in,  209 

purchasers   of   road   at  judicial   sale,   may   issue   when,   292 
conversion   of,  into   stock   of   consolidated    company,   271 
increase  of,  208 

certificate   of,   210 

may  be  common  or  preferred.  209 

meeting  of  stockholders  for,  208 

directors'  call:   must  state  what,  208 
held  where:    notice  of,  208 
vote   necessary    for,   208 

certificate  of  increase  must  show,  210 
purposes  of,  208 
sale  of,  when  and  where.  209 
may  be  issued  for  purchase  price  of  roads,  etc..  when.   292 
preferred  stock, — 

articles  may  provide  for,  210 

amount,  classes,  par  value,  voting  power  to  be  given,  210 
consolidation   agreements   may   provide   for.   271 

in  case  df   consolidated  companies.  270 
dividends  on,  209 
increase  of,  stock  may  be,  209 
may  be  converted   into   bonds,   209 
privilege  to  redeem  or  cancel   must  be  reserved.  209 
purchasers  of  road  at  judicial  sale  may  issue,  292 
re-organized  company  may  issue.   2S2 
retirement  of,   of  constituent   companies,   270 
sale   of  — below   par   to   directors   void   when,   211 

time,  place,   and  tenns  of,  209 
shares  of: — certificates  of,  of  reorganized  companies  must  show  limitations  and  re- 
strictions on  face,  283 
number    of, — 

consolidation  agreements  must  give,    of   new   company.   271 

omission,    effect    and    cure    of.    273 
of  re-organized  company,   determined   upon  re-organization.   281 
upon  which  all  installments  are  paid,  certificate  of  increase  must  show,  210 
par    value    of,    articles    must    give.    210 

consolidation   agreements  must   give  of   new  company.   271 
subscriptions  to, — 

conditional,  become  absolute,   when,  203 
conditioned   not  to  be  applied   upon   debts.   203 
exempt    from   execution.    203 
property   purchased    with,    exempt    when,    203 
conditioned  on   completion  of  whole  or  part  of  road  when.   203 
stock   certificates   on.   may  he   issued   when.   203 
subscribers    to. —  become    stockholders   when,    203.    287 
right  of,  to  vote,  203 


INDEX.  »■*■» 

(Refei  igei.) 

RA1  LROAD  COMPANIES  —  ('out inued. 

effect  of  cliange  of  route  upon,   L30,   178,   L79,  181 

of   consolidation    upon,    269 
payable  in  real  estate,    188 

power  in  sell,  uot  implied  from  power  "•  Bell  road,   I T « "» .  205,  287 
railroad  companies  maj    make  when,  204 
release  of.  by  sale  of  road  when,  205,  287 
transfer  of,   books  for,  may  lie  kept  in  other  states.  2n^ 
Capital  st.i.k  of  other  companies,  power  t<>  buy,  hold,    *c.  — 
in  mining  companies,   L  T  *  J ,  2ot 

Ohio  River  bridge  companies,  347 
other  railroad  companies,  204 

in  case  of  consolidated  companies,  J 7 < ". 
union  depot  companies,  when.  313 
Charter  of.     (See  Articles  ok   Incorporation.     Bee  also  "  Franahiaea"  below.) 
cannot  be  sold  in   absence  of   statute,   290 

forfeiture  of,  for  failure  to  maintain  telegraph   and    telephone    line,   240 
Citizenship   of.    extending  lines    into   another    state,    1  s:i 
Conditional  sales  of  personal   property  to.     (See   Railroads.) 
Consolidation  of, — 

"  adjoining  state,"  meaning  of,  in   law  as  to,  ^70 
agreement  for,  27  i 

adoption  of,  to  be  certified  upon.  271 
defects  in,  cured  how.  273,  274 

certificates  supplying,  filed  with  secretary  of  state.  273,  274 
effect   of, —  as   evidence,    274,    27.3,    27!t 

when   perfected.  273 
filed  with  secretary  of  state.  271 
must  prescribe  what.  270,  271 

original  need  not  be  produced  or  proved,  when,  279 
partly  illegal,  effect  of,  273 
preliminary,  effect  and  force  of^   271 
prior  agreements  confirmed,  271. 

stipulations  in,  for  veto  power  to  preferred   stock.  272 
submitted  to   stockholders   of  each   company,    2"t  1 
apportionment  of  capital   stock  upon,  etc.,   272.   273 
as   to  constituent  companies, — 

bonds  of.  stipulation  to  protect,  effect  of.  273 

charters  of,  need  not  be  proved  in  action  against  new  company,  279 

continued  in  existence  how  far,  275 

debts  and  torts  of,  275,  270 

existence  of,  ceases   when,   271 

bonds  of  new    company  to  pay,  209 
liabilities  of,   upon.   275 
powers   of.    pending  consolidation.   209 
property,   franchises,   etc.,   of.  upon.   275 

not  held  in  trust,  276 
preferred  stock   of,    agreement  may  provide  for  retirement  of,   270 
stockholders  of,  rights  of  dissenting,  27^ 
arbitration  as  to  value  of  stock,  278 
appointment  of  arbitrators,  278 

notice    of   application    for.    278 
refusal  to  arbitrate  or  accept   award,  27s 
entitled  to  what   valuation  for  stock,  278 
in    case   of  —  foreign    companies,    278 

holders   of  preferred  stock,   278 
to   enforce    operation   of   roads.   20!) 
when  made  by  exchange  of  stock,  etc..  277 
as  to  new  company. — 
directors   of, — 

election   of  —  held  where,   277 

injunction    against    stockholders    participating    in.    275 
stockholders'  meeting  for  consolidation  determine  as  to,  275 
unauthorized  until  agreement    tiled.   275 
number    and    residence   of,    agreement    mn-t    state,    271 
residence  of,   277 
execution  against,  for  debt  of  old  company.  276 
general    laws  govern.  260 
general   and   principal   office   of,  277 
liabilities  and  duties  of,  275 


850  INDEX. 

(References   are   to   pages.) 

RAILROAD  COMPANIES  —  Continued. 

for  claims  of  dissenting  stockholders,  276 
debts   of   constituent  companies,    270 
equitable  lien  of  creditors  for,   275 
statute  of  limitation  as  to,  270 
torts  of  constituent  companies,  270 
powers  of,  273,  275,  270,  277 

to   dispose  of  bonds,   and  stocks  acquired    by,  276 
to  exchange  stock  for  stock  of  other  companies.  276 
to    issue  bonds   to   pay    obligations   of   constituent    companies,    209 
to  lease  or  make  operating  contracts.   276 
to  maintain  and  operate  railroads  purchased,  276 
preferred  stock,  agreement  may  provide  for,  270 
records  of,  kept  where,   277 
status  of  company,  upon,  269 
stockholders'   liability  in.  269,   270 
suits  against,   277 

proof  of  certain  facts  dispensed  with,  279 
taxation  of,  277 
by   purchase  of   capital   stock,   276 

certificate  of,  tiled  with  secretary  of  state,  277 
creditors,  rights  of,  upon,  277 
fees  upon,   277 

stock  of  new  company  issued  for,  276 
stockholders,    rights   of,   not   surrendering   stock,    277 
companies  in  state  may  enter  into,  when,  268,  276 
competing   companies   cannot,    269 
in  case  of  consolidated  companies,  270 
what  companies  are   "  connected,"   268,   269 
with   foreign   companies,   269 

liens  held  to  be  continuous,  when,  270 
de  facto  consolidation,  when.  270 
denial  of,   company  estopped  from,  when,   270 
effect  of,  273,  275 

upon   removal  of  causes.  270 

stockholders'  liability,   269,  270 
stock   subscriptions,  269,  276 
unpaid  dissenting  stockholders,  273 
laws  as  to,  apply  to, — 

automatic   package   carrier   companies,   323 
electric  light,  etc.,  companies,  43,  40,  323 
gas  companies,  43,  40 
inclined  plane  railroad  companies,  53 
natural  gas  companies,  43,  40 
street,   electric,   etc.,    railroad   companies.   53.   308 
manufacturing,  mining,   and  refining   companies.   568 
Ohio  River  bridge  companies,  347 

safe  deposit  and  trust  companies  with  savings  and  loan  associations,  when,  510 
ship  canal  companies,  312 
telegraph  and  telephone  companies,   323 
turnpike  and  plank  road  companies,  339 
laws  of  state  under  which  made,  need  not  be  proved,  when,  279 
power  of  state  to   impose  conditions,  269 
takes  effect,  when,  273,  275 
Contracts, —  copies  of  certain  to  be  furnished  commissioner  of  railroads,  29 

for  use  of  Ohio  River  bridge  by,  authorized,  347 
Corporate  franchises  of.      (See  "Franchise"  below.) 
Creditors  of, — 

amount  due,  names  of;  petition  of  receiver  for  sale  of  road  must  give,  290 
rights  of  —  in  case  of  sale  of  road   by  receiver,  290,  291 
to    vote    for    directors,    202 
Debts  of  —  limitation  upon  amount  of,  200 

re-adjustment   of.   may  be  made  when,  285 

agreement   of   mortgagees,   creditors,   stockholders    as   to.    285 
filed   with  secretary  of  state.  285 

may  be  between  each   interest  and  the  company,   286 
notice  of,  285 

parties  in   interest  may  sign,  when.  285 
rights  of  parties  not  signing,  286 

statute  of  limitations  as  to,   286 


INDEX.  Wl 

(References  are  to  p 

RAILROAD  COMPANIES      Continued, 
unfunded, — 

bonds    for    paying,   etc.,    196,    209 

in  vase  of  certain  uarrow  gauge  roads,   199 
capital  stock  may  be  increased   to  pay,  208 
Definition  of,   includes   what,   77 
Directors  of, — 

classification   of, —  meeting    for,   202,    20.$ 
vote  necessary,  202,  203 

qualifications   of    voter-.    203 

when  bondholders  or  creditors  bave  righl  to  vote,  203 
duties  and  powers  of  — 

as  to  appointment  or  election  of  treasurer,  vice-president,  etc.,  202 
certificate   of  — change    of    counties    in    which    road    located,    18J 
construction   of   branch    roads,    182 
location  of  termini  of  road  in  county  on  Btate  line,   178 
change  of   route,   etc.,    178,    L80,    181 
classification   of  directors,   202 
consolidation   of  companies,    -71 
extension  of  lines,  change  of  termini,  etc., 
incorporation,  of  union*  depot   companies,  313 
increase   of    capital    stock,    208 

sale,   mortgage,  etc.,   of  bonds,   note-,   etc.,   201,   '-Ml 
election  of  —  upon  consolidation.  275,  277 
upon  re-organization,  281 
when    classified,    202.   203 
liability  of,  for  negligence,  mismanagement,  etc.,   211 

exonerated   from,  how,    211 
names   of.    statement  of  required,   20 
number  of,  202 

consolidation    agreement    must    give,    2,1 

omission   of,   effect  and   cure.   271.   273,  2,4 
increase  or  decrease  of:  vote  necessary  for,  202 
of  re-organized   companies,   281 
protest  of.  against  acts  of  board,  211 
effect  of..  211 

publication  and  record   of,   211 
purchase  by,  of  stocks,  bonds,  etc.,  below   par, 
from   third   persons.   211 
is    void    when.    211 

mortgage   securing   such   bonds   void,   when,   -_ii 
return  of  amount   paid,   when.  211 
residence,   post-office    address,   etc.,— 

in  case  of  consolidated   companies,   2n 

consolidation    agreement   must   give.    271 
omissions  of.   effect   and   cure.   271.   273 
in  case  of  re-organized  companies,  281 
statement   as   to   required,   21) 
term  of  office  of  — of  re-organized  companies.  281 

when    classified,    202,    203 
vacancies  in  board,  how   filled,   202 

DiSSca^'o?-fa^W  to  maintain  telegraph   or   telephone    lines.  240 
companies    may    dissolve,    when.    242 

meeting    for:    notice   of,    vote    required,    242 

^tn'dholders  of  re-organized  companies  having  righl    to  vote   ™t  entitled  to,   282 

stock  dividends,    holder   of    convertible  bonds  not  entitled   to.   when.   208 
Donations,  etc..  to.  may  accept,   177 
Duties   of  — attorney-general    may    enforce   when,    194 

upon  purchase   of  connecting  roads,   204 
Entertainments,   power   to    aid,    177 
Excise  tax  on:    amount,  levying  of.   collection,  etc.    of,    ,8,   80 

failure  to  pay,  SO  .. 

exempted  from  provisions  of      Willis   Law,       u 

tangible  property  not  exempt  from  taxation,  80 
Execution    against, — 

bonds  of,  undelivered,   arc  not    suhjeci    In.    199 

effect  on.  of  mortgage  upon  persona    property    of,  199 

injunction  against   sale  of  portion  of  property  upon.   199 


852  INDEX. 

(References   are   to   pages.) 

RAILROAD  COMPANIES  —  Continued. 

refusal  of  sheriff   to  levy  on;   damages,   199 
remedy  of  judgment  creditor,  199 
Expenses  of  oifice  of  commissioner  of  railroads  borne  by,  26 

assessment  and  payment  of,   2G 
Forbidden  to   transact   business    with    express,    insurance,   telegraph    and    telephone   com- 
panies,  when,   83 
Foreign  companies, — 

do  not  become,  domestic  companies  by  leasing  road,  285 

may  exercise   powers,   etc.,   in  state,  when,   284 

may  sue  and  be  sued  same  as  domestic,  when,  285 

mortgages,   etc.,   upon  property  of,  operate  same  as  domestic,  285 

part  of  road  in  state  subject  tb  regulations  of  law,  285 

taxation  of,  285 
power   to  appropriate   property,   285 
provisions   as  to   re-organization,   apply  to,  285 
section    148c   does   not   apply   to,    11 
Franchises  of, — 

corporate,  purchaser  of  railroad,   may  purchase   when,   289 
consent  of  stockholders  to.  289 
conveyance  of,  290 

effect  of  provisions  as  to  is  a  new  charter,   290 
stockholders'  liability,  290 
which  may  be  amended  or  repealed,  290 
rights    of    stockholder    of   old   company    in   new,    290 
forfeiture  of.    for   failure   to  maintain   principal   office,   211 

mortgage  or  pledge  of,   to  secure  bonds,  209  . 

in  case  of  consolidated  companies,  210 
re-organized    companies,    283 
sale  of,  289  . 

at  judicial  sale,  290,  291 
transfer   of,   upon   re-organization,   282 
upon    consolidation,   275 
Garnishment  against.      (See  Attachment.) 
to  enforce  execution,  585 
affidavit  for,  585 
effect  of,    585 
notice  to  garnishee,  585 
General  agent  of,  storage  or  warehouse  receipts  countersigned  by,  267 
Income  of" — pledge  of,  to  secure  bonds,  notes,  etc.,  200,  209 
in  case  of  consolidated  companies,  210 
includes  what ;  diversion  of.  200 
Incorporation  of  purchasers  at  judicial  sale,  291 

transcript   of  decree  of   confirmation   filed   with   secretary   of  state,   291 
In  Viands  of  receivers.      (See  "'Receiver  of"  below.) 
Judgment   against,   in  state,  courts,  lien  of,  includes  what,    198 
Liability  of, — 

for  failure  —  of  engineer  to  comply  with  provisions  as  to  crossings  over  railroads.  227 
to  erect,  etc.,   inter-locking  fixtures  ordered.   25 
sign   boards    at  crossings,   216 
safety   devices,   etc.,   at   highway   crossings,   22,   23 

citfes  of  1st  class,  2nd  class,  1st,  2nd.  3rd  and  4th  grades,  23 
in  cities  of  2nd  class  3rd  grade   (b).  23 
to  make  and  publish  rules  as  to  crossings  over  railroads,  226 

repairs   ordered   by  commissioner   of  railroads,   21 
to  ring  bells   or  blow  whistle   at    crossings,   227 
to   stop    passenger   trains  at   certain   stations.   213 
for   fires.      (See   also   "Right   of  way"   and   "  Rolling   stock,"   under    Railroads.) 
action    to   enforce, —  appeal    or    error    in,    247 
attorneys'  fees  as  part  of  costs,  247 
brought   where,   245 
evidence  in,   245,  246 
identity  of  defendant,  proof  of,  245 
justice    of  peace  has   no  jurisdiction,   246 
measure  of,  246 
negligence  —  inferred  from  fire  caused  by  sparks.  245 

rule    as   to.   245,    246 
pleadings   in.   246 
when   property  wras   insured,   246 
application  of  provisions  as  to,  to  prior  existing  companies,  246 


INDIA. 

(Refereno 

RAILROAD  COMPANIES      Continued. 

caused  by  operation  of  rood,  originating  on  its  lands,  245 
caused  by  sparks  from  engines,  originating  on  adjacent   lands,  246 
for  misconduct  of  passenger  conductor,  provi  ions  .1-  to  arrest   and  ejectman  oi  pas* 

senger   no1    to  « - 1 1*  ct,   20  1 
for  non-compliance  with   provisions  as  to  unclaimed    freight,  el 
for  transacting  business  for  or  with  express,  in  legraph  or  telephone  com- 

panies while  their  taxes  are  unpaid, 
for  violating  provisions  as  to  —  construction  of  bridge  ovei    street,  2Js 
employmeni    of   intoxicated   engineers,  etc.,   249 
hours  of  service  of  certain  employees,   240 
qualifications  of  conductors,  engineers,   flagmen,   etc.,  248 
report    to,  25,  28,  30,  79 
Managing  agent,  chief  officer  in  state.     (See  "  Officers"  below.) 

mles  a.-  to  crossings  over  railroads  made  and  published   by,  226 
summons  may  be  served   upon,    when,  583 
who  is,  or  is  not,  582,  583 
Mortgages,  deeds  of  trust,  etc.,  to  secure  bonds,  etc.,    196,   200,   209 

claim  for  money  advanced  to  pay  interest,  taxes,  etc..  uo1  superior  10.   197 
conditions  in,  effect  upon  bonds,   197 

effect  of  —  of  sale  of  bonds,  etc..   to   directors   below   par.  on.   -Jll 
foreclosure   of,    action    for, — 
by  bondholders.,    198,    100 

holders  of  non-negotiable   coupon-   cannot    maintain,    199 
in   federal  courts,    198 

effect  of  prior  judgment  in  state  ,,,1111-.    198 
sale  under  —  court  may    ii\    minimum    price,   285 
may  be  without  appraisement,  285 
of  part  of  road   to  pay    interest,    198 
form  of,  may  be  what,  200 
in   case  of  consolidated   companies.   209,    210 
foreign  companies    in   this    state..   285 
purchasers  at  judicial  sale,   etc.,  202 
re-organized    companies,    283 

second  mortgage   bonds  of  certain  narrow  gauge  read-,    199 
lease  subsequent  to,  effect  of,   10G,    107 
iien  of, — 

effect  of  change  of    location  or  termini  on,   180 

extension  of   lines   upon,  208 
from  what  date,  200 
in  case  of  reorganized  companies. — 

postponed  to  liens  for  labor,  damages.  BUpplies,  etc..   l's:; 
assignment   of  claims,    effect   of.   2S3 
burden  of  proof  to  establish,  on  claimant.   283 
necessary   parties   to  original    judgment,   283 
priority    of   other    liens,    84,   So,    200 
power  of  mortgagee  to  take  possession.    100 
record   of.   200 

rolling  stock,  extra  territorial  force  of  mortgage  on.    197 
vendor   retaining  legal   title,  notice  to   mortgagees,    197 
vote    of    stockholders   necessary    to.    100.    200 

in   ease   of  certain   narrow   gauge   roads.    ]00 
consolidated  companies.   209 
what  included  in, — 

after  acquired  property,   when.    10G,    107 
corporate  franchises   not,   196 
personal    property   may   be,    200 
leal  estate  may  be,  200 

not  used  in  operating  road  not   included,   when.  196 
scrap   or  cast  off  articles   are.  when.    107 
Name  of  —  of  consolidated  company,  agreement  must  give,  271 

of  re-organized  company. —  certificate  1  f  re-organization   must  give,  281 

meeting   for   re-organization    determines.    281 
purchasers  at  judicial   sale.  etc..  may  assume  a    name.   291,    292 
Notice  to  —  as  to  dangerous  condition-,  repairs,  etc.,  21 
as  to  safety  devices  at  highway   crossings,    21 

in  cities  of  2nd  class,  3rd  grade   (b),  23 
Officers  of. — 

acts    of.   when   ineligible   to    position,    are   null    and    void.    212 
consolidation  agreements  must  give,  of  new  company,  271 


S54  INDEX. 

(References   are   to   pages.) 

RAILROAD  COMPANIES  —  Continued. 

election   of,    upon   consolidation,  275 

examination  of, —  by  state   board  of  appraisers  and  assessors,   79 

by  board  of   appraisers  of   railroads.   60 
liability    of,    for    disobeying   orders   of    commissioner    of    railroads,    22 
name,  residence,  etc.,  of, — 

consolidation  agreements  to   give,  of  new  company,  271 

omission,   ell'ect  and  cure  of,   271,  273,  274 
statement  of,  required,   29 
number    of,    of    consolidated    companies, — 
agreements  must  give,  271 

omission  of,  effect  and   cure,   271,  273,  274 
reports  —  made,    filed,   etc.,   by,   when,   26,   66,    77 
who  not  eligible  to  election  or   appointment  as,  212 
penalty  for  acting  as,  212 
Offices  of,  power  to  construct,  maintain,  etc.,  176 
i'enaities    against.      (See    "Liabilities''    above.) 

collected  by  civil  action  or  indictment,  when,  30 

moneys   collected   for   violations   of   railroad    laws    paid   into   state   treasury.    27 
Personal  property,  includes  what,  for  taxation,  (iC> 
Police  powers,  are  subject  to,  22.3 
Powers  of  (see  Common  Carrier  Companies),  176 
exercised  outside  of  state,  when,  284 
foreign  companies  may  exercise  in  state,  when,  284 
in  adjoining'  states,   182 

in  case  of  purchasers  at  judicial  sales,  etc.,   291,   292 
to  appropriate  property,  183 
to   borrow   money,   20U,   209 
to   do  toll   bridge  business,    196 
to  purchase  or  sell  road.      (See  Railroads.) 
upon  purchase   of  connecting   roads,   204 
President.      (See  "Officers"  above.) 

execution  of  deeds,  etc.,  to  real  estate,   186 

in  case  of  roadbed  and  right  of  way,  287 
is  ex    officio  director  of  union  depot  companies,  when,  313 
office  of,  to  be  where,  211 

service  of  summons  upon,  in  actions  before  justice,  623 
storage   or   warehouse  receipts   signed   by,    267 
Principal  office  of. — 
change    of,    211 

in  case  of  consolidated  companies,  277 

mining  companies  owning  railroad,   211 
notice  of,  211,  277 
establishment  and  location  of,  211 

in  case  of  consolidated  companies,  277 
notice  of,  211,  277 
failure  to  maintain,  forfeiture  of  franchise  for,  211 
offices  of  president,   secretary  and  treasurer  kept  at.  211 
records   of  proceedings  of  company   to   be   kept   at,   211 
Promissory  notes  of, — 

amount   and   face  value   of:    limitation   on,    200 
interest  on,  200 

may  be   issued  for  borrowed  money,  200 
sale  of,  to  directors  below  par  void,  211 
secured  how,  200 
Property  of  —  mortgage  of.      (See  "Mortgage"  above.) 
permitting,  etc.,  animals  to  trespass  upon,  638 
subject  to   appropriation   by  other   companies,    186 

to  police   regulations,    1S6,   225 
unlawful  meddling  with,  removing,  injuring,  etc.,  630 
upon  consolidation,  275 
Railroads   of.      (See   Railroads.) 
Real  estate  of.      (See  Real  Estate.) 
conveyances   of, — 

corporate   seal,   necessity,  etc.,   186 
covenants  of   title,   construed,    188 
construction  of.  for  right  of  way,   188 
execution  of,   by  president,    186,    L87 

in  case  of  sale  of  roadbed,  right  of  way,  etc.,  287 
held  in  escrow,   188 


LNDEX. 

(References  an 

RAILROAD  COMPANIES  — Continued. 

must  contain  what,  when  «>i  roadbed,  right  of  way,  etc.,  281 
by  purchasers  at  judicial  Bale,  291,  292 

copy   filed    with    Becretarj    oi    state:    etfectj   202 
record  of,  292 
by  receiver,  at  judicial  Bale,  -HI 
mortgages  of.     (See   "  Moi  tgugt  "   above.) 
powers  as  to,   180 

to    acquin — by    dedication,     187 
by  purchase  or  gift,    lt>0 

conveyances   by   gift,    void   when,    186,    187 

in  case  of  companj    Belling,  etc.,  interest   in   road  held   in  common 
limitations  upon,   1<S,> 
notice  to  subsequent    purchasers,   is? 
unauthorized    purchase,    effect  of,    186 
to  bold,  quo   warranto   lies  to  test,   when,  629 

to  purchase,  etc.,  for  altering  or  abolishing   highway  crossings,  230 
for  materials,   1 77.  1st; 
street  assessments   upon,    188 
subscriptions    to    stock    payable    in,    188 
taxed  as  persona]   property,  when,  66 
upon  consolidation,  -7"> 
Receivers   of.      (See  RECEIVERS.) 

actions   against, — brought    where,   'is1.) 
service  of  process  in,  289,   578,   579 
may    be    upon   whom,   289,   578,   579 
must    be  made  where,   289,   578,    579 
actions  by, —  . 

for  sale  of  road,  franchise,  etc.,  when  company    insolvent,   -••<» 
is  proper   party   to   restrain   ditch    proceedings    when.    288 
collection  of   taxes   from,  289 
foreign,  right  of,  to  sue  in  Ohio,  289 
funds  in  hands  of.. — 

application  of:   order  of  priority,  289 

as  to  state  taxes,  289 
deposited   where,   28!) 

judgments   against   receiver,    lien   against,    289 
is  not  agent  of  company.   289 
judgment  against,  satisfied  how,  289 

judgment  against  company  while  in  hands  of,  effect  of,  288 
liability  of.— for  negligence,  289 

for    non-compliance    with    orders    of    board    ol    appraisers,    Ob 
on  judgment  is  in  trust  capacity,   not    individually,   289 
mandamus   will  not  lie  against,  when,  590 
may  sue  and  be  sued   without   leave  of  court,   when,  288 
effect,   as    to    (J.   S.   courts..   288 

levy   and    sale   without   leave   of   court    not  authorized,    Z88 
must  be  resident  of  state,   128,  288 
non-resident,  appointment  and  powers  of,  of,  289 
right   of.    to    abrogate    lease    or    contract.    205 
sale  of  road  by,  traffic  agreement    not  included.  205 
Records  of  proceedings  of. — 
kept  where,  211 

in   case   of   consolidated   companies,   27 i 
stockholders   may    inspect,    211 
Regulations  of. —  companies  may  make  what.  -_.».5 

°  railroad  police  to  enforce.   293 
Re-organization    of   under    proceedings    to    sell,    etc.— 
agreement   for,— may  be  made  when,  280 

consent  of  creditors  and  stockholders  to,  280 

when   bonds  or   stock,  held   in   fiduciary  capacity,   who   consents,   286 
copy  must  be  filed   in  court,   281 

debts   for    repairs  and  running  expenses  to  be  paid   how.  _m 
bondholders  of  new   company  may  vote.  when.   282 
certificate  as  to  — effect  of  as  evidence.  281 
filed    with    secretary    of    state,    281 
must   show   what,   2S1 
judgment    to    be    rendered.    280 
lien  of;   upon  what.  281 
sale  of  property,  etc..  to  trustees  under.  281 


856  INDEX. 

(References   are   to   pages.) 

RAILROAD  COMPANIES  —  Continued. 

liability    of   new  company   for  debt*,  etc.,  of  old,   2S2 
meeting  for.   alter  sale  to   trustees,  281 
notice  of,  2b  1 

trustees  act    as  judges  of  election   at,   281 
votes  and  voters  at,  281 
what  must  be  done  at,  281 
powers  of  new   company,   282 

to   adjust,   etc.,   claims  against  old   company,   282 
to   issue   bonds   and   secure    same,   etc.,   282 
to  issue  capital  stock.  282 
property   transferred   to   new  company   by  trustees,  282 

what    held   in   trust,   282 
provisions  as  to.  apply  to  what  companies,  285 
rights   of  creditors   and    stockholders  upon,   281,   282 
Reports,  statements,  etc., — 

to  board  of  appraisers  of  railroads, — 
failure    to    make:     penalty,     66 

requirements   as  to :    statement  of  property,   etc.,    66 
to  commissioner  of  railroads, — 

amendment,   corrections,   etc.,  of,  26,   28 

blank   forms   for,   commissioner   to    furnish,    25.    28.    255 

excuse  for  not  conforming  to,  29 
duties  and  powers  of  officers  as  to,  25.  26.  255,  258 
failure  to  make:   penalties,  26,  28,  30,  257 
must  show  what  as  to, — 

assets,   liabilities,    capital   stock,   etc.,   25,   26.   27,   28 
accidents,  casualties,  etc.,  28,  29 
automatic   couplers,   air  brakes,   etc..   255.   257 
officers,  directors  —  name,  address,  etc.,  29 
road,    business,    operation,    etc.,   27.    28 
stockholders,    26 
to  state  auditor, — 

blanks  for,  auditor  prepares  and  furnishes,   78 
duties  and  powers  of  officers,  as  to,  77 
failure  or  refusal  to  make,  79 
must  show  what  as  to, — 

character   and   nature  of  company,   77 
gross  receipts,  78 
name   of  company .   77 
officers  —  name,  address,   etc..   77 
organization  of,   laws  and  state  of,  77 
principal    office,    location    of,    77 
Reserve  or  contingent  fund,  to  be  valued  for  taxation,  66 
Secretary  of.      (See  "Officers"  above.) 

office  of,  to  be  where,   211 
Securities  of.      (See  "Bonds,"  "Promissory  notes"  above.) 
Service  of  process  on.      (See  also  Service  of  Process),  582 
as   co-defendant,   580 
foreign    company  —  provisions    cumulative,    582.    583 

on  traveling  solicitor  not  good,  582,  583 
may   be  —  in   other   counties   when,   580 
upon  whom,  5S2,   583 

agent,  officer,  etc.,  of  lessee  and   lessor  companies,  when,  207,  582 
in  actions  before  justice  of  peace,  623 

section  6477  does  not  aoply  to,  624 
return  of — in   action  befoie  justice   of  peace.   584 

when    made   on    ticket    agent,    582 
when   in  hands   of   receiver,    578,   579.   583 
where  unlinished  roadbed  is  to  be  appropriated,  617 
Sleeping  car   contracts  of,   177 
Stockholders  of, — 

commissioners  of  railroads  cannot  be,  21 
consent  of  —  to  change  or  abandonment  of  route,   178 
to  lease  of  road.   206 
form   of.  206 

validity    of,    when   obtained    outside    of   meeting,    206 
waiver   of,  what  held  as,   206 
dissenting. — 

effect   of    consolidation,    upon   claims   of,    276 


iNDK.V 

( Refen  a<  i 

RAILROAD  COMPANIES  —  Continued. 

upon  unpaid  stock  subscriptions  of,  j;;! 
to  lease,  purchase,  etc.,  <>t    road,   right*   of,  208 
compensation    for    his    stock,   206 
arbitral  ion  as  to  value,  206,  -"7 
refusal  to  arbitrate,  etc.,  206,  207 
notiee   of   refusal    to   consent,   206 
liability  of,   upon  consolidation   with   foreign   company,  270 
may  inspect  records,  etc.,  -II 
meetings  of, — 

regular  —  directors   classified   at,  202,  203 

number  of  directors  changed  at:    rote  necessary,  202 
to  authorize  aiding,  leasing  <>r  purchase  1  i  roadB,  206 

notice  of:  vote  necessary  at,  206 
to  authorize  consolidation,  -71 

notice  of,  and  waiver:   vote  neceBsary,      bj   ballot,  -71 
to    authorize    construction    of   branch    roads,    182 

vote    necessary.     1S2 
to  authorize  extension   or  change  of  termini,  208 

notice  of:    vote  necessary,   208 
to  authorize  sale  of  roadbed,  righl   of  way,  etc.  287 

notice   of:    vote   necessary,    287 
to    classify    directors.    202,    203 

notice   of:    vote    necessary.    202,    203 
to  dissolve  company,   242 

notice   of:    vote    necessary,    242 
to  elect  directors   and  officers  of  consolidated   company,   27.~> 

notice   of.   and    waiver.   277> 
to  increase  capital    stock,  208 

notice  of:   vote  necessary,  208 
to  issue   bonds,   mortgage   property,  etc..    196,   209 
in  case  of  certain   narrow  gauge  roads.    199 

consolidated    companies,    209 
notice  of:  vote  necessary,   inc.   199,  209 
name,  address  of.  and  shares  owned,  statements  showing,  26 
preferred,  veto  power  given  to,  by  consolidation  agreement.  272 
right   of,  to  enforce  operation  of  road   upon  consolidation,   269 
vote  of,  what  necessary.      (Sec  "Meetings  >,("  above.) 

for  rescission  of   lease.  204 
voting   agreement   or    pool.    205 
Street  railroad  operated  by,  extension  of.  cannot  he  by  condemnation,  52 

cannot  be  under  provisions  a-  to  street  railways,  .".2 
Superintendent  of.      1  Sec  "Officers"  above.) 

rules   as   to  crossings   over   railroads   made.   etc.    by,   226 

penalty   for  failure  or  neglect.  226 
summons   in    action   against,   receiver   served    on.    when.    289 
Surplus  or  undivided   profit,  to  be   valued    for   taxation,   G6 
Taxation   cf.      (See   State   Board  of   Appraisers    and     Assessors:    State     Board    of 

Equalization  for  Railroad:   Taxation.) 
Traffic  agreements  between,   204 
injunction  to   enforce.  205 
not  included   in  sale  by  receiver.   205 
Treasurer  of.      (See  "Officers"   above.) 
appointment   of.  by  directors.    202 
office  of,  kept,  where,  211 
Vice-president  of  —  directors  may  elect   from   their   number,  202 
duties  and    powers   of.   202 

storage  or   warehouse  receipt-   signed  by,   when.   207 
Violation   of   laws   by.      (Sec   "Liabilities"   and    "Penalties"   above.) 
duties  of  commissioner  of  railroads  as  to.   2.". 

RAILROAD   CROSSINGS. 

At  public  highways,   etc.. — 
above  or  below  grade, — 

by  bridge,  viaduct,   etc..  over  railway. — 

control  of  streets,   etc..   not    surrendered.    104 
damages  to   abutting  owners.   231,   234,   2:>."> 
duty  of  company  to  maintain,  when.  195 
duty   to   employees   a-   to.    235 
enforcement  of  provisions   as   to.   235 
height  of,  above  tracks,  233,  234,  258 


858  INDEX. 

(References   are   to   pages.) 

ItAILROAD  CROSSINGS  —  Continued. 

in  case  of  freight  ways,  241 
injunction   against   improper    structure,    2.">.-> 

plans  and  specifications,  filed  with  and  approved  by  commissioner  of  rail- 
roads,  235 
in  case  of  freight  ways,  241 
powers  of  commissioner  of  railroads  as  to.   234,  235 
repair    and    maintenance,    233 

liability  of  municipality,  street  railroad  and  railroad  for  accidents,  194 
power  of  company  to  close  for  repairs,  195 
by  bridge,  viaduct,  etc.,  over  street, — 
low  bridge  —  remedy  for,    195 
manner    of    construction,    etc.,    228 

municipality  may   prohibit   stopping  of  engines   over.   228 
use    of,    for    switching,    22S 
repairs  and  maintenance  when  grade  crossing  abolished.  230,  231,  233 
company's  duty  as  to,   230,  231,  233 
municipality's  duty  as  to:  tax  fcr,  230,  231,  233 
required    in    case   cf   highways    to   public   cemeteries   from    cities   of    1st   or    2nd 
class,    193 
private  cemeteries  not  included,  195 
signals  at;   bell  and  whistle,  when,  226,   227,  228 
municipalities    may    prohibit,    228 
penalty  for  failing  to  give,  637 
at  grade. — 

abolishing,  altering,   etc.      (See  "  above   or  below  grade"  above.) 
agreement  as  to,   229,   230 
appropriation  of  property   for,   230,  233 
costs  of,  apportionment  of,  230 

between    company    and    municipality,    2-'i:'> 

two  or  more  companies,    232 
bonds  for  county's  or  municipality's  share,  231,  233,  234 
street  railways  to  bear  part  of,  when,  234 
damages  because  of,  230,  231 
municipalities    may    require,    when,    231 
ordinance  or  resolution  to  proceed  with,  230 
acceptance  of,  by  lailroad,  230 
enforcement  of,  against  railroad,  231 
filed,   etc.,   in   court  of   common   pleas.   230 
plans   and   specifications   for  —  preparation   of:    requirements   as  to,   232 

review,   etc.,   of,   by   circuit    court,   232 
resolution  as  to  —  must  show  what,  229,  230 

notice  of.  to  abutting  property  owners,  230 
publication  of,   230 
when    on    county   line    roads,    231 
approaches   to, — 

companies  must  build  and  maintain,  228,  229 
failure  to  build  and  repair-,  penalty,  229 
notice  to  companies  as  to.  228 
grade  of,  221 — 
cattle  guards  to  be  maintained  at.  216 

company    not    entitled   to   compensation    for.    221 
exceptions  as   to,   in   towns  and   station  yards.   221 
liability  for  lack  or  insufficiency  of.   216 
penalty  for  failing  to   construct  and  maintain,  223 
companies  must  guard  during  construction,  193 

duty  is  personal:    cannot  be  shifted.   193 
companies  must   maintain   safe  and   sufficient,    216,   228 
failure  to  build  or  repair,  223.  229 
notice  to  railroad  as  to.  228 
"crossing''  defined.  221,  22S 
diversion  of  highway   at,   authorized,   193 
agreement  or   contract  as  to,   189 
appropriation  of  land  for,   195 
damages  for,  not  included  in  condemnation,  194 
extent  of  power  as  to,   193 
guarding  highway   during  construction,    1&3 
keeping  highway,   etc.,   in   repair,    193 
provisions   apply   only  to  country   highways,    194 
restoration  of  highway,    193.   194 


[NDEX.  869 

(Reference!  are  to  pa 

RAILR<  )AD  CROSSINGS  —  ( lontinued. 

duty    i-   persona]    to   company,    L93 
liability  for  failure  as  to,   I'M 
remedy   for   failure,  etc.,    [04 

(•unit    may   prescribe   whal    as  t<>.    194 
duly  of  persons  using,  220 

contributory  negligence,  227 
proximate  cause  of  injury,   227 
flagmen,  etc.,  at.     (See  "  Watchman  "  below.) 
gates,  safety  devices,  etc.,  at.  il.  23 

arbitration  as  to  in  cities  of  2nd  class  3rd  grade   (b),  !■'• 

defective.    11 

expenses  of  —  when  nunc  than  one  railroad  crosses,  23 
duty  of  gateman  as  to,  22 

of  railroad  to  maintain,  22 
in  cities  of  1st  class,   1-t   ami  2nd  grades,  638 

2nd  class,  3rd  ^rade    (b),  215 
municipalities  cannot  order,   in  absence  of  statute,  22 
in  cities,  governed  by  section  3283,   189 
obstruction   of. — 

by   trains,   car-,   etc.,   577,    037 

except    in   cities   of   2nd    class,    1-t    grade,    637 

in  cities  of   Isl   class,   1st  and  2nd  grades,  2nd  class,  3rd  grade  A.  »;;7 
passenger  trains  discharging  passengers  excepted,  when,  638 
regular  moving  train,  excepted   when,  638 
time    limit    as    to,    ">77.    » J -" ' 7 .    638 

conflicting  righl    between    companies,    638 
power  of  railroad  to  make,   176 
repairs,  alterations,  etc.,   of — -agreements  as  1".    189,  230,  2.;) 

duty  of  company  as  to.  193 
restoration  of  highway  at  —  duty  of  company.   193 

liability    and    remedy    for    failure,    194 
rights  of  company  and  public  at.    195 

sidewalks  at.  railroads  must  build  and  maintain,  when,  228 
failure  to  build,  etc.,  229 
notiee  to  railroad  as  to,  228 
signals  at:    liell,  whistle,  when.  22.  226,  227 
not   to   be   used   in   certain   cities.   23 
ordinances  as   to,   in  municipalities,   226,   227.   228 
penalty  for  violating  provisions  as  to.   227,  0.37 
testimony  as  to:   affirmative,  negative,   227 
when   highway    crossed    by    bridge,    226,    227,    22S 
sign  boards  at.  215 

omission  of,   effect   of.   etc..   21G 
snow  must    be    chared   from,    22!) 

failure,  not  negligence  per  se,  22'.) 
penalty  for  non-compliance,  22'.i 
watchman,  gateman,   flagman,   etc.,  at,  22 
duty  of.  22 
power   of   municipalities   as    to,   227 

cannot   order  in  absence  of  statute.  22 
in  cities  of  1st  class,  1st  and  2nd  grades,  638 
2nd  class,  3rd  grade  (b).  23 
Over  railroad,   electric  railroad,  etc., — 
above  or  belcw  grade,  when,   224 
contract  to  maintain,   specific   performance,   226 
engines,  trains,   etc.,   using. — 

may  cross   without    stopping,   when.    2:1.   2.">.   224 
must   stop   at,    when.   224 
penalty  for  non-compliance.  220,  G37 
precedence    in    crossing,    224 

rules  and   regulations  as  tc  to  be  made  and  published,  226 
expense  of  constructing  and  maintaining,  221.  22.") 
inter-locking  system    or   fixture-    for.   2.">.    224 

approval,   etc..  of  by   commissioner   of  railroads,    24.  224 

refusal    to    approve;    proceedings    upon,    224 
expense   of  constructing,    maintaining,  operating,    24 
penalty  for  failure  to  erect,  etc..  when  ordered,  22.  2."..  25 
petition  for:    hearing   on:   notice  as  to,  etc.,  24 
order  on.  granting,  24 


860  INDEX. 

(References   are   to   pages.) 

RAILROAD  CROSSINGS  —  Continued. 

iessee"s  duty  as  to  maintaining,  etc.,  225 

mode  and  manner  of,  court  may  decide,  when,  224 

negligence  in  operating,   226 

penalties  for  interfering,  obstructing  laying  tracks  at,  242 

for  obstructing  operation  of  road  at,  242 
Over   railroad,    etc. — 

right  to  cross  track, — 

damages  because  of  —  consequential :   measure  of,  225 

exclusive,  none,  225 

source  of,  225 
watchmen  at;   duties  and  expense  of,  224,  225 
Over  street  railway  —  expense:    made  how:    renewal   of,   50,  51 
street  cars  must  stop  at,  306,  307 

signal  to  cross,  who  to  give,  306 
Private  crossings  over  railroads  — 
agreements  as  to  — 

breaches  of, —  measure  of  damages,  220 
remedy  for.  220,  222 

effect  of,  223 
cattle  guards   at,   221 

agreements  as  to,  effect  of,  223 
cattle  pass, —  contract  for,    224 

use  of  culvert,  water  ways,  etc.,  for,  224 

land  owner  to  maintain  fences,  etc.,  224 
company  to  construct  and  maintain,  when,  216,   222 

except  in  case  of  agreements,  223 

where  compensation  has  been  made;  223 
record  of  such  cases,  223 
gates,  etc.,  at,  220 

duty  as  to  closing,  220 
land  owner  may  build  when,   222 

expense  of,  recovery  of,  222 

injunction   against  interfering  with,  222 

notice  as  to,  222 
location  of,  222 
signals  at:   bells,  whistles,  when,  226 

ordinances    as   to  in   municipalities,    226 

penalty  for  violating  provisions  as  to,  227 
who  entitled  to;   what  determines,  222 

RAILROAD  POLICE. 

Appointment  of,   292 

Badge  of  —  consists  of  what,  293 

must  be  worn,  when,  293 
Commission  of,  292 

certified   copy  of,   and  oath   recorded  where,  293 
Compensation  of,  paid  by  company,  293 
Conductor  of  passenger  train  has  police  powers,   293 
Liabilities  of,  293 

Oath  of:  indorsed  on  commission,  293 
Powers  of,  293 

cease  when:   notice  as  to,  293 
to   enforce   regulations    of    company,    293 
Qualifications  of,  292 
Term  of  office,   292 
RAILROAD  TRAINS.      (See  "Rolling  stock"  under  Railroads.) 
Construction,  conductor  of,  qualifications  of.  247 
Crossing   bridge,    highway    or    railroad    crossings.      (See   "Bridges,"    under    Railroads: 

Railroad  Crossings.) 
Duties  and  powers  of  commissioner  of  railroads  in  certain  cases,  21 
Freight, —  air  brakes  on,  255 

conductor  of,  qualifications,  247 
crew  for,  what  required;  penalty,  258 
riding  on  —  company  may  regulate,   264 

by  officers  and  guards  of  penitentiary,  265 
physicians,  when,  265 
prisoners  in  charge  of  sheriff,  when,  265 
sheriff  and  deputies,  when,  265 
Passencrer  —  conductor  of,  qualifications,  247 
posting  time  of  arrival,  etc.,  of,  214 


[NDEX.  -'•! 

(References   are    to   paf 

RAILliOAD  TRAINS  —  Continued. 
penally  for  failure,  2 1  I 
stopping  of — at  certain   places   required,  213 
power  of  company  t<>  regulate,  213 
Shooting  or  throwing  at,  t;:;i> 
Speed  of, — 

in  corporate  limits  —  limitations  upon,    16 

municipalities  may  regulate  by  ordinance,    16 

penalty    for   unlaw  till..    Hi 

unlawful,  is  evidence  (if  negligence,   16 
Unlawful  meddling  with,  injuring,  etc.,  636 

REAL  ESTATE.     (See  also  under  respective  companies.) 
Appropriation  of.     (See  Appropriation.) 
Conveyance  of  — 

by  corporations  — 

acknowledgment  of — form  for,  662    663 
stockholder  may   act   as   notary.    Ill 
authorization  of,  by  director-,  presumed  when,  ls7 
corporate  seal,  necessity  and  effeel  of,  111,  11- 
execution  of, —  authority  of  officer  presumed,   111.   1-0 
form  for.  002 
proof  of.  Ill,  188 
variance  between  grantor  and  signer,  effect  of.  1 1 1 
witnesses,   stockholders    may    act    as.    Ill 
to  corporations — held  in  escrow,  188 

"successors"  not  necessary  when,  111 
Entering  upon.      (See  Appropriation.) 
Foreign  corporations  may  hold,   14 

"Lands"  includes  what  "in  appropriation  proceedings,  184 
Of  corporations.      (See  under  respective  companies.) 
necessary  to  its  business,  what  is,  110 
taxation  of.      ( See  Taxation  . ) 

returned  as  personalty  when,  56 
Powers  of  corporations  as  to  — 

to  deal  in.      (See  Real  Estate  Companies.) 

at  common  law.  95 
to  mortgage,   to   secure   notes,   bonds,  etc.,    150 
to  purchase  and   hold,    103,   110 
who  may  question,  etc..   110 
Stock  subscriptions  paid  in.   110,  138  # 

REAL  ESTATE  COMPANIES. 

Are  corporations  for  profit,  95 

Directors  of,  dut;^s  and  powers  of,  upon  expiration  of  charter,  93 

Disposition  of  real  estate  upon  exp'ration  of  charter.  93,  94 

action  for  sale  of.  etc.,  93,  94 
Expiration  of  charter.  93,  94 
Limit  on  amount  of  land  held,  95 
RECEIVER.      ( See  Dissolution  of  Corporation:  Railroad  Companies.) 
Actions  by  — 

in  other  jurisdictions,  when,   159 
to  collect  stock  subscriptions,   13!).   141 
to  enforce  judgment  for  stockholder--   liability,   588 
Appointment   of  — 

application  or  action  for, — 

creditors  are  proper   parlies   to,    589 
for   sole  purpose   of.    cannot    he    maintained.    :>s:7 
may  be  fraud  justifying  attachment,   586,   588 
who  entitled  to  make  —  contract  creditor   not.   588 
directors  not.   when.    588 
stockholders    not.    when.    587,    588 
surety  of  insolvent   company   i-.  588 
courts,  etc..  will  make  when:    what    court-.   135,   587 

after   judgment — to  carry  into   effect   or   enforce.   5>!7 
to  preserve  property  pending  appeal,    587 

when   execution    returned   unsatisfied    ami    debtor    refuses   to   apply   property 
to  satisfaction  of  judgment.  587 
consent  of  company  will  not  confer  jurisdiction,    "v" 
if  voluntary  liquidation  is  possible.  588 
in  actions  between  partners,   joint  owners,   etc..   587 


862  JMVEX. 

(References  are   to  pages.) 

RECEIVER  —  Continued. 

to   enforce   liability   of   directors,   trustees,   officers,    stockholders,   etc.,    158, 

162.    588 
to  foreclose  mortgage,  when  necessity  shown,  587 
to  subject  property  to  claim  of  creditor,  587 
to  vacate  fraudulent  purchase  of  property,   587 

where  interest  of  party  is  probable  and  danger  of  loss,  etc..  is  shown.  587 
in  case  of  dissolution,  insolvency,  forfeiture  of  corporate  rights,  etc.,  587 
insolvency  proven,   how,  589 

propriety  of  making  of  insolvent  company,   589 
in  cases  where  usages  of  equity  sanction,   587 
ground  for  —  creditors  pressing  claims,  is  not.  588 

fraud  or  misconduct  of  directors,  in  action  by  stockholder,  587,  588,  589 
to  run  and  continue  business,  587.,  588 
in    ancillary   proceedings    in  another  jurisdiction,   who   makes,    589 
in  case  of  bond  companies  operating  on  lottery  basis,  589 
who  eligible  to;  consent  of  parties,  590 

attorney   interested  in  action  not,   590 
directors    or    stockholders    not,    590 
must  be  resident  of  state  in  case  of  corporations,  128 
party  or  person  interested  in  action  not,  590 
safe  deposit  and  trust  companies,   51-4 
without  notice,   when,   589 
Bond    of,    590 
Corporations  in   hands   of  — 

action   against,   brought  where,   579 

while  in  hands   of,   578 
cannot   sue,    532 

effect  of  sale  of  property,  on  right  to  elect  directors,    124 
lien  of  prior  attaching  creditor   of,   589 
power  of   company  over  property,   589 
service  of  process  upon,   578,  579 
title   to   property   of.    589 
Creditors  in  same  jurisdiction  with,  cannot  attach  property,  586,  589 

filing  claim  with,  estops  attaching  property  of  foreign  corporation,  5S6 
Duty  of  —  as  to  listing  property  for  taxation,  55 

as  to  statements  to  board  of  appraisers  of   railroads,  66 
Examination  of,  by  board  of  appraisers  and  assessors. — 

in  case  of  electric  light,  gas,  messenger  or  signal,   natural   gas.   pipe  line,    railroad, 
street,    suburban    or    interurban    railroads,    union    depot,    and 
water  works   companies,   79 
equipment  (R.  R. )   and  freight  line  companies,  73 
express,  telegraph,  and  telephone  companies,   70,   79 
sleeping  car   companies,   75 
Funds  in  hands  of,   investment  of,    590 

consent  of   parties   to.    591 
Is  not  agent  of  corporation,  131,  589 
Liability   of  —  for    negligence,   589 

for  taxes,  589 
Mandamus   will    not   lie   against,    when.    590 
Oath  of,   590 

Pledge  of  stock  in  hands  of.  may  sell  when,  148 
Powers  of,  590 

over  property,   real    estate,   etc.,    590 

to  sell   property.  590 

to  set  aside  —  fraudulent  conveyance,  mortgage,  etc.   590 

judgments,    590 
to   sue  in   own   name,    590 

in  name  of  company,   590 
when  a  non-resident,   130,   590  * 

RECIPROCAL  PROVISIONS.      (See  Retaliatory  Provisions.) 
RECORDS.      (See  Corporate  Records.) 
REFEREE. 

Appointment  and  duties  of  —  in  action  to  enforce  stockholders'  liability.   163 
upon   petition    for    dissolution   of   corporation.    594 
REFINIXO   COMPANIES. 

Articles   may    provide   for   construction    of    railroad,    etc.,    568 
Business  of,  carried  on  where,  568 
Consolidation   of  — 

agreements  for,   568,   271 


IM)I\. 

(Referi  net  I  art   i"  pages.) 

KKHNING  COMPANIES  —  (.'out  inued. 

a<l<Kption  of,  to  be  certified   upon,  568,  -71 
effect  of.   when   perfected,   568,    -''■'< 
filed    with    secretary    of    state,    568,    '271 
must  prescribe  what,  568,  271 

capita]    stock  —  amount,   manner   of   converting,    numbet    and    pai    value   oi 

shares,  568,  271 
directors,  number  and  residences  of,  568,  271 

name   of,    568,   271 

officers,    names   and    residences,    568j   271 

prior  agreements  confirmed,  568,  271 

submitted  to  stockholders  of  each  company,  568,  27  1 
conveyance  of  franchises,  rights,  etc.,  to  new  company,  568 
meeting  of  stockholders  to  authorize;  568,  271 

notice   of:    waiver,   etc.,   568,   271 

vote  at,  what  necessary:  by  ballot,  568,  271 
powers  of  new  company,  568,  27:'. 
sections  3381,  3382,   apply   to,   508 
takes   effect  when,   508,   273 
Powers  of  — 

to  acquire,  hold,  etc.,  real   or  personal   property,    "'tis 

outside  of  state,   568 
to  acquire,  hold,  etc.,  stock  in  railroad  and  transportation  companies,  568 

consent  of  stockholders  to,  568 
to  carry  on  business  in  or  outside  state,  568 
to    construct    railroads,    etc.,    when,    568 

none  to  appropriate   property   for,   568 

ItEGULATIONS.     (See    By-Laws.) 

Adoption  of  —  accomplished  how,   136 

corporations  may  adopt;   necessity  of,   135,   136 

As  to  assertion  of  rights  in  court    by  members,  136 
Change  of,  how  made,   136,   137 

form   of   provision   for,    669,    072 
Construction  of,   136 
Forms  for  —  for  companies  for  profit.  008.  670 

for   companies   not  for   profit,    070-072 
May  provide  what.   137 
Must  be  reasonable,   136 
Signing,  effect  of,   137 
RE-INSURANCE.      (See  Insurance  Companies.) 
RELIEF  ASSOCIATIONS  OF  EMPLOYEES.      (See  Insurance  Co.'s  —  Life:   Railboads.) 

Fees  for  filing  articles  of  incorporation,  9 
RELIGIOUS  ASSOCIATIONS,  SOCIETIES.  ETC. 
Articles  of   incorporation  of  — 
fees  for  filing,  9 

in  case  of  consolidation,  490.  -101 
must  be  copied  into  book.   113 
Association  to  hold  donations,  bequests,  etc.,  492 
application    of    income,    4!>2 
principal  to  be  permanent  fund,  4'.i2 
Cemetery,  grounds  of.      (See  also  Cemetery  Association:    Schools,  Colleges. 
location  near   dwelling  house  forbidden,   when,    :'>.">7 
.;lle  0f5 — excepted   from  power   to  sell  real  estate.  498 
in  municipalities,   prohibiting  interments.    488 

petition  for:   notice  of  filing,  etc.,  hearing  and   final   decree  upon, 
proceeds  of,  applied  how.    Jss 
removal    of   dead.    upon.    488 
rights  of  lot  owners,   upon,  488 
subdivision  of.  into  lots,  upon,  488 
to   townships    in    certain    cases.   489 
Certificate   of   incorporation    of. — 

prima  facie   evidence   of   original    issue   of,   92 
restoration  of  lost  or  destroyed.  92 
effect  of,  upon  former  acts,   92 
Church,  property  of  — 

abandoned,  unused,  etc.,  sale  of,  489 
petition   for,   489 
costs  upon,  489 
final  decree,  upon,  489 


864  INDEX. 

(References   are  to  pages.) 

RELIGIOUS  ASSOCIATIONS,  SOCIETIES.,  ETC.— Continued, 
notice  of  tiling,   489 
trustees   may   file,   489 

must  act  as  a  body,   489 
proceeds   from,  disposition  of,  489 
extinct  congregations,   etc. — 
applied  how,  493,  494 

new  congregation   entitled  to,   when,   494 
sale   of,    494 

petition  for,   494 

costs  upon,   494 
order   of  court  upon,   494 
parties  to,  494 
service  of   process,  upon,   494 
proceeds    of,    application   and   custody    of,    494 
title  of  purchaser,  494 
trustees  of  endowment  fund  companies  to  take  possession  of,  when,  493 
held  for  use  of, —  conveyed  to  congregation  or  trustees,  when,  490 
rights   of   seceding  members   in,   489 
what  constitutes   secession,  489 
Church  services,   language  of,  changed,  when,  488 
Consolidation  of  societies  of  same  denomination, — 
agreement  for,   490 

certified   by    clerk   of   first   meeting   becomes    articles,   491 

must  be   filed  with   secretary  of  state,  491 
made  by  whom :    must  specify  what,  490,  491 
ratification   of  —  by   first  meeting  of  new   society,   491 
by  members  of  each  society,  491 

record  of,  certified  to  first  meeting  of  new  society.  490 
effect  of,  491 
meeting  for,   490,   491 
officers    of   new    society,   490.   491 
powers  and  liabilities  of  new  society,  491 
property,  etc.,  of  societies  passes  to  new  society,   491 
Consolidation   or   union   of    societies,    denominations,    etc. — 
transfer  of  property,  upon,  492 
petition  for,  492 

decree  of  court,  upon,  492 
must  show  what,   492 
parties   to,   492 
notice  of  filing,  492 
Denominations,  etc.      (See  "  Consolidation"  above.) 

right  of  congregation  to  withdraw  fronij  493 
Endowment,  etc.,  fund  companies  ior  — 

articles  of  incorporation  of  —  acknowledgment  of,  493 

certified   copy  of,  evidence  of  corporate  existence,  493 
executed   by   whom,   493 
filed  with  secretary  of  state,  493 
must  show  what,  493 
funds   and    property   of.   493 

character    of,   articles  to  give,    493 
power   of  religious  societies  over,  493 
power  of  trustees  over,   493 
uses  of,   articles  must  give,   493 
trustees  for,  492 

election   of.   492 

names  of  first,  articles  must  give,  493 
number  and  qualifications  of,  492,  493 
powers  of,  493 

over   other   property   of   society   or   denomination,   493 
over  property  of  extinct  congregations,  493 
Incorporation,  prima  facie  evidence  of,  92 
Injunction  lies  to  prevent  breach  of  trust,  107 
Judgments  against  —  none  against  unincorporated  church.  493 

property  held  in  trust,  etc.,  subject  to,  when,   490,   493 
May  hold  stock  in  public  hall,  etc.,  company,  when,  395 
elect  directors  of.  etc..  when,  395 
liability  of,  as  stockholders,  395 
Members  of  —  powers  of,  489 
rights  of  seceding,  114,  489 


INDIA.  Mfi 

(References  :u<    to  p 

RELIGIOUS  ASSOCIATIONS,  SOCIETIES,  ETC.— Continued. 
wha.1   constitutes  secession,   189 

rif^litH   of,    to    vote    114 
who  may  be,   1  13 
Mutual  benefit,  associations  of.     (See  Insurance  Companies       l.n 

actions  against;   provisions  of  section  3630f  do  no1  apply,  when,  393 
examination   of,    by    superintended    of    insurance;    provisions    ol     ection    3630d    <lo 
iic.i  apply  to,  \\  hen,  303 
may  become  subject   to,  how.  393 
foreign  associations;  provisions  of  section  3630e  do  not  apply  to.  when 
not  subject  to  section.  3630a  to  3630f,  3631,  when,  393 

may  become  subject  to  -ection,  3630a,  3630c,  3630d,  bow,  393 
report    to   superintendent    oi    insurance       fees    tor    filing,    etc.,   ■':'•'::.    35 
provisions  of  section.  3630a  to  3630c  do  doI  apply,  when,  393 
may   become  subject    to,    bow,   393 
treasurer  of  — 

bond,  required  when,  :{!).'}.   392 

amount  and  conditions  of,   393,   392 
examined  as  to  sufficiency,  annually.   ::<i:;.   392 
filed  with  secretary  of  state.  393,  392 

renewed  when  required  by  superintendent  of  insurance,  393,  392 
receipts  must  be  paid   to.   when.   393,   392 
Name  of  —  consolidation  agreement    m u-t   give,  490 
Powers  of  —  none  to  do  banking  business,  .124 

to  lease  theater.   113 
Printing    and    publishing    company    of  — 
articles  of  —  executed  by   whom.   494 
filed   with   secretary   of  state.   49.~> 
must  show    what.   494 
expired    companies    may    renew    under    provisions    as    to,    495 
name  of,  articles  must  give.  404 
trustees  of,   494 

acceptance  filed  with   secretary  of   state,  4!>l 
election  of,   494 

number  of;    term  of  office   of,   494 
Property  of.      (See  "Cemeteries,"  "Church   property,"  "Real  estate,"  herein.) 
certain  local  societies  may  transfer  to   parent    society,  4!in 

certificate  as  to.  filed  with  secretary  of  state  and  county  clerk,  4 '. t o 
held  for  use  of  —  conflicting  beneficiaries,  492 

descends    to    trustees    of    society,    when.    491 
trustees  may  sue  and  be  sued  as  to,  491 
trustees  for,  appointed  how.  4!U 
subject  to  judgments  for  labor,  materials,  damages,  etc.,   when.   493 
trustees,   etc.,    may   transfer,    etc..   when.    499 
Real   estate  of  —  conveyance,    to   trustees    individually,   effect,    493 
majority-  controls  use  and  occupation  of,    111 
members  must  consent  to  sale  of,  130 
sale,  exchange,   or  incumbrance  of  — 

certain    transfers,    etc.,   validated.   499 
petition  for.  498 

confirmation  of  sale  under..   500 
decree  of  court  upon,  498.   o00 
must   show    what,    49S 
notice  of  pendency  of,  500 
parties  to,  498,  499 
service  of  process  under.  499 
purchase  money  mortgage,   order  of  court  unnecessary,  499 
special    laws    empowering,    void.    499 
without  authority  of  court  invalid.  499 
Trustees  of  —  de  facto,  493 

number   of;    terms  of  office  of,   113 
powers  of,  489 

as  to  sale  of  church  property,  etc.  489 
RELIGIOUS  DENOMINATIONS.      (See  Religious  Associations .) 
REMAINDER  MAN. 

Rights  of,  as  to  appropriation  of  property,  1S4 
REMOVAL  OF  CACSES. 

Appropriation  cases  are  not  removable.  571 
Citizenship  for  purpose  of  — 

extension  of  railroad  into  another   state  doe-   not  alter.    182 


8G6  INDEX. 

(References   are   to   pages.) 

REMOVAL  OF  CAUSES  —  Continued. 

in   case  of  foreign  corporations,   14 
waiver   of,   right  of.    14 
Consolidation  of  railroads.,   effect  of,   270 
Foreign  companies  seeking  — 

license  of  life  insurance  companies  revoked  for,  375 
validity  of  such  provisions,  376 

REMOVAL  OF  DEAD  BODIES.      ( See  Corpse.) 

REORGANIZATION  OF  CORPORATIONS. 
Cannot  be  by  special  act,  2 

REPEAL. 

Corporation  laws  are  subject  to.  2 

"  REPEATING." 

Not  an  offense  at  corporate  elections,  124 

REPLEVIN. 

By  railroad  to  recover  scrap  metal,  241,  242 
affidavit  in,  242 

REPORTS.      (See  under  respective  companies.) 
Corporations  must  make,  17.  18 

failure  to  make,  penalty;   remission  of,  etc.,   19 

filed  when,  etc.,    17,   18 

form  prescribed  by  secretary  of  state,  17.  18 

must  show  what,   17,  18 

in  case  of  newly  organized  companies,  20 

certain  companies  excepted,  20 
Of  various  state  officers.      ( See  Commissioner  of  Railroads,  etc. :  Inspector  of  Building 
and  Loan  Associations:  State  Board  of  Appraisers:  Super- 
intendent of  Insurance;    Supervisor  of  Bond  and  Invest- 
ment Companies.) 
To  attorney  general,  by  farm  laborer's  associations,  565 

county  recorder,  by  companies  limiting  voting  power  of  stockholders,    121 

commissioner  of  railroads,  etc.  (See  Railroad  Co.'s:  Telegraph  axd  Telephone 
Co.'s.) 

secretary   of   state.      (See  Foreign   Corporations.) 

state  auditor.  (See  Electric  Light  Co.'s:  Equipment  (R.  R.)  Co.'s:  Express 
Co.'s:  Freight  Line  Co.'s :  Gas  Co.'s:  Messenger  or  Signal 
Co.'s :  Natural  Gas  Co.'s  :  Pipe  Line  Co.'s  :  Safe  Deposit  and 
Trust  Co.'s:  Savings  and  Loan  Associations:  Sleeping  Car 
Co.'s :  Street  Railroad  Co.'s  :  Telegraph  and  Telephone 
Co.'s:  Water  Works  Co.'s.) 

stockholders.      (See  Stockholders.) 

superintendent  of  insurance.      (See  Insurance  Companies,  etc.) 

RES  JUDICATA. 

As  to  corporate  liability  and  liability  of  trustees.  165 

In  quo  warranto  proceedings,  628 
RESCISSION. 

Of  consolidation  of  companies  made  by  sale  of  property,  111 

Of  stock  subscriptions,  139,  140 
RESERVE  FUND.      (See  Insurance  Co.'s:   Railroad  Co.'s.) 
RESIDENCE.      (See  Address:  Corporate  Domicile.) 

RETALIATORY  PROVISIONS 

As  to  expenses  of  examination,  etc. — 

in  case  of  bond  and  investment  companies,   521 
building  and  loan  associations.  560 
fraternal   beneficiary   associations,   397 
insurance   companies,   32 

life    insurance    (mutual    aid)    companies,    387 
As  to  franchise  or  privilege  tax  on  insurance  companies,   57 
As  to  doing  business,  by   insurance  companies,  35 

in  ease  of  life  insurance    (stipulated  premium  plan)   companies.  405 
RETURNS.     (See  Reports;  Taxation.) 
REVISED    STATUTES. 

Acceptance  of  provisions   of,   by  corporations   created   prior   to   1851,   91 
fees  for  filing  certified  copy  of,  9 
RIGHT  OF  WAY.      (See  Railroads.) 


INDEX. 

( Ref<  reno 

RINK  COMPANIES. 

Buildings,  grounds,  etc.,  of,  public  grounds  used  for,  when,  569 

Corporations    not.    having   capital    stock  — 
may  elect   directors,  etc.,  when.  395,  569 
may   hold   stock    in.    when,   395,    569 

liability  of,  as  stockholders,  395,  ."iti'.i 
Where  public  grounds  used  for  b»"Mings,  etc.,  of,  569 
articles  may  pn>\  ide  as  to 

number  of  shares  of  capital  stock  li< ■  I <  1  bj    stockholdi 

reversion  <>t'  shares  to  company,  569 

transfer  of  shares,  569 
buildings,  grounds,  etc.,  of  —  control   of,   569 

trespassing   upon,    etc.      penalty.    569 
directors  or  trustees  of  — 

agreement  with  municipal  authorities  as  to  appointment  and  number  of,  569 

compensation  of;   none,  569 

municipal  authorities  may  appoint   certain,  569 
may  be,  ex  officio,  569 
stockholders  or  members  of,  gain  or  profit  no1  to  be  received  by,     • 

RIVER  TRANSPORTATION  co.M  I' AM  ES.     ( See  Transportation  Compand 

ROAD  BED.      (See  Railroads.) 

ROAD  COMPANIES.     (See  Avenue  Company:  Turnpike  and  Plank  Road  Company.) 

ROADS,  IMPROVED.     (See  Turnpike  and  Plank  Road  Company.) 

ROLLING  MILL. 

Owner  or  operator  of  may  construct    freight  way-,  when,  240,  241 

ROLLING  STOCK.      (See  Equipment  Companies:    Railroads.) 
ROUND  HOUSES.      (See  Railroads.) 
ROUTE.     ( See  Railroads  :  Street  Railways.) 

SAFE  DEPOSIT  AND  TRUST  COMPANY.      (See  INSURANCE  Co.'S  — OTHER  than   I.ii 
Administrator,  may  act  as  when,  where,  513,  514 
Agent  under  power,  may  act  as  when,  where.  513,  514 
.Assignee,  may  act  as,  when  and  where.  513,  514 
Bonds  of,  as  trustees,  etc.,  surety  on,  when.  512,  513 
probate  judge  may   require,   when,   513 
what  is  sufficient,   513 
Burglary  insurance  company  may   insure.  445 
Capital    stock    of  — 

amount  paid  in  —  before  acting  in  trust  capacity  in  certain  cities,  513 

before  commencing  business,  513 
increase  of,  513.  105,  100 

assent  of  stockholders  if  preferred,  513,  166 
certificate  of,  filed  with  secretary  of  state,  513,   166 

in  case  of   preferred  stock.   513,    166 
companies  may  make.  when.  513,   165 

consent  of  all  subscribers  if  before  organization,  513,  165 
may  be  preferred  or  common,  513 
meeting  of   stockholders   for.    513,    165 
directors  must   call,   513,    165 
notice  of  time,  place  and  object  of,  513,  165 
waiver  of,  513,   165 
sections  3262,  3203.  apply  to,  513 
vote  necessary  for,  513,  165 
invested  how,   511,   513,   514 

preferred  stock  —  company  may  issue,  513,   166 
sections  3262,  3263,  apply  to,  513 
stockholder-  may  agree  to  issue,  513,   166 
transfers  of,  stockholders  may  determine  rules  as   to.   513 
Consolidation  of  savings  and  loan  associations  with.      (See  SAVINGS  and  Loan   ASSOCIA- 
TIONS.) 
Court  papers,  accounts,   etc..  by  — 

officer  duly  authorized  may  sign  and  verify.  512 

answers  and  examinations  of.  taken  as  for  company.  512 
Deposits  with  — 

company  may  decline  to  receive.  511,  512 
may  receive  from   whom..  511 


303  INDEX. 

(References  are  to  pages.) 

.SAKE  DEPOSIT  AND  TRUST  COMPANY  —  Continued. 

courts  may  order,  of  funds   paid   into  court,  510 
for  safe  keeping,  powers  as  to,  510 
what  may  be  received,   510 
Deposit  with  state  treasurer  — 

before  acting  in  trust  capacities,  required  in  certain  cities,  513 
amount  of:   in  what  securities,  513,  514 
exchange  of  securities,    514 
income  from,  company  may  collect  when,  514 
purpose  for  which  held,  514 
Dividends  —  by-laws  to  provide  as  to,  512 

none  when  reserve  fund  is  depleted,  511,   512 
payable  to  shareholders  when,  512,  513 
preferred  stock  may  bear  what,  513,  166 
Examination  of  — 

by  state  auditor,  512 

appointment  of  expert  for,  512 
may  be  made,  when,   512 
by  court, —  answers  of  officer  taken  as  for  company,  when,  512 
as  to  any  trust  matters,  514 
application  for,  514 
appointment  of  examiners,  514 
expense  of,   514 
reports  as  to,  514 
court  may  make  when,  512,  514 
officers  to  attend   and  answer,   512 
Guardian,  may  act  as,  when  and  where,  513,  514 

cannot  act  as,  of  person,  513 
Investments,  loans,  etc. — 

cannot  be  made  to  trustees,  officers,  employees,  etc.,  511 
limitations  as  to  amount  of,  etc.,  511,  514 
made  in   what,  511,  514 
Organization   of,   notice  of,   to   state  auditor,   512 
Powers  of.  510,  511,  513,   514 

Property  a'nd  effects  of,  liable  for  defaults  in  trust  capacity,  513 
Property  held  in  trust  — 

accounts  of,  to  be  kept  separate.  511 

companies  take   and   hold,   511 

loan  or  investment  of,  in  what,  511,  514 

limitations  as  to,  514 
security  for,  what  is,   511 
Real  estate  — 

may  purchase,  lease,  etc,  for  own  use,  510 

take  and  hold  in  trust,  513 
taken  on  execution,  foreclosure,  etc.,  to  be  sold,  when,  511 
Receiver,  may  act  as,  when  and  where,  514 
Registering  or  transfer  agent,  power  to  act  as,  510 
Reports   of,  to  state  auditor  — 

exemption  from  provisions  of  "  Willis  Law,''  20 
forms  of,  509,  510 

made  when:   as  of  what  date,   509,  512 
penalties  for  failure  to  make,  509 
publication  of,  509,  510,  512 

requirement   as   to:    must   show   what,   etc.,    509,    510,    512 
Reserve  fund  —  amount  reciuired,  511 
consists  of  what,  511,  512 

depletion  of,  dividends  not  declared  during,  511,  512 
loans  not  made  during,  511 
Savings  and  loan  associations  in  certain  cities    (Toledo,  Columbus)    may  do  business  of, 

when,  514 
Stockholders'  liability  —  extent  of,  512 

is  security  for  faithful  discharge  of  duties,  512 

for  default  of  company  in  trust  capacities,   513 
Trust  department  — 

accounts  of  trust  property  to  be  kept  in,  511 
companies  must  keep  a  separate,  511 
defaults  in  —  capital  stock  liable  for.  513 
property  and  effects,  liable  for.  513 
stockholders'  liability,  liable  for,  513 
deposits  in,  what  are,  511 


INDEX.  y«-U 

(liifuM r<    lo   pages.) 

SAFE  DEPOSIT  AND  TRUST  COMPANY       I  ontmued. 
companies  may  decline  to  receive,  512 
funds,  investments,  etc.,  in,  Becuritj   [01   trusl   fund     511 
not  sub  j  eel   toother  Liabilities  of  company,  511,  •">!- 
Trustee  under  will,,  instruments,  etc. 

company  act  as,  when  and  where,  512,  513,  5J  i 
Limitations  as  in  in  certain  <ii  iea,  513 
may  decline  to  act,   512 
court,  may  appoint,  as,  512,   513 

may  order  settlements  when,  514 
surety  required  on  bonds  given  a-,  when.  512,  513 
subject  t<>  same  control  as  persons,  512 
property  held  by,  as,  invested  bow,  512 

held   separate  from   genera]   trUfll    fund,    when,   512 
instructions   as  to,   to  lie  followed.   512 
not  liable  to  debts  or  obligations  of  company,  512 
not  to  be  mingled  with  capital  or  other  property,  512 
SAFETY  DEVICES.      (See  Railroads:   Railroad  Cbossi    i 
SALT  COMPANIES.      (See  Mixing  Companies:   Kkiinim;  COMPANIES.) 

SALT  WELLS. 

Cemetery  associations  eannot   appropriate  land  occupied   by,   '■>■>< 
in   cities  of   second    class,    third    and    fourth    grades,    357 
near  cities  of  first   class,  firsl   grade,  357 

SALVAGE  COMPANIES. 

Are  companies  not  for  profit,  436 
By-laws,  power   to  make.  437 
Expenses  of  —  amount  fixed  how,  437 

assessment  of,  etc..  upon  tire  insurance  companies,    13" 
General  corporation  law  governs.  437 
Meetings  —  biennial,  437 

agents,  etc.,  of  lire  insurance  companies'  vote  at,  437 

notice   of,   etc.,   437 
Objects  and  purposes  of,  43G 
Officers,  etc.,  of,  election,  powers,  etc.,  43G.  437 
Place  of  business  of,  437 
Powers  of.  436,  437 

subject,  to   public  authorities,   436  _     . 

Reports  to.   fire  insurance  companies,  etc.,   to  make  when.  437,    138 

demand  for;   failure  to  make,  438 

must  show  what,  438 
SANITARIUMS,    HOSPITALS..    ETC. 

Corporations  may  erect   and    maintain,  93 

not  liable  for  negligence  of   nurse,   165 

objects  and   purposes  of,  93 

trustees   for   life,   number   of,    113 

existing  companies  may  accept    provisions:    not  ire.    11.', 

SAVINGS  AND  LOAN  ASSOCIATIONS.     (See  Buixoing  am.  Loan  Associations.) 
Articles,   submitted   and   certified   by   attorney   general,    503 
Capital  stock  of, — 
amount  of  — 

advertising   amount    greater  than  paid    in,   506 

in   case   of   companies    loaning  on   pledges   of   personal    property    in   certain 
counties    i  Cuyahoga  i .  506 
required  in  case  of  chattel  mortgage,  etc.,  companies  i„  cities,  first  cl  iss.  firsl  and 

third  grades,  second  class,  firsl  and  seci  nd  •_• 
subscribed  before  commencing  business,  503 

in  ease  of  chatud  mortgage  companies  in  cities,  lir-i    class,   firsl    and   third 
grades,  second  class,  first  and  second  grades,  507 
increase  of,  stockholders  entitled  to  pro  rata  share  of,  at  par,  505 
lien  on,  by-laws  may  provide   for,  504 
shares  of,"  par  value  of,   503  , 

subscriptions  to.  amount    paid   up  before  commencing  business,   5(M 
Ceasing  to  do  business,  distribution  of  assets  upon.  507 
Charters  extended  of  certain  companies,  508 

are  subject  to  amendment,  repeal,  etc..  508 
Companies  in  certain  cities    (Columbus  and  Toledo,    doing  safe  deposil    and   trust  bun- 

ness,  as  to  power-,  eta     (See  Safe  Deposit  am>   1i:i  si   i 
Consolidation  of.  with  safe  de'posH    and  trusl   companies,  when.  516 
fees  for  tiling  agreement  for  in  certain  cases,  516 


870  INDEX. 

(References   are   to  pages.) 

SAVINGS  AND  LOAN  ASSOCIATIONS  —  Continued, 
officers  of  new  company,  516 
powers,  etc.,  of  new  company,  516 
proceedings  for,  section  3381  governs,  516 
property  of  constituent  companies,  516 
rights  of  creditors,   516 
Constitutionality  of  provisions  as  io;  503 
Deposits    in  — 

by  minors,  married  women,  etc.,  504 
certificates  of  —  liability  for  fraudulent,  505 

power  to  issue    505 
character   of,   471,   472 
interest  on,  505 

surplus   fund  required  before  paying,   508 
received  from  wliom,  573 
regulations  as  to, —  change  of,   504 
directors  may  make,  504 
printed  in  pass  books,  504 
taxes  on,  504  i 

Depositors  in,  returns  of,  for  taxation,  63 
Directors  of  —  duties  and  powers  of,   504 

liability  for  waste,  mismanagement,  etc.,  503 
Dividends,  payment  of,  507 
limitations  as  to,   507 
surplus   fund   required  before,    508 
Foreign,  section  148c  does  not  apply  to.  11 
Funds  of,  invested  how,  505 

limitations  as  to,  505 
Interest  on  loans,  discounts,  etc.,  505,   506 

in  case  of  certain  associations  under  former  laws,  508 

on  borrowed  money,  in  cities  of  first  class,  first  and  third  grades,  second  class,  first 
and  second  grades,  507 
deposits,  505 

loans,  discounts,  etc.,  505,  506 

pledges  of  personal  property  in  certain  counties    (Cuyahoga),  506 
usurious  —  enforcement  of,  506 

contracts  void  for,  how  far*   506 
penalties  for,  506 
Investments  of.      (See  also  "Deposits  of  funds,"  above.) 

character  of  in  case  of  certain  companies  under  former  laws,  508 
Loans  by  —  expenses  of  making,  paid  by  borrower,  505 
interest  on,  505,  506 
limitations  as  to"  amount  of,  505,  507 

to  officers  and  directors,   504 
officers  and  directors  not  to  be  surety  on,    504 

on  chattel  mortgage  in  cities  of  first  class,  first  and  third  grades,  second  class,  first 
and  second  grades,  506 
amount  of.  limitations  as  to,  507 

expenses ;   interest,  507  . 

notice  as  to  charter  powers  as  to,  507 
on  pledge  of  personal  property  in  certain  counties    (Cuyahoga),  506 
amount  of,  limitations  as  to,  506 
charter  provisions  as  to.  printed  in  pass  books,  506 

notice  as  to  same,  506 
expenses ;   interest  on,  506 

subject  to  laws  and  ordinances  as  to  pawn  brokers,  506 
unredeemed  pledges  sold  when,  506 
application  of  proceeds,  506 
Officers  of  —  bonds  of;  approval,  increase  of,  504 
Organization    of  — 
meeting  for,  504 

incorporators  appoint  time  and  place  of,  504 
notice  of,  504 
notice  of,  to  state  auditor,  507 

in  <ase  of  company  doing  safe  deposit  and  trust  business,  515,  512 
Powers  of,  505.  508 

in  case  of  certain  companies  created  under  former  statutes,  508 

may  exercise    of  safe  deposit  and  trust  companies  in  certain  cities    (Columbus  and 
Toledo),  514,  515 
Provisions  as  to  — 

acceptance  of,  by  certain  companies,  508 


l.NUK.V  H71 

(Refi 

SAVINGS  AND  LOAN  ASSOCIATIONS  —Continued, 
evidence  as  to,  508 

filed  and  recorded  bj   secretary  of  stale,  508 
do  not  apply  to  certain  companies,  508 
Real  estate  —  loans  on.     (Sec  "Loans"  above.) 
power  t<>  acquire,  bold,  etc.,  505 

for  purposes  of  own  business,  508 
purchased  («>  secure  debts,  beld  how  Long,  505 
Reports,  to  state  auditor,  507 

building  and  loan  associations  excepted,  ."><><) 
examination   and   investigation    of,   507 

compensation  of  examiners,  who  pays,  508 
forms  of,  50!),  510 

made  when,  as  of  whal  date,  507,  508,  509,  510 
must  show  what,  507,  ■">"!•.  510 
penalties  for  failing  to  make.  509 
publication  of:  cost  of,  etc.,  507,  508,  50!),  510 
Safe  deposit  and  trust  business, — 

companies  in  certain  cities   (Columbus,  Toledo)   may  do,  -",1  I.  515 
certificate  as   to,   filed    with   secretary  of  state.   515 
meeting  for  authorizing,  515 

powers,  regulations,  etc.       (See  SAFE  DEPOSIT  AND  TBUST  COMPANIES.) 
vote   necessary   for.   515 
Secretary  and  treasurer  may  lie  same  person,  504 

Surplus  or  undivided  profits  of  — amount  before  paying  dividends,  etc..  508 
who  lists  for  taxation,  in  companies  having  m<>  capital  stock.  .">:> 
SAVINGS  BANKS.      (See  Savings  and  Loan  Associations.! 
SCHOOLS,  COLLEGES,  ETC.     (Sec  Chabitabije  Trust  Companies.) 

Administrations  of,  rights  as  to  may  be  conferred  on  ecclesiastical  body  of  denomination, 

when,  477,  478 
Agents,  officers,  etc.,  of  — 

appointment  and  removal  of,  when,  by  whom,  etc..    17  1 

in  case  of  institutions  under  patronage  of  religious  bodies,  475 
compensation  of,  trustees  fix,  471 
Agriculture,  what  lands,  etc..  may  he  held  for  teaching,  472 
Alumni  of.      (See  "  Trustees"  and  "  Visitors"  below.) 
Anatomy,  teaching  in,  bodies  for    (see  Corpse),  481.  482 
Articles  of  incorporation  of, — 
amendment  of. — 

for  change  of  name,  object,  etc.,  481 

certified  copy  of.  tiled  with  secretary  of  state.  4S1 

fees  for.*  481 
effect  of,   48 1 
trustees  may  make,  481 
of  stock  companies  to  permit  co-education  and  change  of  name,  480 
copy  of  articles  to  accompany,  when.  480 
effect  of.  481 
filed  with  secretary  of  state,  480 

fees  for,  481 
meeting  of  stockholders  for:   notice  of,  etc.,  480 
petition   for,   480 
may  grant  right  to  appoint  trustees,  etc..  to  religious  sect  or  denomination,  4,, 
may  show — "religious  denomination  with  which  connected,  477 
'  rights  and  powers  granted  ecclesiastical  body,  477 
Bequests,  devises,  gift-,  etc..  in  trust.  471.  482 
Bonds  of,  trustees  may  issue,  when.  473 
secured  how;  on  what.  473 

^as^to"  election   of  trustees   by   alumni    when    not    under    patronage    of   four    or    more 
religious  bodies,  484 

trustees  may  enact  what,  471 
Capital  stock,   changed  into  scholarships,   when.  472 

certificate  of.  filed  with  secretary  of  state.  472,    L66 

consent  of  all  subscribers  necessary,  before  organization,  4.2,   165 

meeting  of  stockholders  for,  472,  165 
notice  of.  etc..  472,  165 

section  3262  applies  to.  472 

vote  necessary  for,  472.    165 
Cemetery,  grounds  of.      (See  also  Cemetery  Association:  REUGIOl  -  Association-.) 

sale  of,  in  municipalities  prohibiting  interments.  488 


872  INDEX. 

(References   are   to   pages.) 

SCHOOLS,  COLLEGES,  ETC.—  Continued. 

petition  for:  notice  of  filing,  etc.,  488 

heaving  and  final  decree,  488 
proceeds  of,  applied  how,  488 
removal  of  bodies,  upon,  488 
rights  of  lot-owners  upon,  488 
subdivision  of,  into  lots,  488 
Co-education  in  —  amendment  of  articles  for,  480 
Degrees,  honors,  etc. —  conferred  by  trustees,  when,  471 
conferring  without  regard  to  merit,  ouster  for,  471 
faculty  must  recommend,  471 
what  schools  may  grant,   471 
Dissolution,  or  liquidation, — 

trustees  of  stock  companies  may  make,  when.  480 
Endowment   funds,  corporations, — 

directors  of,  number  and  election,  477 

members   in   arrears  —  may  not  vote  for,  477 
not  eligible  to  election  as,  477 
may  divert  funds,  how  and  when,  473 

notice  of  meeting  to  elect  directors,  adopt  by-laws,  etc.,  477 
trustees,   control  funds  of.   477 

may  receive  subscriptions  for  membership,  470 
voting  power  of  members,  477 
Faculty  of,  etc., — 

.appointment  and  removal  of,  when,  by  whom,  etc.,  471 

in  case  of  certain  institutions  under  patronage  of  religious  bodies,  475 
in  case  of  certain  institutions  where  alumni  elect  trustees,  476,  475 
compensation  of,  trustees  fix,  471 
degrees,  honors,  etc.,   recommended  by.  471 
discipline  and  government,  enforced  by,  472 
who  constitutes,  472 
Location  of.  change  of,  472,  480 

copy  of  proceedings  of  meeting  for,  filed  with  secretary  of  state,  473 
notice  of,   must  show  what.  47) 

publication  of,  473,  165 
sale  of  property  upon,  etc..  472 
trustees  or  stockholders  make,  when,  472,  4S0 
vote  necessary  for,  472 
Mechanics,  shops  and  machinery  for  teaching.  472 
Military  academies.      (See  Military  Academies.) 
Name,    objects,    etc..    of    change    of, — 

amendment  of  charter  for  purpose  of,  480,  481 

certified  copy  of.  to  be  filed  with  secretary  of  state,  481 

in  case  of  certain  stock  companies,  480 
effect  of,  481 

in   case  of  certain  stock  companies,   481 
meeting  of  stockholders  of  certain  stock  companies  for,  480 

notice  of,  480 
petition  for,  in  case  of  certain  stock  companies,  480 
trustees  may  make,  4S1 
Patronizing    religious    bodies,    conferences,    etc.. — 

appointment,  etc.,  of  trustees  and  visitors  by.      (See  "  Trustees",  "  Visitors"  below.] 
conferences,  synods,  etc.,  may  become,  how,  475 
representation  of,  to  cease,  when,  475 
President  of.      (See  "Trustees"  below.) 
Private  corporations,  when,  472 
Property   of  —  amount  required,  471 
held   in  trust,  what  may  be,  471 

cannot  be  diverted  from  purpose  of  donor.  473 
increase  of,  authorized;  amount  of.  473 

statement  of  amount  and  purpose  recorded,  473 
filed   with    secretary    of   state.    474 
is  private  property  within  constitution,  473 
mortgage  of,  for  improvements,  473 
sale  and  distribution  of.  upon  dissolution,  480 

notice  of:   vote  as  to,  480 
sale  and  reinvestment  of,  473 

in  case  of  change  of  location,  472 
schedule  of,  to  be  filed  with  secretary  of  state,  471 
to  be  verified  by  trustees,  471 


INDKX.  b73 

(Referencei  ate  to  p 

SCHOOLS,  COLLEGES,  ETC.     Continued. 

what  may  be  held  lor  teaching  agriculture  and  mechanics,   17-! 
Scholarships.     (See  "  Capital  stock  "  above.) 
subscriptions  for,  power  to  receive,  47- 
Sto<  kholdei  a  of,, — 

assessments  against,  to  pay  debts,  etc.,  478,   178 
amount   of :   fixed  how,   IT'-i 

meeting  to  determine;   notice  of,    I7'.> 

statement     if  assets  and   Liabilities  to  Im-  submitted,    179 
enforcement  of,  47!) 
Students,  government   and  discipline  of, — 
faculty  to  enfon  e  rules,  <  tc,  472 

may  suspend  and  expel,  when,    172 
what  sufficieni   hearing,   17  .' 
trustees  enact   rules,  etc.,  for,  472 
Subscriptions  for,  enforcement   of,  471 
Trustees  of, — 

appointment  and  election  of, — 
at  large  by  trustees, — 

in  certain  institutions  under  patronage  of  four  <.r  more  religious  bodies,  474 
m  certain  institutions  whose  alumni  elect.  474 
by  alumni, — 

in  certain  institutions,  47*: 

board  of  trustees,  juager  of  election,  470 
conduct  of  election  for,  470 
returns  and  certificate  of  election,    170 
in    certain    institutions    not    under    patronage    of    four    or    more    religious 

bodies.  484 
in  certain  institutions   under   patronage  of   four   or   more   religious    bodies, 
177).  4  70 
by  ecclesiastical  bodies  of  religious  denominations,   477..  478 
in  case  of  institutions  under  patronage  of  four  or  more  religious  bodies,  474 
board  of, — 

in  case  of  institutions  Inning  alumni  representation,  470 

resolution  adopting  provisions  as  to,  47o 
in  case  of  institutions  under  patronage  of  four  or  more  religit  us  bodies,  474.  470 
resolutions  adopting  provisions  as  to,  474.  47-"> 
classification  of. — 

in  case  of  Institutions, — 

not  under  patronage  of  four  or  more  religious  bodies,  4vl 
under  patronage  of  four  or  more  religi*  us  bodies,  474 
under  patronage  of  one  religious    body,  47S 
voters  may  determine  as  to,  47!).  480 
tile  schedule  of  property,  verified,   when,  471 
hold  donated  property  in  trust,  471 

number  of  —  alumni  may  elect    what,  in  certain  institutions.  470 
at  large,   elected  by  trustees.  474 

in  certain  institutions  —  having  alumni  representation,   474.  470 
under  patronage  of  four  or  more  religious  bodies,  474 
in  case  of  certain  institutions, — 

not  under  patronage  of  four  or  more  religious  Indie-,   im 

under  patronage  of  —  four  or  more  religious  bodies,  474 
one  religious  body.  47 S 
six  or  move  religious  bodies.   47  1 
in  case  of  educational,  etc..  corporations,   113 

increase  of,  in  certain  institutions  —  having  alumni  representation,  474,  476 
not   under   patronage   of    tour   or   more   religion-    bodies,    484 
under  patronage  of  four  or  more  religious   bodies,  474 
under  patronage  of  one  religious  body,  4"s 
reduction  of  —  in  case  of  institution  under  patronage  of  six  or  i  _ 

bodies.  47.") 
when  religious  bodies  cease  to  pat  ionize.  473 
president  of  college,  etc.,  may  be,  ex  officio  when, — 

in    case    of    institutions  —  not    under    patronage    of    four    or    more    rel 
bodies.    484 
under  patronage  of  four  or  more  religious  bodies,  474 
under  patronage  of  one  religious  body.  47^ 
quorum,     in    case    of    institution  —  under    patronage    of    four    or    more    n 
bodies.   475 
under  patronage  of  one  religious  body,  47S 


874  INDEX. 

(References  are  to   pages.) 

►SCHOOLS,  COLLEGES,  ETC.—  Continued. 

term  of  office  of  —  in  ease  of  educational,  etc.,  corporations,   113 

in     case    of    institutions  —  not    under    patronage    of    four    or    more    religious 
bodies,  484 
under  patronage  —  of   four  or  more  religious  bodies,  474 
of  one  religious  body,  478 
of  six  or  more  religious  bodies,  474 
voters  may  determine  as  to  to,  479 
vacancies  —  governor  may  fill.,  when,  473 

patronizing  religious  bodies  may  fill,  when,  474 
Visitation  of, — 

alumni  elect  visitors  in  certain  institutions,  when,  476 
conduct  of  election  for,  476 

board  of  trustees  judges  of  election  of,  476 
returns  and  certificate  of  election,  476 
number  of,  476 
women   eligible.   476 
patronizing  religious  bodies  may  appoint   visiters,  when,  475 
appointment  of,  how  authorized,  475 
duties  and  powers  of,  475 

as  to  appointment  and  removal  of  officers,  professors,  etc.,  475 
attending  meetings  of  trustees,  475,  476 
states'  powers  as  to,  472 
SCHOOLS,  COMMON. 
Fines  go  to,  when, — 

in  case  of  evading  payment  of  tolls,  330 

hindering  persons  traveling  on  highways  or  refusing  to  turn  to  right,  etc.,  334 
refusal  by  insurance  companies  other  than  life  to  make  reports,  425 
under  provisions  as  to  quo  irarranto,  635 
Proceeds  of  sale  of  unclaimed  freight  go  to,  when,  87 

Penalties   for   violating   provisions   as    to   heating   baggage,   passenger,   etc..   cars   go>   to, 
when,  239 
SCIENTIFIC  SOCIETIES.      (See  also  Librart,  Lecture,  etc.,  Companies.) 
Powers  of, 

as  to,  in  public  hall,  etc.,  companies, — 
to  elect  directors,  etc.,  395 
to  hold  stock  in,   395 

liability  of,  as  stockholders,  395 
to  lease  theater,  113 
Trustees  of,  number  of  term  of  office  of,  113 
SCRIP  CERTIFICATES.      (See  Capital  Stock.) 
SEAL. 

Corporate.      (See  Corporate  Seal.) 
Official.      (See  Fees.) 
SECRETARY. 

Of  board  of  appraisers  for  railroads.      (See  Board  of  Appraisers.) 
Of  corporations.      (See  under  respective  companies.) 
appointment  of,  by  directors  or  trustees,  125 
bond  of,  form  for  regulations  as  to,  669 
compensation  of,  126 

form  for  regulations  as  to,  669,  671 
duties  and  powers  of  —  forms  for  regulations  as  to,  668,  671 
execution  of  mortgages,  etc.,  by,  127 
issuing  and  transferring  stock,   127.    142.    143 
election,  etc.,  of,  form  for  regulations  as  to,  668,  671 
garnishee  process  in  attachment  before  J.  P.  served  on.  625 
name  and  address  of,  reports  to  secretary  of  state  to  give, — 
in  case  of  corporations  for  profit,  17 
corporations  not  for  profit,   19 
foreign  corporations,   18 
services  of,  are  not  labor  within  §  6355,  127 
summons  may  be  served  upon,  when,  582 
in  actions  before  justice  of  peace.  623 
in  case  of  indictment  of  corporation,  639 

SECRETARY  OF  STATE. 
Certificates  of, — 

as  to  filing  reports  and  paying  franchise  tax.  etc..  19 

as  to  organization  of  free  banking  companies.   538 

authorizing  foreign  corporations  to  do  business,  under  §  148c,  10,  11 


INDEX. 

(Reference!  are  to  p. 

SECRETARY   OF  STATE  —  Continued. 

appea  >  from  decision  as  to,  II 
hearing  as  to,  company,  enl  ii  h ■< I  to,   II 
inu>i  state  what;  1 1 
rcvoc.il  ion  of,  375 
authorizing  foreign  corporation  to  do  business,  under  j    I48d,    12 
fees  for,  13 
niusi    show    what,    12 
revocation  of,  375 
Charter    or    certificate    of    incorporation    of    religious    BOciety,    restoration    of;    l< 

destroyed,  02 
Discretion  of — as  to  filing  amendments  to  articles,   102,  103 
as  to  —  lilincf  articles  of  incorporation,  94,   HH 
name  of  corporal  ion,   Mil 
Examiners  of  hanks  appointed  by, — 

in  case  of   banks  existing  in    1845,  526 
free  banking  companies,  543 

Fees   of.       (See    FEES:     FRANCHISE,    EXCISE  OB    PRIVILEGE    I  AX.  I 

as  to  amendment  of  articles,  9,  103 

incorporated  companies,  9 
for  acting  as  agent  of  foreign  corporation  for  service  of  proi — i,  13 

certificate  —  of  authority  for   foreign   corporation   to  'I"  business,    13 

of  abandonment  of  charter,  dissolution,  surrender  of  charter,  ceasing  busi- 
ness, etc..  20 
filing  or  recording  contracts,  etc.,  of  conditional  sales  to  railroads,  _''i7 
generally,  9,  10 
paid  into  state  treasury.  10 

in  case  of  acting  as  agent  of  foreign  corporation  for  service  "f  process,   L3 
certificates  of  authority  of  foreign   corporation  to  do   business,    13 
franchise,  excise,  or  privilege  tax.  19 
in  case  of  foreign  corporations,   11 
Forms  for  articles  of  incorporation  prescribed  by,  96 
Hearings  by  as  to  franchise  tax,  20 
Reports  and  returns  to.. — 

corporations  must  make.  when.   17.   1!) 
certain  companies  excepted,  20 
in  ease  of  foreign  corporations,  18 
under  section  118c.   10 
state  auditor  to  make,  81 
Service  of  process  on,  as  agent  of  foreign  corporation.   13 
What   filed   with,  recorded  by.  etc., — 

acceptance  of  provisions  governing  savings  and  loan  associations, 
amendment  of  articles,  102 
articles  of  incorporation.   100 

in  ease  of  consolidated  benevolent   and   charitable  societies.  4!»7 
consolidated   hydraulic  companies,   355 
consolidated   religious   societies,    191 
consolidated  railroad   companies,   -71 
life  insurance  companies,   364 

printing  and  publishing  houses  of  religious  societies,   495 
religious  endowment   fund  companies,  493 
union  depot  companies,  313 
where  —  certified  copy  of  stockholders'  meeting  for  division  i  f  turnpike  or  plank 
road  companies  is  filed  as,  :'.4:; 
copy   of    judicial    sale,    confirmation,    and    conveyance    of   turnpike    or    plank 
•  road  company  is  filed  as,  343 

bond  and  oath  of  commissioners  of  railroads  and  telegraphs,  2\ 
certificates. — 

as  to  capital   stock, — 

increase  of,   etc.,    166 

in  case  of  life  insurance  companies,  366 
railroad  companies,  210 
reduction  of,  etc.,    167 
subscription   to.    118 
as  to  change  of  counties  in  which  route,  etc.,  of  railroad  i-  located,    180,   181 

in  case  of  ship  canal  companies,  Mi*".  Is".  181 
as  to  extension  of  line,  change  of  termini,  etc.,  of  railroad-,  etc..  208 

location  of  termini   of  railroads   when   in  county   on  state  line.    178 

of  ship  canal  companies.  309.   17S 
organization  of  free  banking  companies,  538 


876  INDEX. 

(References   are   to   pages.) 

SECRETARY  OF   STATE  —  Continued. 

purchase    or    surrender    of    stock    of    leased    railroad    to    consolidated    com- 


pany, 


■>; 


transfer  of  property  of  certain  local  church  societies  to  parent  society,  490 
authorizing  construction  of  branch  railroads.   182 
curing  defects  in  consolidation  agreements  of  railroads,  273.  27-4 
of   corporations  filed  with  to  be  recorded,   100 
charter  of  foreign  corporations,  sworn  copy  of,  under   §   14Sd.   12 
consolidation  agreements.      (See   "  Articles   of  incorporation"  above.) 
contracts,  etc.,  of  conditional  sales  to  railroads,  266 
resolution  showing  change  of  route  or  termini  of  railroads,   180 
of  ship  canal  companies,  309,  180 
SECRET  SOCIETIES.      (See  Benevolent  Societies.) 
Articles  of, — 

fees  for  filing,  9 
must  be  copied  in  book,  113 
Members  of  —  rights  of,  to  vote,  113 

who  may  be,  113 
Mutual  benefit  associations.      (See  "Assessment  companies,"  "Fraternal  beneficial  asso- 
ciations" "Mutual  benefit  societies"  under  Insurance  Com- 
panies—  Life.     See  also  Religious  Societies.) 
not  subject  to  §§  3630a  to  3630f,  3631,  when,  393 
Trustees  of  lodges,  societies,  or  bodies  of.   113 

SERVICE  DIVIDEND  COMPANIES. 

Foreign  —  deposit  with  state  treasurer,  before  doing  business.  12 
sections  148c,  148d,  do  not  apply  to,  11,   12 
SERVICE  OF  PROCESS.      (See  also  under  respective  companies.) 
Agent  of  foreign  corporations  for,  12,  13 
in  suits  in  U.  S.  courts.  16 

must  be  by  actual  appointment  or  representation,  16 
secretary  of  state  may  act  as,  when,  13 
fees  for  so  doing,  13 
By  certified  copy,  in  case  of  action  for  re-issuing  lost  or  destroyed  stock  certificates,  146 
By  mail,  16 

By  publication,  when,  584 
in  case  of  action. — 

by  corporation  to  correct  records,  etc.,  603 

where  relief  is  to  exclude  defendant  from  interest  in  real  or  personal  property,  584 
in  case  of  appropriation  of  property.  584.  608 
in   case   of   corporations   failing   to   elect   officers,   and   having   no    place   of  business, 

etc.,  584 
in  ease  of  foreign  corporations,  584 
By  summons,  how,  on  whom,  where,  etc.. — 
in  actions  before  justice  of  peace,  623 
in  actions  to  correct  records.,  603 

to  sell  property  of  expired  real  estate  corporation,  94 
in  appropriation  proceedings,  607,  608,  609 
alias  writs,  608 

in  case  of  railroads  appropriating  school  lands,  615 
in  case  of  corporations  generally,  582 
as  co-defendants,  580 
defunct,  583 

in  hands  of  receiver,  578,  579,  583 
under  indictment,  638,  639 
in  case  of  foreign  corporations,  583  • 

dissolved,  584 

in  actions  before  justice  of  peace,  624 
on  managing  agent;   provisions  cumulative,  583 
what  constitutes,  584 
in  case  of  foreign  joint  stock  companies.  582 
Garnishment,  order,  and  notice  of,  in  attachment,  before  justice  of  peace,  625 
Return  of. — 

when  made  by  copy  left  at  place  of  business,  582 
when  made  on  —  managing  agent.  16.  584 
secretary  or  subordinate  officer,  582 
Substantial  compliance  with  statute  necessary,  16 

SET-OFF. 

Against  stock  subscriptions.  140,  141 
stockholders'  liability,  163 


INDEX.  87  7 

(  Referent  ei  ai  e  t"  panes.) 

SEWERAGE  COMPANIES. 

Liability  of,  570 
Sewers,  etc.,  of, — 

individuals  not  taxed  tor  without  consent,  570 
municipality  may  contract   for  construction  and  use  of,  570 
may  nol  use  except  with  consent,  etc.,  of  company,  570 
may  purchase  when,  .">7<i 
rales  for  use  of,  company  prescribes,  570 
Streets,  alleys,  etc.,  use,  etc.,  of  by, — 
authorized  in  municipalities,  570 
grant  of,  municipalities  may  make.  .">7o 
conditions  and  limitations  of,  5/0 

bond  for  fulfillment   of,  570 
does  not  limit  power  of  municipality  to  establish  and  maintain  -•  eei     570 
not  to  interfere  with  other  rights,  570 
term  of,  570 

renewal  of,  effect  <>f  refusal  to  make,  570 
SEXTON.     (See  Cemetery  Associations.) 
SHARES.      (See  Capital  Stock.) 
SHEEP. 

Kates  of  toll  for  —  over  bridges,  .'540 
over  turnpikes  or  plank  roads.  331 
SHERIFF. 

Duty  of,  as  to, — 

disposition  of  unclaimed  or  unidentified  corpse,  481,    182 
jury  viewing  premises  in  appropriation  proceedings,  till 
unlawful  sale  of  liquors  at  agricultural   fairs,    160 
May  ride  on  freight  trains,  when.  205 
SHIP  CANAL  COMPANY.      (See  CANAL  COMPANIES.) 

Abandonment  of  canal  —  releases  from  charter  liability  when.  .'Ill 

special  act  authorizing  is  valid.  311 
Agents,  employees,  etc.,  of,  duties  and  obligations  of,  railroad  laws  apply  to.  312 
Appropriations  of  property  by.     (See  Appropriation. ) 
Articles  of  incorporation  must  show  what.  312,  21 '» 
Boats,  barges,  etc.,  of — -may  acquire,  dispose  of,  etc.,  310 
Bonds  of  —  amount  of :    limitations  upon,  etc.,  311,  200.  312 
companies  may  issue.  311 
convertible  into  stock,  may  be,  311 
denominations  of.  .'51 1,  200 
interest  upon.  311,  200 
purposes  for  which  issued.  311 
redemption  of.  bonds   issued   for,  311 
sale  of  to  directors  below  par,  void,  312,  211 
secured  by  mortgage  or  otherwise,  311 

vote  of  stoi -khohlers  necessary.  311,  100 
Bridges,  may  relocate,  alter,  etc.,  when,  309,  310,  'Ml 

may  purchase,  condemn,  remove,  310 
Canals  —  may  appropriate  land   for,   309,  310 
may  construct,  operate,  etc..  310 

issue  bonds  to  construct,  extend,  etc.,  ">1 1 
Capital  Stock  of  —  amount  of:  limitation  upon,  312 
common  or  preferred  stock. — 

articles  may  provide  as  to,  312,  210 

amount,  par  value,  voting  power,  312,  210 
dividends  on.  paid  from  what.  312,  200 
increase  of  stock  may  be,  312 
preferred  may  be  converted   into  bonds.  312.  209 

privilege1  to  redeem  or  cancel  musl  be  reserved,  312,  200 
increase  of.  312 

meeting  of  stockholders  for,  312,  208 

directors  call:  must  state  what,  312,  208 
held  where:  notice  of.  312.  208 
vote  necessary  for,  312,  208 
sale  of  —  time,  place,  and  terms  of,  312,  200 

to  directors  below  par.  void.  312,  211 
subscriptions  to.  effect  of  change  of  route  upon.  309,  170.  181 
Causeway,  may  purchase,   condemn,   remove.   310 
Conduit,  may  divert,  relocate,  etc.,  when.  310.  311 
Consolidation  of.  when.  312 

laws  as  to  railroads  apply  to,  312 


878  INDEX. 

(References   are   to   pages.) 

SHIP  CANAL  COMPANY  — Continued. 

Culvert,  may  relocate,  etc.,  when.  310.  .'ill 
Dams,    wiers,   reservoirs,   aqueducts,   etc., — 
may  control  waters  by,  310 

may  erect,  maintain,  and  control,  310 
may  purchase,  appropriate,  remove,  etc.,  310 
Debts.      (See  "'Bonds,"  above.) 

limitations  upon  amount  of,  311,  200 
unfunded,  bonds  issued  to  pay,  311 
Directors. — 

duties  and  powers  of. — 

as  to  location  of  termini, — 

certificate  of  location,  when  in  county  on  state  line.  309,  168 
change  of,  309,   168,  170 

certificate  of.  when  county  of  location  is  changed,  170,  309 
as  to  increase  of  capital  stock,   197,  312 
liability  of;  for  negligence,  mismanagement,  etc.,  312.  211 

exonerated  from,  how,  312,  211 
purchase  of  stock,  bonds,  etc.,  below  par  void,  when,  312.  211 
Docks,  may  construct,  maintain,  lease,  etc.,  310 
Dry  docks,  may  erect,  operate,  lease,  etc.,  310 
Electric  light  plant,  may  acquire,  maintain,  operate,  etc.,  310 
Electric  wires,  conduits,  etc..  may  divert,  relocate,  etc.,  when,  310,  311 
Elevators,  may  construct,  maintain,  lease,  etc..  310 
Gas  pipes,  may  divert,  relocate,  etc.,  when,  310,  311 
Harbors,  may  construct,  maintain,  lease,  etc.,  310 
Highways. — 

may  divert,  relocate,  change  grade  of,  etc.,  when,  309,  310,  311 
use  and  occupancy  of, — 

agreement  as  to  manner,  terms,  and  conditions.  311,  177 
appropriation  of  right  to,  311,   177 
liability  for  damages,  public  or  private.  311,  177 
statute  of  limitations  as  to,  311,  177 
Income,  pledge  of  to  secure  bonds,  notes,  etc.,  311,  189 
Location  of. — 

certificate  of,  when  in  county  on  state  line,  309,  178 
change  of,  309,  178-181 

abandonment  not  authorized,  309,  178,  181 
appropriation  of  property  for,  309,  181 
causes  for,  309,  180,  181  * 

certificate  as  to  change  of  counties  of,  309,  180 
consent  of  stockholders  to,  309,  178 
damages  to  land  owners  for,  309.  181,  182 
directors  may  make,  309,  178,  181 
effect  on  stock  subscriptions.  309.  179,  181 
limitations  upon,  309,  178,  179.  181,  182 
mortgages  cover  changed  line,  309,  180 
notice  of  when,  309,  181 

resolution  describing  certified  to  secretary  of  state,  309,  181 
in  other  states,  powers  as  to,  309 
Machinery,  appliances,  etc.,  for  operation,  may  erect,  operate,  etc.,  310 
Obstructions  to  operations,  may  purchase,  condemn,  remove,  310 
Officers,  duties,  and  obligations  of,  railroad  laws  apply  to,  312 
•     Passages  over,  under,  or  through  canals,  may  make,  alter,  and  maintain,  309 
Patents  may  acquire  right  to  use.  310 
Piers,  may  construct,  maintain,  lease,  etc.,  310 
Pipe  lines,  may  divert,  relocate,  etc.,  when,  310,  311 
Police,  laws  relating  to  "  railroad  police"  apply  to,  312 
Power,  hydraulic,  electric,  etc..  may  produce,  lease,  supply,  etc.,  310 
Powers  of  —  to  borrow  money.  311.  200 

to  construct,  etc..  canals,  etc.,  309  et  seq. 
in  other  states,  309 
President,  office  of.  to  be  kept,  where,  312 
Principal  office  —  change  of,  312 

establishment  and  location  of.  312 
notice  of  establishment  or  change.  312 
office  of  president,  secretary,  treasurer  to  be  kept  at,  312 
records  of  proceedings  to  be  kept  at.  312 
Promissory  notes. — 

company  may  issue  for  borrowed  money,  311,  200 


INDEX.  879 

(Referenci  ■  ar<    to   p 

SHIP  CANAL  COMPANY  —  <  ontinued. 
face  value  of,  311,  200 
interest  on,  311,  200 
limitations  mi  amounl   of,  311,  200 
sale  to  directors  below  par,  void,  312,  -11 
secured  how,  31  1.  200 
Property  of, — 

mortgage  upon, — 

bonds  secured  by,  3]  1,  200 

vote  of  stockholders  accessary,  .'Ml.   196 

effect  of  change  of  location  <t  termini  u] 309,   180 

form  (if.  may   In-  in   what,   312,   -''Mi 
lien  from  when,  312,  200 

may  include  real  estate  ami  personal  property,  .;1J.  200 
record  of,  .",1-!,  200 
protection  of,  law  as  bo  railroads  apply  t".  312 
Railroads,  may  divert,  relocate,  change  grade,  etc.,  when,  309,  310,  Mil 
Real  estate,  may   purchase,  appropriate,  etc.,  309 
Records  of  —  kept   where,  3i2 

stockholders  may   inspect,   312 
Secretary,  office  of,  kept  where,  312 
Sections  3271  to  327S  apply  in  when,  309 
3283,  3286  to  3289  applv  to,  311.  312 
3308  to  33091).  3313,  3314  applv  to,  312 
3381  to  3386,  3388.  3388a.  3390  to  3392  apply  to,  312 
6414  et  scq.  apply  to.  311 
Sewer  pipes,  may  divert,  relocate,  etc..  when.  310.  Mil 
Steam  pipes,  may  divert,  relocate,  etc..  when.  310,  311 
Stockholders  —  may  inspect  records,  etc.,  312 
meetings  of, — 

to  increase  capital  stock.   312,   208 

directors'  call;  must  state  what,  312.  208 
held  where,  312,  208 
notice  of,  312.  208 
vote  necessary  for.  312.  208 
to  issue  bonds,  mortgage  property,  etc..  311,  196 
notice  of.  311.   196 
vote  necessary.  311,   196 
Streams,  water-courses,  etc.. — 

may  control  how;  to  what  extent.  310 
divert  course  of  when,   310 
enter  upon  and  occupy.  311 
Telegraph  and  telephone  lines,  wires,  conduits,  etc., — 
may  acquire,  maintain,  operate,  etc.,  310 
may  divert,  relocate,  etc..  when,  310.  311 
Terminals,  may  construct,  maintain,  lease,  etc.,  310 
Treasurer,  office  of  to  be  kept  where.  310 
Trestle,  may  purchase,  condemn,  remove.  310 
Tunnel,  may  alter,  move,  relocate,  etc..  when.  311 
Warehouses,  may  construct,  maintain,  lease,  etc..  310 
Water,  may  appropriate  or  purchase  righl  to.  310 

may  control  and  regulate,  in  rivers,  lakes,  etc..  310 
use,  lease,  or  sell.  310 
Water  lots,  may  lay  out.  lease,  etc..  310 
Water  pipes,  may  divert,  relocate,  etc..  when.  310.  311 
Wharves  —  may  constrnct.  maintain,  lease,  etc.,  310 
may  purchase,  condemn,  remove,  310 
SIDINGS,  SWITCHES,  ETC.      (See  Railroads.) 
SIGNAL  COMPANIES.     (See  Messenger  or  Signal  Companies.) 

SITUS. 

Of  corporation.      (See  Corporate  Domicile.) 

Of  stock,  upon  legal  process,  149 
SLACK  WATER  NAVIGATION  COMPANIES.      (See  Canal  Compami  Sj  Ship  Canal  Com- 
panies.) 
SLANDER. 

Corporation  may  sue  for,  108 
SLED  OR  SLEIGH. 

Rate  of  toll  for  —  over  bridge,  346 

over  turnpikes  or  plank  roads.  331 


880  INDEX. 

(References   are   to   pages.) 

SLEEPING  CAR  COMPANIES. 

Agents,  employees,  officers,  etc.,  of.      (See  "Officers"  below.) 

Agreements,  contracts,  leases  with,  railroads  must  furnish  copies  of,  to  commissioner  of 

railroads.  2!) 
Books  and  papers  of,  examination,  etc.,  of  by  state  board  of  appraisers  and  assessors,  75 
Definition  of;   includes  what,  74 
Excise  tax  on,  amount,  levying  of,  etc.,  76 

collection  of ;  service  of  process,  etc.,  75.  76 
exempted  from  provisions  of  "  Willis  Law,"  20 
exempted  from  §  2744  as  to  taxation.  74 
failure  to  pay.  76 
Foreign,  section  148c  does  not  apply  to,  11 

.Managing  agent,  general  manager;  chief  officer  in  state.      (See  "Officers"  below.) 
Officers,  etc.,  of. — 

examination  of  —  by  commissioner  of  railroads.  29 
by  state  board  of  appraisers  and  assessors,  75 
reports  made,  filed,  etc.,  by  whom,  75 
Real  estate  of,  taxation  of.  locally,  76 
Reports  of,  to  state  auditor.- — 

blanks  for,  auditor  prepares  and  furnishes,  74 
duties  and  powers  of  officers  as  to.  74 
failure   or   refusal   to  make,    75 
must  show  what  as  to, — 

capital  stock:   value,  shares,  etc.,   74 

character  and  nature  of  company.  74 

name  of  company.    74 

officers,   name  and  address..   74 

organization,  laws  and  state  of,  74 

principal  office,  location  of,  74 

real  estate  of,  74 

route  or  lines  of,  75 

stockholders  —  name,  address,   shares.   74 

SLEEPING  CAR  CONTRACTS. 

Power  of  railroad  companies  as  to,  177 
SOCIETIES  FOR  PREVENTION  OF  CRUELTY.      (See  Humane  Societies.) 

SOLDIERS. 

Mutual  benefit  societies  of  ex-union.      (See  Insurance   Companies  —  Life.) 
provisions  of  §§  3630a  to  3630f,  3631  do  not  apply  when.  393 

SOLDIERS'  MONUMENTS. 

Cemetery  associations  may  take  charge  of.  358 

Protection  of,  laws  as  to  cemeteries  apply  to.  358 
SOLDTERS-  MONUMENTAL  ASSOCIATIONS. 

Cemetery  associations  may  act  as,  358 
SOLICITOR'     (See  City  Solicitor.) 
SPARK  ARRESTERS.      (See  Railroads.) 
SPECIAL  LAWS. 

Charters  granted  by.  not  accepted  or  acted  on  repealed.  92. 

Corporate  powers  —  cannot  be  conferred  by.  2 
may  be  surrendered  by,  311 

Effect  of  general  laws  on  companies  created  by.  91 

Insurance  companies  organized  under,  subject  to  examination,  etc..  32 

Judicial  notice  of.  courts  will  not  take  when.  92 
SPECIMENS.  ETC.      (See  Museum  Companies.) 
SPEED.      (See  Railroad  Trains:   Street  Railroad  Companies.) 
SPRINGFIELD.      (See  Municipal  Corporations  —  "  Cities  2d  class  3d  grade  A") 
STAGE  COACH. 

Rate  of  toll  for.  331 
STAGE  COMPANIES. 

Actions  against,  brought  where,  580 
STAT1-:. 

Action  against,  to  enforce  stockholders'  liability.  142 

Cannot  assume  debts  of  coropration.  1 

become  joint  owner  or  stockholder  in  corporation,  1 
give  or  loan  its  credit  to  corporation,   1 

Power  of  —  as  to  licensing  foreign  corporations,  376 
as  to  taxation  of  national  bank  stock,  63 

Rights  of,  as  a  stockholder.   125 

transfer  of  stock  owned  by,  144 


[NDEX.  881 

( References  ai  e  to  pa 

STATE  AGRICULTURAL  FUND. 

Expenses  of  state  board  of  agriculture  paid  from  when.  1 19 
Ohio  state  board  of  agriculture  baa  disposal  of,   149 

Purchase  money,  etc.,  for  escheated  property  reclaimed  by  heirs  recovered  from,  11!) 
STATE  AUDITOR. 

Certificate  of,  as  to  organization  of  free  banking  eompani< 
Certain  companies  to  return  aggregate  of  tax  returns  to,  56 
Duties,  powers,  etc.,  of, — 

as  to  appointment  of  examiners  of  hank-  existing  in  LS46,  520 
examiners  of  free  banking  companies,  543 
register  of  banking  department,  536 
as    to    apportionment      of     value     of     properly     for     taxation, —  in     ea -e     of    expreM, 
telegraph,  and   telephone  companies,  69-71 
certifying    assessments    for    expenses,     etc.,    of    commissioner    of    railroad     com- 
panies, 20 
circulating  notes  of  hank.-,  etc.,  536,  5.'57 
enforcing  provisions  of  law  as  to  banks,  etc.,  .">.">7 
examination  of  condition  of  safe  deposit   and  trusl  companies,  512 

of  reports  of  savings  and  loan  association-,  .">u7.   508 
excise  tax,  73,  70,  80 

forms  —  for  listing  personal   property- — for  taxation.   01 

excise  tax,  reports  for,  etc.,  of  electric  light,  gas,  messenger  or  signal,   natural 
gas,  pipe   line,   railroad,   street,   suburban   or    interurban    rail- 
road,  union   depot,   and    water    works   companies,    77 
equipment  and  freight  line  companies,  72 
express,  telegraph,  and  telephone  companies,  69,  77 
sleeping  car  companies,  74 
publication  of  reports  of  safe  deposit  and  trust  companies,  512 

of  savings  and   loan  associations.   507,   508 
sale  of  securities  to  redeem  bank  notes.  536 
unclaimed  freight,  warrant   for  proceeds  of  sale  of.  SS 
Fees  of,  for  collecting  excise  tax,  73,  76,  81 
Member  of, — 

appellate  tribunal  in  case>of  foreign  corporations.    11 
state  board  of  appraisers  and  assessors,  69,  72,  75,  7  s 
state  board  of  equalization  for  banks,  81 
for  railroads,  82 
Reports  by,  to  secretary  of  state,  81 
Reports  to  be  made  to,  etc.. — - 

by  banks  existing  in  1845,  526 

boards  of  appraisers  or  railroads.  66 

electric  light,  gas,  messenger  or  signal,   natural   gas,  pipe  line,   railroad,   street, 
suburban  or  interurban  railroad,  union  depot   and  water  works 
companies.  77 
equipment   (R.  R.)  and  freight  line  companies,  71 
express,  telegraph,  and  telephone  companies,   68.   77 
safe  deposit  and  trust  companies,  512 
savings  and  loan  associations,  507,  508 
sleeping  car  companies.  74 

state  board  of  appraisers  and  assessors,  70.  73.  76.  SO 
STATE  BOARD  OF  AGRICULTURE.      (See  Ohio  State  Hoard  of  Agbicultube.) 
STATE  BOARD  OF  APPRAISERS  AND  ASSESSORS. 
Adjournments  of,  69,  72,  75,  79 
Consists  of  whom.  69.  72.  75,  78 
Contempt  of.  70.  73,  76,  80 
Duties  and  powers  of. — 

as  to  appraisement,  etc.,  of  property;  hearings  relating  to;  correction  of  assessments 
or   valuation:    examination   of   officers,    agents;    production    and 
inspection  of  books,  etc.;   securing  necessary  information  upon 
failure  to  report,  ct<-. 
in  case  of  electric  light,  gas.  messenger  or  signal,  natural  gas,  pipe  line,  railroad. 
street,  suburban  or  interurban  railroad,  union  depot  and  water 
works  companies,   78-80 
equipment  (R.  R.)  and  freight  line  companies.  72.  73 
express,  telegraph,  and  telephone  companies.  09.  70.  78-30 
sleeping  car  companies,  75.  76 
has  powers  of  county  auditors  under  §§  2781  to  27S5,  70 
Meetings  of,  09.   72.   75.   78 
Minutes  and  proceedings  of,  69.  72.  75.  78 
President  of,  69,  72,  75^  78 


882  INDEX. 

(References  are  to   pages.) 

STATE  BOARD  OF  APPRAISERS  AND  ASSESSORS  —  Continued. 

Report  of,  70,  73.  70.  SO 

Secretary  of,  70,  72,  75,  78 
STATE  BOARD  OF  EQUALIZATION. 

Duty  of,  as  to  apportioning  expenses  of  offices  of  commissioner  of  railroads,  etc.,  20 
STATE  BOARD  OF  EQUALIZATION  FOR  BANKS. 

Consists  of  whom,  81 

Copy  of  return  of  banks  to  be  sent  to,  04 

Duties  and  powers  of,  as  to  valuation  of  bank  shares,  81 

Meetings  of,  81 

Valuation  of  shares  as  fixed  by  auditor  sent  to,  04 
STATE  BOARD  OF  EQUAL rZATION  FOR  RAILROADS. 

Board  of  appraisers  to  forward  reports,  papers,  etc.,  to,  07 

Consists  of  whom,  82 

Duties  and  powers  of  as  to  equalizing  property  of  railroads,  82 

Meetings  of.  82 

Not  a  board  of  appraisers.  82 

STATE  BOARD  OF  PUBLIC  WORKS. 

Duties  and  powers  of,  as  to  railroad  bridges  over  canals  and  navigable  waters,  212 

STATE  HOUSE. 

Commissioner  of  railroads  has  office  in,  25 
Superintendent  of  insurance  has  office  in,  31 
STATE  TREASURER. 

Appoints  examiner  of  banks  existing  prior  to  1845,  520 

of  free  banking  companies,  543 
Deposits  with, — 

required  —  in  case  of  certain  foreign  companies,  12 

in  case  of  insurance  companies,  35 
securities  of  insurance  companies, — 

coupons  attached  to  delivered  how,  35 
withdrawn  how,  35 
Duties,  etc.,  of. — 

as  to  circulating  notes  of  banks,  etc.,  535-537 
Member  of. — ■ 

appellate  tribunal  in  case  of  foreign  corporations,  11 
state  board  of  appraisers  and  assessors,  09,  72,  75,  78 
state  board  of  equalization  for  railroads,  82 

STATE  TREASURY. 

Payments  from  —  in  case  of  insurance  department  cannot  exceed  specific  fees,  etc.,   col- 
lected,  32 
unclaimed  freight,  proceeds  from  sale  of,  when  and  how,  87 
What  must  be  paid  into, — 

assessments  against  railroads  for  expenses  of  commissioner  of  railroads,  26 
excise,  franchise  or  privilege  tax  on  corporations,  11,  19,  73,  76,  80 
fees  of  —  secretary  of  state,   10 

superintendent  of  insurance,   31,  35 
moneys  from  sale  of  unclaimed  freight,  etc.,  87 
moneys  from  suits  for  penalties,  etc.,  relating  to  reports,  etc.. — 

in  case  of  electric  light,  gas,  messenger  or  signal,  natural  gas,  pipe  line,  street, 
suburban  or  interurban  railroad,  union  depot,  and  water  works 
companies,  79 
equipment  and  freight  line  companies.  73 
express,  telegraph,  and  telephone  companies,  70,  79 
insurance  companies,  37 
railroad  companies,  30,  79,  238 
sleeping  car  companies,  75 

STATEMENTS.      (See  Reports.) 
STATIONS.      (See  Railroads.) 
STATUTE  OF  FRAUDS. 

Guaranty  of  dividends  by  third  person,  not  within  when,  170 
'    Lease  of"  railroad  for  more  than  three  years  must  be  acknowledged,  204 

STATUTE  OF  LIMITATIONS. 

As  to  appropriation  of  property,  compelling  railroad  to  make.  190 

cemetery   grounds    of    educational    and    religious    corporations    sold    under    order    of 

court:  lot  owners'  rights,  488 
damages  for  animals  killed  by  railroad,   217 
damages  for  change  of  route,  etc..  of  railroads,  1S1 
of  ship  canal  companies,  309,  181 


INDEX. 

STATUTE  OF  LIMITATIONS-    Continued. 

damages      for  construction  ol  bridge  by  Ohio  Rivei  bridge  companies,  •J)7 

for  construction  oi  telegraph  lines  over  private  property,  by  pi  i 

for  diverting  stream  l>.\   railroad,   195 

for  misconduct  of  officers  or  directors  resulting  in  forfeitun 

for  use  of  highways,  Btreets    etc., — 
in  case  of  railroads,  188,  190,  191 
i  racks  arc  completed  when,  191 
unauthorized    use,    191 
in  case  of  ship  canal  companies,  311,   188 

for  usurping  office,  franchise,  etc.,  <'.."._: 
dividends,  ad  ion  to  colled .  170 

lien  of  equipment   bonds,  against  consolidated  company,  -'<'• 
malfeasance  of  directors,  132 

i :hanics'  liens,  applies  to  whom,  B6 

quo  warranto  proc lings,— - 

against   ollicer,  G34 

commences  1<>  run  when,  635 

applies  to  suit   ordered  by  legislature,  635 

for  exercise  of  right  ot  franchise  under  charter,  834 

for  forfeiture  of  charier,  etc.,  <>:;( 

for  misuse  of  franchise,  •'.:' I 

relative  to  exclusive  use  of  street,  635 

statute  dues  not  run  against   state's  claim  to  land-.  635 

statute  pleaded  how.  i;."i."> 
railroads,   suit    against    one   jointly   and    severally    liable   will    uol    Bave  agaii 

other.  JOT 
real  estate  of  religious  and  charitable  associations,  40ft 
rights  of  parties  not   signing  railroad  readjustment   agreement, 
stoek   subscription,  enforcement  of  —  by   corporation.    138 

by  creditors,  140 
stock  transfers.    14."> 

statute  begins  to  run  when.    1  U>.   146 
stockholders'  liability.  158,  161 

as  against  executor  or  heirs.    161 

as  partners   in    unauthorized   bank,   ."cili 

effect  of  bar  as  to  sonic,  upon  liability  of  others,  lfil 

limitation  in  insurance  policy  does  not   apply  to.   161 
streets,  etc.  statute  doe-  not   run  against  obstruction  of,  195 
turnpikes  and  plank  roads,  demanding  unlawful  toll.  :;:;:!.  :'•'■',  I 

unreasonably  detaining  travelers,  333,  334 
Effect  of  reversal  or  failure  of  action.  .">7S.  .">7!> 

STEEL. 

Iron  companies  may  manufacture  when,   ~>d7 

STIPULATED  PREMIUM  PLAN.      (See  Ixstraxce  Companies  —  Life.) 

STOCK.      ( See  Capital  Stock.  ) 

STOCKHOLDERS.      (See  also  respective  companies.) 

Acquiescence  of.  effect  upon  liability  of  directors  for  adding  new    feature  to  business,  133 

Acts  of.  are  corporate  act-  when.    lt>:> 

Admissions  by,  cannot  charge  company.   1:11 

Amendment  to  charter,  acceptance  and  acquiescence  in.  93 

Annual  statements  for  —  corporations  to  make.   168 

must    show   what.    168 
Appeal  by.  from  judgment  against  corporation.  150 
Application  of,  for  receiver.   135 
Assent  of,  to.      i  See  also  "  Vote,  what   necessary,"  below.) 

agreement  for  use  of  street  railway  track-  bj  suburban  or  interurban  railway,  .34 

change  of  purposes,  when.  \02.  103 

issue  of  bonds  convertible  into  stock,   151 
of  preferred    -lock.    165 

mortgage  —  filed  with  county  recorder  when,   151 
what   is  con-trued   as.    151 

reduction  of  capital  stock  or  its  par  value 
By-laws     made    by,    when,    for    distribution    of    earnings    among    workmen,    patrons,    and 

shareholders,   121,   122 
Capital  stock  held  by.  limitation  on  amount  of,  in  certain  cases,  121 
Certificates  of  stock  issued  to,  142 

person  may  become,  without.  144 
Corporate  existence  cannot  be  questioned  by,  99 


884  INDEX. 

(References  are  to   pages.) 

STOCKHOLDERS  —  Continued. 
Cross-petitions  by,   134 

Deceased,  duty  of  officers  as  to  transfer  of  stock  of,  145 
Directors. —  election  of,  by.      (See  Directors.) 
liability  of,  to,  when,  132,  133,  170 
must  be,  128 

not   required   in  case   of  public  ball,   etc.,   companies  where   stock  held  by  com- 
pany not  having  capital  stock,  395 
relation  of,  to,  nature  of,  132 
Division  of  capital  among,  power  of  directors  as  to,  132 
Equitable, — 

action  against  to  collect  stock  subscription,  141 

to  collect  stockholders'  liability,  155,   158 
actions  by, —  against  directors,  132,  133 
for  refusal  to  transfer  stock,    145 
Error,  may  prosecute  to  judgment  against  company  when,   150 
Evidence  as  to  who  is,  books  are,  144 
Inspection  of  books,  records,  etc.,  by,- 142,  146 

in  case  of  foreign  corporations,   15 
Inspectors  of  elections  appointed  by,  when,  122 
Liability  of, — 

after  transfer  of  stock,  155,  156 

for  unpaid  stock  subscriptions,  140 
agreement  as  to — effect  of,  upon  funds  secured  by  mortgage  containing,  197 

is  not  defense  to  action  to  enforce  subscriptions  when,  142,  197 
amount  of  statutory  —  amount  unpaid  on  stock,  2,  3 

sum  equal  to  stock  held,  2,  3,  152 
attaches  when,  154 

bankruptcy,  is  provable  debt  in,  when,  164 
before  entry  of  transfer  on  books,  156 

bond  of  indemnity  against;  rights  of  creditors  under,  158 
contract  to  release  void,  154 
corporations  cannot  control,  153 
cannot  pledge,  etc.;  112,  153 
holding  stock  are  liable  as,  153 

in  case  of  corporations  not  having  capital  stock,  holding  stock  in  hall,  etc., 
company,  395 
dues  from  corporations,  secured  by,  2 
enforcement   of, — 

account  of  property  and  obligations,  159 
against  estate  of  deceased  stockholder,  163 
non-resident,  162,  163 
stockholder  of  foreign  corporation.  157 
appeal  by  vendor  of  stock,  effect  of,  161 

effect  of  payments  made  after,  164 
application  of  corporate  assets,  155,  156,  159 
attachment  lies  for,  162 
attorneys'  fees,  in  action  for,  163 
burden  of  proof  as  to  being  stockholder,  163 
complaint  filed  where,  158,  162 
proceedings  under,  158,  159 
consolidation  of  actions  for,  164 
contest  of  claims,  163 

counter  claims,  etc.,  against,  153,  156,  163 
continuance  of  action  for,  when,  163 
creditors, —  cannot  obtain  priority  in,  160 
contest  of  claims  by,  163 

failure  to  present  claims,  etc.,  effect  of,  159 
good  faith,  etc..  in  bringing  action,  160 
cross-petition  in  action  for  dissolution  for,  598 
defenses  to,  156,  157 

agreement  for  extension  of  time  is  not,  when,  156 

becoming  stockholder  after  liability  incurred  is  not,  when,   157 

cancellation  of  subscription  is  not.  when,  157 

failure  to  issue  stock  certificate  is  not,  when,  157 

fraud  in  former  settlement  of  claim  sued,  is  not,  when,  157 

in  procuring  stock  subscription  is  not,  when,   157 
lien  claimed  in  another  case,  is  not,  when,  157 
payment,  by  new  notes  is,  when,  157 
saie  of  stock  with  indemnity  against  loss  is  not  when.  157 


[NDEX. 

( Refereno  i  ar<- 

STOCKHOLDERS  —  Conl  inucd. 

sett  Inn. 'lit    <>l    claim    LB    not    w  lien,    I  .">7 

wlicii  claims  are  not  in  judgment,  l">7 
dismissal  of  acl  ion  for,  161 
equities  between  company  and  creditors,  156 
between  all  parties,  adjustmenl   of,    L59 
incorporators'   Liability  enforced    in   same  action,    113,    160 
insolvency  of  corporation,   necessary   to,    L69 
insolvency  of  stockholders,  effecl  of,  etc.,  163 
joinder  of  ad  ions  in,   1 19,   160 
judgment  for,  when,  153,   Hit 

finality  of.    Kit 
nature  of  acl  ion   for,   100 

non-residence  of  stockholders,  effecl   of.  etc..   162 
notice  to  non-residenl    stockholders,  when,    159 
notice  to  present  claims,  l">!i 
parties  to  action  for,   KiO,  Kil 
pleadings  in  action  for.  1(11.  162 
presumption  as  to  regularity  of  proceedings,  163 
receiver.      ( See  Receiver.  ) 
referee.      (See  Referee.) 
right  of  action  accrues  when,  154,  155 
right  of  stockholders  to  contribution,  1  •">*',.   163 
statute   of   limitations   as   to,    L58,    Kil 
■unpaid  subscriptions  collected    first,    159 
for  companies,  obligations  indorsed   at   their  request,   154 
irregularities  in  organization,  523 
negligence  and  mismanagement   of  directors,   132 
over  issue  of  bonds,  etc.,  200 
stock  sold  by  company  below  par.   141.   153 
unpaid  stock  subscriptions.  137,   142 
ultra  vires  acts  of  corporation,  extent   of.    K>7 
in  absence  of  statute,   153 
in  case  of  foreign  corporations.  17.   157 

increase  of  stock  under  act  of  1865,  157 
in  de  facto  companies,  142,  153 
in  case  of  holders  of  preferred  stock.  90 
legislature  cannot  waive,  3 
nature  of,   152 

order  of  liability  on  account    of.    1  ■">•"> 

property  transferred  by  stockholder   not    subject    to.    104 
securities,  application  of  proceeds  of,  104 
set-off  against,    103 
settlement  of  corporate  liabilities,  — 

agreements  between  stockholders  as  to.    154 
effect  of.  upon  dissenting  creditor.  154 
notes  given  in,  not  a   credit   on   liability  when,   1  >4 
voluntary,  by  stockholder,  righl   to  contribution,   154 
statute  of  limitations  as  to.  158,  K'.l 

effect  of  bar  of  as  to  some,  upon  others.    Kil 
limitation  in  insurance  policy  .Iocs  not  apply  to.   101 
waiver  of,  154 
who  are  subject  to,  152,  158 

assignees  and  assignors  of  stock  when.   155 
corporations  holding  stock.   144 

in  case  of  corporations  not  having  capital  -lock  holding  Btock  in  public  hall 
companies.    395 
equitable  owners,  when.  155,  158 
infants  holding  stock,  when,  153 
legal  owners,  152,  158 
legatee    of    stock    when.    158 
pledgee,  when,   153,  158 
preferred    stock    holder,    153 
trustees  when,  158 
List  of.      (See  "Names:') 
Meetings   of  — 

regular  —  forms  for  regulations  as  to.  668 
notice  of,  form  for,  000 

number  of  directors  may  be  changed  at.   168 
order   of  business   at;    forms  of  regulation-   establishing,    000 


8S6 


INDEX. 

(References  are  to  pages.) 


STOCKHOLDERS  —  Continued. 

regulations  as  to  —  forms  for,  668 

may  provide  what  as  to.  137 
to  adopt  or  amend  regulations,   136 

notice   of:    vote   necessary,    136 

to  amend  articles  of  incorporation,  102 

notice  of:    vote   necessary,    102 

forms  for,  and  for  waiver  of,  661 
to  change  number  of  directors,  168 

vote  necessary,  168 
to  elect  officers,  etc.,   123 

notice  of,    123 
to  increase  capital  stock,  number  of  shares,  etc.,  165 
directors'  call.  165 
notice  of:  waiver  of,  165 
to  organize  corporation.   118 
must  be  held  in  state,   119 
notice  of:  failure  to  give,  etc.,  118.  119 

form  of  and  for  waiver  of,  665 
subscriptions  of  required  stock  essential,   119 
record  of,  in  books,  form  for,  675.  676 
Motives  of, —  in  actions  for  accounting,  etc.,  133 

in  actions  to  compel  inspection  of  books.   146 
Names  of.  list  or  statement  as  to,  — 

corporations  limiting  votes  of  stockholders,  file  with  county  recorder,  121 
for  use  of  inspectors  of  election,  122 
furnished   annually   to    stockholders,    168 
Non-resident,  notice  to,  of  action  to  enforce  liability  of.  159 
Officers,  executive,  must  be,  128 

Of  foreign  corporations.      (See  Foreign  Corporations.) 
Powers  of,  over  business,  property,  etc..  129 
Preferred  stock  may  be  authorized  by,  95 
Quorum,  regulations  may  provide  as  to,   137 

form  for  regulations,  668 
Residence  of.      (See  also  "Names,"  above.) 
Rights  of  — 

as  to  accountings.   133 

conversion  of  property,   132,   134 
cutting  prices,  134 
disposing  of  his  stock,   147 
enforcing  duties  of  directors.  134 
impeaching  judgment   against  company,   1 10 
increase  of  capital  stock.  166 

mismanagement  or  negligence  of   directors,   132,   133 
scope  of  corporate  acts  and  powers,  107 
Rights  of  state  as  a,  125 

Sale  of  corporate  property,  vote  of,  not  necessary  when,  95 
Stock  held  by;  number  of  shares  of,  — 

list  showing  shares  — furnished  inspectors  of  election.  122  . 

statement  or  report  showing,  in  case  of  corporations  limiting  vote  of  stockholders,  LSI 
Ultra  vires  acts,  ratification  of,  by,  does  not  bind  company,  107 
Vote.      (See  Capital  Stock  —  "  Voting  power  of.") 
articles  of  incorporation  may  limit  right  of,  121 
forms  for  regulations  as  to,   669 
sale  of,  by,  is^  illegal.  124 

what  necessary.      (See  "  Meetings  of,"  above.) 
What  constitutes,' 144,   158 

holder  of  convertible  bonds  is  not,  152 

of  preferred  stock  is  not,  when,   152 
Who  cannot  become  —  corporations,  when,  109 

state,  cities,  counties,  towns,  townships,   1,  2 

STOCKHOLDERS  BILL. 

Estoppel :  suit  in  one  capacity  not.  to  suit  in  another,  166 

Motives  in  connection  with.  133 

Non-concurrence  in,  effect  of,   134 

Parties   to,   133 

Puppet  of  competitor.  133 

To  enforce  duties  of  directors,  134 
STOCKHOLDERS'  LIABILITY.      (See  Stockholders.) 
STOCK  RECORDS.     (See  Capital  Stock.) 


INDEX. 

I 1 :  i  i  • 

STOCK   YARD  COMPANY. 

Duty  of,  as  to  cattle  shipped  from  Bouthem  points,  575 

Powers  of,  570 

Railroad,  lease,  purchase,  etc.,  of,  570 

consent  of  stockholders  of  both  companie    aece    ary,  "«71 
length  of,   limitations  as  to,  570 
STON  E. 

Freighl  charges  on  undressed,  264 
STONE  QUARRY. 

Owner  or  operator  may  construct  private  railroad  when,  240,  -'II 
Track  or  switch  to,  duty  of  railroads  to  switch  cars  of  othei  companiee  over, 
STONE  QUARRYING  COMPANIES.     (See  Mining  Companies.) 
STORAGE.      (See  FREIGHT.) 

STORE-ROOMS  COMPANIES.     (See  Building  Companies.) 
STREAMS,  WATER  COURSES,  ETC.    (See    Bridges:   Canaxs:    Navigable  Watebs:    Rail 

roads:   Ship  Canal  <  Iompanies.) 
STREETS,  HIGHWAYS,  ALLEYS,  ETC. 

Abandonment  or  surrender  of,  to  railroads,  is1.).   L94 

Assessments  for,  railroad  lands  subjed   to,   L88 

Control  of,  cannot  be  relinquished  or  granted  away.  189,  194 

Crossings  over.      (See  FREIGHT  Ways:    INCLINED-PLANE   RAILWAY  COMPANIES:    RAILROAD 

Crossings.) 
Diversion  of.      (See  Railroad  CROSSINGS.) 
Extending  or  opening  across   railroad    property,  — 
appropriation  of  right  of,  43 
estoppel  to  deny  right  of,  when,  4.'!.   190 
Freight  way  or  private  railroads  over.     (See  Freight  Wats.) 
Franchise  rights  in.      (See  "I  se  and  occupancy,"  below.) 

right  to  use,  for  pipes,  etc.,  is.    12 
Grade  and  grading  of,  before  construction  of  streel    railway,  •")() 
Improvement    of  — 

in  case  of  turnpikes  or  plank   roads  in  municipalities,  332 

assessment  and  cost  of.  332 
power  of  agent  of  corporation   to   sign   petition    for,   131 
Lighting  of.     (See  Municipal  Corporations.) 
Obstructions  of.     (Sec  Railroad  Crossings.) 

statute  of  limitations  does  not  run  against,   195 
Travel  on,  hindering  or  obstructing  persons   in,   334 

law  of  road  as  to;  turn  to  right,  334 
Use  and  occupancy  of.      (See  under  respective  companies.) 

by  municipalities  —  for  gas  pipes   upon    failure  of    gas   company   to  make   required 

extensions,  41. 
exclusive  right  to,  express  authority  necessary  to  grant   of,  42 
right  to,  is  a  franchise,  42 
STREET    RAILWAY    COMPANIES.      (See    Common     Carriers:     Common     Carrier 

P  ANTES.) 
Abutting  lot  owners  — 

actions  by:  joinder  of  parties  in.  299 
cannot  enforce  forfeiture  of  grant,  298 
consent  of.      (See  "Grant    for  road,"  below.) 
interference  with   right   of  access  of  — 
by  tracks,  trolley  poles,  etc.,  299 
temporarily,    by    construction.    290 
.  to  markets,  299 
rights  of.      (See  "  Grant  for  road,"  below.) 

as  to  use  of  tracks  by  other  companies.  277 
in  highways  outside  municipalities,  307 
in  streets,  etc. —  appropriation  of.  302,   307 
when  private  rights  are  impaired.   296 
not  impaired.  50 
trees  in  streets,   200 
Actions  against,  — 

before  justice  of  peace.   §  047S  does  not  apply  to.  624 
brought  where.  546 
Agents,  emplovces.   etc.      (See  "Officers,"  below.) 
Agreements  with  other  companies  permitted,  when,   52,   "t 
'    in  case  of  suburban  and  interurban  companies   52.  54 
Appliances  of,  injuring  or  meddling  with.  636 


888  INDEX. 

(References   are   to   pages.) 

STREET   RAILWAY   COMPANIES  —  Continued. 

Appropriation  of  property  for.      (See  Appropriation.) 

Bids  and  bidders  for  grant.      (See  "  Grant  for  road,''  below.) 

Bonds  of.      (See  Common  Carrier  Companies.) 

amount  of,  limitations  on,  200 

company  may  issue,  200 

interest  on :   cumulative  when,  200 

par  value  of,  200 

purposes  for  which  issued,  200 

secured  how,   200 
Books  and  papers  of,  examination,  etc.,  of,  by  state  board  of  appraisers  and  assessors,  79 
Bridges,  right  to  use,  built  by  county  in  city.  297 
liuildings,  may  construct  necessary,  295 
Capital  stock  of.      (See  Common  Carrier  Companies.) 

safe  deposit  and  trust  companies  may  invest  in  when.  514 

savings  and  loan  associations  doing  business  of  safe  deposit  and  trust  companies  in 
Columbus  and  Toledo  may  invest  in,  515,  514 
Cars  of.      (See  "Operation,"  below.) 

electric, —  vestibules  must   be  used  when,   305,   300 
penalty    for    violating    provisions    as    to,    306 

passenger  —  conductors    on,     when.    47,    50 
shooting    or    throwing    at,    636 
unlawful    injuring,    meddling   with,    etc..    636 
Character  and  nature  of  company  —  what  determines,  295 
Cincinnati, — 

cars  must  run  how  frequently  in,  55 

extensions  in,   grant   for,   305 

grant   in.  validated   though   not   to   lowest   bidder,    305 

rate  of  fare  not  increased  because  of  extensions.   305 
Consolidation.      (See   also   "Lease"    "Purchase"    below.) 

laws   as   to   railroads  apply  to,    53 

in   case   of    interurban    companies,    308 

terms   and  conditions  of,  who  fixes,   308 

with   what   companies.   53 
Construction  of  road.      (See  "Grant  for  road"  "Tracks"  below.) 

interference  with   access, — 

because  of  tracks,   trolley  pole,  etc.,   299 
temporary,    because   of,    299 

manner,  terms  and  conditions,  47 
who  fixes,  304 

may  be  where,  295 

streets,    etc.,    grading    of,    before,    50 

upon  private  property:    owner  may  enjoin  when.  304 
Contract  with   councilman  to  assist  in  procuring  right  of  way  void.  50 
Crossings    over    railroads    or    street    railways.      (See    Railroad    Crossings.        See    also 
"  Leases,  etc.,"  "  Operation  "  below.) 

cannot   be   enjoining   when,    303 

expense  of:    made  how:    renewal   of,   50.   51 
when   used   by    two   companies,    306 
Debts  of.   limitation  on,  200 
Definition   of, —  includes    what,    77 

what  determines,   f'95 
Depots  of  —  breaking   locks,  fastenings,  etc.,  to,   636 

may  be  constructed,  295 

"  other   appliances "   in   ordinance   does   not   include,   206 
Electrical   apparatus,  machinery,   etc..   of.   unlawful    interference  with,   322 
Electric  light  and  power  plant  in  connection  with,  Mansfield  authorized  to  permit,  pre- 
scribe terms,  etc.,  308 
Electrolysis,   liability  and  remedy  for,  296 
Excise  tax  on,  amount,  levying,  collection,  etc.,  of.  80,  81 

exemption  from  provision  of  "  Willis  Law,"  20 

failure  to  pay,   80 

tangible   property   not  exempt   from    taxation,    80 
Extension  of  road,   51 

agreement   with    municipality    as   to,    46 

conditions,  etc.,   as  to,  power  to  impose,  52 
who  fixes,   304 

consents  for,  46,  51.  52,  209 

courts  will   interfere  in,   when,    52 

fare,  rate  of,  not  increased  because  of,  46,  51 


INDEX. 

(ki !' 

STREET    RAILWAY   COMPANIES      Continued. 

in  cities  of   Lsl   class,    i 
grant  for, — 

by  companies  authorized   by  other   than   n   municipality 
by  roads  located  w  holly  oul  side,   is 
in  cities  of   1st  class,    l-t   grade,  305 
must  l>e  as  new  routes,  when,    18 

nunc  l>y  conde ation  in  case  oi  streei   railway  operated  bj   steam  railroad,  Sfc 

ordinance  granting  does  nol   confer  corporate   power,   - 
steam   railroads   cannol    avail   of   provisions 
what,  constitutes,  52 
Fare,  rate  of, — 

cannot  be  increased       because  of  consolidation  of   interurban  line* 

because  of  extension   of   road,   change   ol    route,   etc.,    16,  .">  I 
effect  of  lease,   purchase,  etc.,  oi   other   lines,  etc.,   53 
grant  made  to  one   offering   Lowest,    18 
right  of  municipalities  to  lix  or  change,    19 
remedy   for  charging  excessive,    ">.; 

suburban   or  interurban   railway   operating   over   tracks   of,   54,   308 
to  parks  or  cemeteries  owned  by,  but  outside  of  municipality,  5 » 
Flags.     (See  "Signals"  below.) 
Franchise,    power    to    alienate,    etc.,    52,    54 
Freight,    power    to   cany.    290 

condition  in  grant  prohibiting  is  void,  298,  299 
in  case  of  interurban   loads.  307 
Grant  for  road.      (See  also  "Extensions"  above;  "Streets,  highways,  etc."  below.) 
abandonment    of;    presumption    as    to,    298 
application   for  —  grant  of  only   pari    of,   297 
in  alternative,  effeel   of,  47 
notice  of,  publication  of,  4S 
requirements   as   to;    musl    specify   what,    17 
are  contracts  in   behalf  of  city   within   §    1777,   296 

upon   acceptance,   29(! 
authority  to  make.  296 

delegation  of.   50 
bidder  for  —  bond   of.  49 
good  faith  of,  49 
must  be  lowest.   48 

grant  in  city  of  1st  da--   l-t   grade  validated   when  not,  305 
who    is   lowest.    49 
bids   for  —  acceptance  of.  49 
irregularities    in.    49 

ordinance   inviting,   takes   effect   when,   4!' 
power    of    council    over.    44 
change  or  modification  of.  not  to  release  from  obligations  of,  46,  48 
conditions    and    terms    in.    invalid    when.    298 

violation  of.   remedy,  47 
consents  of  abutting  owners  required,  48,  209 
application   of,   to   certain    counties,    299 
are  conditions  precedent    when,  47.  301 
for  benefit  of  lowest   bidder,  301 
valid    how    long.    301 
conditional :    non-performance.    301 
for   additional    switches,    etc.,    300 
extensions.    51,   52,    290 
single  track  not  counted   for  double.   300 
use  of  tracks   of   existing    company.    2:i7.    300 
in  case  of  extension,  etc..  of  existing  route  over  occupied   streets,  47 
in    case    of    interurban    roads,    307 
must  be   in   writing,   290.    300 

be   obtained    for    each    street.    300 
need  not  —  be   entered   on   records    of   council.    300 

stipulate    mode    of    operation,    etc.,    300 
non-consenting   owners. — 

appropriation    of   property    of.    302 

provisions  for.  not  to  affect  requirement-  as  to, 
rights  of.  in  conditions  imposed  by  consents,  290 
purchased  are  invalid,  when.  301.  302 
temporary  use   of  streets   granted  without,   301 
time   for    obtaining,    301 


890  INDEX. 

(References  are  to  pages.) 

STREET   RAILWAY   COMPANIES  —  Continued, 
unauthorized,   ratification   of,   300 
want   of:  — burden  of  proof   in  contest  as  to.  300 
effect   when   part    of   route   lacks,   297 
estoppel    cannot   cure,    301 
remedy   for,    etc.,    299,    300 
taxpayer,   as   such,   cannot   contest,    300 
who  can   give  —  all   co-tenants  necessary,    300 

county    commissioner's   for    county    property.    300 
husband  cannot  for  wife's  property,  300 
remainderman,  without  life  tenant  when,  300 
withdrawal    of.    301 
construed   strictly,    290 
exclusive,   cannot  be   made,  29(5 
existing    grants,    etc.,    validated,    50 
extension  of  time  of.  47 
forfeiture   of  —  abutting  owner   or   competing  company   cannot   enforce,   298 

city    may   remove    tracks   upon,    when,    298 
invalid  and  defective  —  rights  of  abutting  owners  as  to,  297,  298 
taxpayer  may  enjoin,  when,  296,  297,  298 
if   he    has   no    interest,    298 
made  by  whom  and  how. — 

council,   by   ordinance    in   municipalities.    47.    304 

may    refuse   to    grant,    298 
county  commissioners,  by  order,  outside  of  municipalities,  47.  48.  29(5.  297 

cannot   grant    in   hamlets,    290 
public    authorities    in    charge    of    highways    outside    of    municipalities,    304 
in    case   of    interttrban    roads.    307 
turnpike    company    cannot    make,    307 
trustees    in   hamlets,    296 
manner   of   use,   terms    and   conditions,    47 

not  necessary  when,  in  case  of  suburban  or  interurban  railways,  54 
"  other  appliances "  in  ordinance  for,  means  what,   290 
release    from    obligations    of,    48 

what  constitutes,   50 
renewal  of:   term  of,  etc.,  48 
rescission  of  ordinance  as  to,  effect   of.  298 

estopped   to    claim,    when.    298 
signature   of   mayor   not  necessary  to.    50 
term  of:  extension  of,  etc...  47,  48 
to    individuals    or    corporation.    47 
to   a   "  trustee "    is   valid.    296 
Income  of,  pledge  of.  to  secure  bonds  or  notes.  200 

includes   what ;    diversion    of.    200 
Interurban  and  suburban  are  included  or  defined  as  street  railways,  77 
consolidation    of,    308 

fare  cannot  be  increased  by.    308 
exempted  from   provisions   of   "  Willis   Law.*'  20 
grant  of  use,  etc..  of  highways  outside  of  municipalities.      (See  "Grant  for  road" 

above. ) 
motive   power  of,    307 

operation  of  passenger  cars  of.  over  street  railway  tracks. — 
agreements,  etc.,  as  to,  53,  54 
fare    within    municipality,    etc.,    54 
franchises    or    grant    not    necessary    when.    54 
motive   power  in  case   of,   54 
rights   and  liabilities   of.    54 
powers    of  —  same    as    other    street    railways,    308 
to    appropriate    private    property,    307 

tracks   of  other   companies.    308 
to   carry   baggage,   express,    freight,   mail,   passengers,    307 

to  lease,  purchase,   or  make  traffic  arrangements  with  other  street  railways  so 
as    to    pass    through    municipalities,    308 
regulations,  subject  to   same  as  other  street  railways.   308 
Leases  of  franchises,  property,  etc.,  of  other  companies,  52,  54 
effect  of,  upon  fares,  53 

in  case  of   electric  light   and  power   companies.   54 
gas,   artificial   or   natural,   companies,    54 
interurban   street   railroads.    308 
rights  of  dissenting  stockholders.   54,   55,  206 


[NDEX. 

STREET    RAILWAY   COMPANIES      Continued. 

Liability  of,    for   injuries  al    railroad   crossings, — 

collision:    burden  of  prooi   on  company    i"  explain, 

duty  as  to  passengei     upon    stopping  al    cros  ing,    106    307 

effect  of  failure  <>f   railroad   to  lowei    gates,   

horses  and  cars  one  so   in    as  distance   i"i    Btopping   ia  concerned, 
is  joint,    when,    306 
proximate    cause,    307 
questions    foi    courl    and   jury,   307 
License   fee,   per  car;   construction   oi   ordinance   as   i". 

percentage    ol    earnings   in    lieu    of,    16 
Liens  on.     i  See   Mi .<  hank  s'   Likns.  ) 

section   .'!2<i7    does   no1    apply    to,    84 
Managing  agent,  or  chief  officer  in  Btate.     (See  "Officers"  In-low.; 
Mortgage  on,  companies  may  give,  200 
lien  from  date  of  record,  200 
subrogation  upon   foreclosure  of,   275 
record   of,    200 
.Motive  power  —  character  of  road   nol   determined   by,    ' 
electricity  as,   righl    to   use  ground  circuit,   206 
in  case   of   interurban    roads,    -'!i>7 
Offices  for,  ma}   be  constructed,  295 
Officers  of. — 

examination  of,  by  state  board  of  appraisers  and  a ors,   JQ 

penalties   for   refusing    lo   testify,    so 
reports  made,    filed,   etc.,   by,   when.    77 
Operation  of  roads.      (See  "Cars,"  "Grant  for  road"  ab< 

cars  must  be  run  how  frequently  in  cities  of   Isl   class   l-i   grade,  55 
must  be  stopped  at  railroad  crossings,  bridges,  etc.,  23,  25,  306 
penalty    for    violating    provisions    as    to,    307 
signal  to  cross,  who  musl    give,  306 
must    be   stopped   at  street  railway   crossing    v.  hen.    306 

order  of   precedence   in   crossing,   306 
refusal    to    run:    remedy.    298 
conditions,    manner,   and    terms    of,    47 

who   fixes.    Mill 
effect   of  ordinance  as   to   passenger-,   alighting   when   car   in    motion,   299 
Parks,  grant  of  use  of,  for.  297 
Percentage  of  earnings, —  construction  of  ordinance   a-  t< 

may   be  taken   in   lieu  of  car    License,   40 
Poles  of, —  interference   of   with   access   to   property,   299 

unlawful    interference    with;     penalty,    322 
Powers  of.      i  See  Common  Cabreeb  Companies;   see  also  "Interurban"  abo 
to  borrow   money  and   mortgage   property,   200,   295 
to  carry   freight,   etc..    296 
Promissory    notes   of. — 

amount    and    face    value   of:    limitations   as   to,   200 
secured   bow:    interest    on.    200 
Property  of  —  mortgage  or  pledge  of.  to  secure  bonds  or  notes,  200 

unlawful  •  meddling    with,    removing,    injuring,    etc..    636 
Purchase    of   property,    franchise,   etc.,    of  other   companies,    52 
effect  of,  upon  fare-.    53 
in  case  of  electric  light   and   power  companies,  •">  I 

interurban    street    railroad-.    308 
rights    of    dissenting   stockholders,    52,    55,    206 
Reports  of.  to  state  auditor. — 

blanks  fir.  auditor  prepares  and   furnishes,   78 
duties   and   powers  of  officers   a-  t<>.    7, 
failure   or   refusal    to   make.    7!» 
must    show    what    as    to, — 

character   and  nature  of  company,    77 
gross   receipts.    7^ 
name  of  company.   77 
officers,  etc..  name   and   address,   77 
organization,    laws   and    state    of.    77 
principal    office,    location    of.    77 
Route  of  road.      :  S(h>  "Grant   of  road"   above.) 
change  of  existing.  46.   47 
line  may  fork  and  he  one  route    50 
through    private   property,    effect    of.    50 


892  INDEX. 

(References   are   to   pages.) 

STREET    RAILWAY   COMPANIES  —  Continued. 

Sale  of  property,  franchises,  etc.,  to  other  companies,  52 
Section  3207  does  not  apply  to,   84 
32S7   to   3289  apply  to,  200 
3302   to    3304   apply  to,   53,   55 
3381    to   3392  apply  to,  53 
Service  of  process  on,  etc.,  582 

0478   does   not  apply  to.   024 
Signals,  flags,  lamps,  etc.,  unlawful  meddling,  etc.,  with.  036 
Speed,  rate  of, —  effect  and  validity  of  ordinance  as  to,  50 

rule  as  to,  in  absence  of  ordinance,  50 
Stockholders  of, — 

meeting  of,   to  ratify   lease,   purchase,  etc., — 
of   electric   light  and   power   company,   54 

notice  of;    proxies;   vote  necessary,   54 
of   street  railway,  52 

notice  of;  proxies;  vote  necessary,  52 
rights  of  dissenting, — 

in  case  of  lea.se  or  purchase  of  electric  light  ana  power  companies.  55 
compensation   for  stock;   basis  of,  55,  206 

arbitration   in   case  of  non-agreement   as  to  value,    55,   200,   207 
refusal    to  arbitrate  or  receive   amount  assessed,   206.   207 
notice  of  dissent,   55 
in  case   of  lease,   purchase   or   sale  of  railway,   52 
compensation  for  stock;   basis  of,  52,   53.   206 

arbitration  in  case  of  non-agreement  as  to  value,  53.  206,  207 
refusal    to   arbitrate   or    receive   amount   assessed.    206.    207 
Streets,    highways,    alleys,    etc.. — 

use  and  occupancy  of,  by    (see  "Grant"  above),  47 
additional    burden,    when,    307 
appropriation   of   county   roads,  etc..   304 

when  occupied  by  turnpike  or  plank  road  companies  in  certain  counties,  302 
assessment    for    improving,    condition    that    company    repay,    who    entitled    to 

payment,   298 
authorities  controlling  public  roads  may  agree  as  to  terms  and  conditions,  304 
state   and   county   roads  included.   304 
who  are  authorities  controlling,  304 
compensation   to   abutting   owners,   when,   302 
conflicting    rights    in;     with    telephone    companies,    316 
grade  and  grading  of,  before  construction  of,  50 
in  case  of  interurban   companies,   307 
paving  and   repair  of.   by  company,   51 
assessments  for,  how  paid,  298 
in  cities  of  1st  class  2nd  grade,  51 
right   to,   acquired  by  adverse   possession,   29S 
Suburban.      (See    "Interurban,    etc."    above.) 
Summons  against.      (See  Service  of   Process.) 

section   6478    does   not   apply   to,    624 
Tracks   of.      (See   "Construction    of   road."    above.) 

agreements  as  to  use  of,  by   suburban  and   interurban   railways,  54 
fare  within  corporate   limits,   54 
franchise  or  grant  not  necessary  when,  54 
motive   power   in   case   of,    54 
rights  and   liabilities  in  case  of,  54 
injuries  to,  one  company  may  restrain  another   from,  when,  297 
joint,   court  cannot  order  building  of.   297 
laying  without  grant,  a  nuisance,   296 
obstructing,  unlawful  meddling  with,  636 
one   company   cannot  straddle  tracks  of   another,   297 
use  of,  by  other   companies, — 

appropriation  of  right  to,  302,  303 

in  cities  of   1st  class  3rd  grade,   302 
measure  of   damages   in,   303 
pleadings   and   evidence   in,    303,    304 

application  for   franchise,   notice,   consents,   etc.,  303 
length    of    line    constructed.    303 
necessity   for   such   use,   303 
time   such   use  will   continue,   303 
rights  of  appropriating  company  as  against  third  company.   303 
second   appropriation   may   be   made   when,   303 


INDEX, 

(R<  fen  ni  -     are  to  pages.) 

STREET    RAILWAY   COMPANIES      Continued, 
compensation   for,   29< 

council    may    li\.    u  Inn, 

grantee  under  agreement  cannot   permit  third  oompanj   t>.  n^-,  when 

injunction  against,  :;<)2 

limitations  upon   right    to  grant,    18 

in  case  <>f  extension,  change  of  route,   etc.,    16 
one  eighth  of  track,  how  computed,   18,  297 
power  of  council  as  t<>.    18,   -'-'T 
rights  of  abutting  owners,   297,  300 
Traffic  arrangements   with    interurban    roads,   308 
Transfers,  change  in  existing  system  of,   16 

Transportation   of   cars,    freight,   passengers,   etc.,   of   interurban    n 
Watchmen  at  streel    crossings,  curves,   etc., — 
municipalities  may   require   when,   305 

penalties   for    failing   t<>    place,    when    required,    305 
Wires  of  —  insulation  of,  296 

over   railroad   tracks.   234,   235,   258 

power  of  commissioner  of  railroads  as  i".  235,  258 
unlawful   interference  with,    322 
STREET  RAILWAY  ROUTE.     (See  Street   Railway  Companies.) 
SUBCONTRACTOR.      (Sec    MECHANIC'S    In 
SUBMISSION   TO   VOTERS. 

Required  in  ease  of  laws  authorizing  associations  with  banking  pow< 
in  case  of  purchase  of  toll   roads  by  county  commissioners, 
return,  counting  and  declaration   of   result,   337 

SUBPOENA. 

Clerk   of  commissioner  of  railroad-   may    issue,   25 
Commissioner   of  railroads   may    issue,    -'* 

SUBROGATION. 

Transferrer  of   stock,   as  again>t    assignee,   on    account  .if   stock    subscriptions,    140 

SUBSCRIBERS.     (See  Incorporators:   Capitai  Stock.) 

SUBURBAN  RAILWAYS.     (See  Street   Railway  Companies.) 

SUBWAY   COMPANIES.      (See   SUBWAYS,   I 
In  cities   of    1st  class,   1st  grade, — 

power  of,  to  construe!  and  maintain  necessary  appliances,  etc., 
to  use  streets,  etc.,  325 

SUBWAYS   FOR    ELECTRIC   WIRES. 
In  cities  of    1st  class,   1st  grade. — 
charges  for  use  of  —  basis  of.  326 

municipal    authorities    may    fix,    326 
construction  of.  etc.   325 

by    persons,    companies,    corporations,    325 

chief   engineer    of   municipality    to    control    and    approve,    326 

certificate  of.  as  to,  required  before  use,  326 
effect  on  existing  rights  of  electrical    companies,    326 
municipal  authorities  may   contract    for,   32."> 

may  regulate,    326 
streets,  alley-,   etc.,   may  be  used   and   occupied    for,   325 
bond  for  restoration,  etc.,  of.,  required,  326 
grant  of  municipal  authorities   necessary,  325 
bids  for,  advertising  f<>r.  326 
compensation    f<>r.    required,    326 
exclusive,  326 

made  to   highest   bidder,   320 
operation   of. — 

certificate    of    engineer    required    before, 
municipal   authorities   may   regulate,   326 
what    wires    to    he    placed    in.    326 
Telegraph    and    telephone   companies   may   construct,   etc,    324 
consent   of   municipal    authorities   to,    324 

given  by  whom,  324 
poles  not  to  be  erected   in   district   when.   324 

SUMMONS.     (See  Service  of  Process.) 

SUPERINTENDENT  OF  CORPORATIONS.      (See  tivc  comp 

Summors  may  be  served  on  in  case  of  indictment   of  corporatio! 


894  INDEX. 

(References   are   to   pages.) 

SUPERINTENDENT   OF   INSURANCE. 

Absence  or  disability  of,  deputy  acts,   31 
Annual  report  of,   34 

made  when   and    to   whom,   34 
must  show  what,  3-4 
printing  of,  34 
Appeal    from  decision  of,  as  to  condition  of  company,   32 

As  inspector  of  building  and  loan  association.      (See  Building  and  Loan  Associations.) 
supervisor   of  bond  and  investment  companies.      (See  Bond  and   Investment   Com- 
panies. ) 
Appointment  of,  31 

Assignments,    certificates,    conveyance,    etc.,    executed   by. — 
are  evidence,   32 

may   be   recorded   same   as   deeds,    32 
must  be  under  official  seal,  32 
Bond    of,    31 

fidelity  and  guaranty  companies  cannot  be   surety  on,   415 
Clerks,  employment  of,  31 

names   and   compensation,  report  must  give,   34 
Copies  of  papers  certified,  etc.,   by,  are  evidence,  32 

Deposits  with.      (See   Bond    and   Investment    Companies:    Building   and   Loan    Com- 
panies :    Insurance    Companies  —  Accident     and     Health  ; 
Credit  Guaranty;   Fidelity  Guaranty;   Life;   Other  than 
Life.  ) 
action  to  collect  claims  payable  from, — 

attorney-general  to  bring  when,  and  where,  38 
code  of  civil   procedure  governs,   38 
notice   of   pendency    of,   38 
returns  of,  for  taxes,  etc.,  not  required  when.  57 
sections   2734,   2744  do  not   apply   to,   57 
Deputy  of  —  appointment,   31 

bond,   duties,   powers,  oath,   qualifications,   salary,  etc.,   31 
Discretion   of,    31 

may  not  exercise  arbitrarily,  426 
not  subject  to  mandamus,  426 
Duties  and   powers  of,   31 

as  inspector  of  building  and  loan  associations.      (See  Building  and  Loan  Associa- 
tions) , — 
supervisor   of   bond   and    investment    companies.      (See    Bond    and   Investment 
Companies.  ) 
as  to  assessments  on  capital  stock  because  of  impairment.  33 

books   and  papers,   production,   etc.,   of,   before   commission   to   hear  application 
for  consolidation  or  re-insurance  of   risks, — 
in   case  of  accident  insurance  companies,   367 
health  insurance  companies,  367 
life  insurance   companies,   367 
consolidation    of  —  accident    insurance    companies,    367 
health    insurance    companies,    367 
life  insurance   companies,   367 
coupons   attached   to   securities   deposited   with,   35 
discontinuance  of  business  of  insurance   companies,   37 

in    case   of    life    insurance    companies,    36 
examination   of  insurance  companies.   32,   34 

in    case    of   assessment    life    insurance    companies,    387 
foreign  companies,   57 
exercise  of  powers  and  franchises  unlawfully,  by  assessment  life  insurance  com- 
panies,  387 
fees,  31 

license  to  do  business;   renewal;  revocation,  etc.      (See  Insurance  Companies.) 
in  case  of  burglary  insurance  companies,  444,  446 
credit   guaranty   companies,   441,  444 
insurance    companies    generally.    31    et    seq.,    57    et    seq. 

other  than  life,  426  et  seq. 
life  insurance  companies,  370  et  seq.,  387   et   seq. 
oaths,  administering,  32 
publication  of  results  of  examinations.  32 
of  notice  of  revocation  of  license,  34 
re-insurance   of  risks. — 

in  case  of  accident  insurance  companies,   367 
health   insurance  companies,  367 


INDEX. 

(F no 

SUPERINTENDENT  OF  ENS!  RAN(  E  -Continued, 
life    insurance   companii 
reports  of  insurance  companies,  blank   form 
requisitions    to    restore    impaired    capita] 
securities  required   to  I"'  deposit* 
statements  as  to  reinsurance,    pooling  of  busini 

panies,  58 
taxation   of    foreign    insurance   companies,    .~>7 
unsound  companies,  '■'•'■'>.  3  I 
valuation    of   outstanding    policies,   34 

witnesses,  summoning,  etc.,  to  testify,  etc.,  before  commi    ioi    to    teai    peti 
for  consolidaj  ion,  re  im  uram  .  etc., — 

in  case  of  accident   insurance  companii 
health    insurance    companies,    ■'•*>' 
Eligibility  to  office  of,   31 
Ex  officio  —  inspector  of   building  and    loan 

supervisor   of  bond   and   investment  companie  .  520 
Expenses, — 

for  examinations  <if   insurance  companies,   32,   59 
for   maintaining   departnienl    ol       limit    on,   :il 
paid  on  certificate  of  superintendent,   '.'<\ 
report  of,  must    show.  31 
Experts,  employment  of,  by,  31 
Fees    of,    35 

as  to  foreign  assessment   life  insurance  companii      388 
paid  into  state  treasury,  32,  57 
Member  of  commission  for  consolidation  or  re-insurance  of  ii-k~. — 
in  ease  of  accident  insurance  companies.  :;i'>7 
health    insurance   companies,    :;<'>7 
life   insurance   companii  s,   - 1  * '•  T 
Office  of,  kept  where,  31 
Records,  must  keep  what,  34 
Salary  of,  additional,   32 

Taxes  collected  by,  from  foreign  insurance  companies,  paid  into  general  revenue  fund.  :>7 
Term  of  office  of.   31 
SUPERIOR    COURT.      (See    CouBTS  —  SlTPEBIOB  I 
SUPERIOR  OFFICERS.     (See  "Employees,"  under  Railroad 

SUPERVISOR   OF    BOND   AND    INVESTMENT    COMPANIES.        -  i    and    I  ■■ 

mint  Companies.) 

SUPERVISOR  OF  HIGHWAYS. 

Control  of,  over  plank  roads,  etc.,  333 
SUPPvEME  COURT.     (See  Courts —  Supreme.) 

SURETY. 

Liability  of,   on   bond   of   treasurer.    12, 

Power  of  corporations  to  become,  112 
SURETY   COMPANIES.     (See   Insurance   Co's  —  Accident :    [nstjrani  miv 

GUABANTT:     [NSTJBANCE  CO'S  — OTHEB  THAK     l.ili:     I 

i  !0»s  —  Title    Gtjabanty:    Safi     Deposii     i.nd    Tbus 
SWING   BRIDGE.      (See   Railroads.) 
SWITCHES.      (See  Railroads.) 

TAXATION,  TANES.     (See  Excise,  Fbanchise,  ob  Pbtvilege    Tax.) 
Apportionment    of    valuation    of   property. — 
in   ease  of  express  companies.   69,   70,   71 
railroad  companies,  07 

consolidated     companies,     277.    27s 
telegraph    and   telephone  companies,   67,   69,   70,   71 
Assessment  of  property  for.      (See  "Basis  for,"  below.) 

state  board  of  assessors   and    appraisers   make   of  express     telegraph   and   tele] 
companies,  69 
Assessors, — 

duties  and  powers  of,  as  to   listing   personal   property,   60,  61 
of  property   of   railroad   companii 
Back  taxes,  bank  not  liable  for,   when,  64 
Bank   shares.      (See   "Capital   stock"   below.) 
Basis  for, — 

in  ease  of  banks  and  incorporated  bank-,  si 
bankers  and  incorporated  banks,  62,  ii-"l 
express  companies,  60,   70,   71 


896  1XDEX. 

(References   are   to   pages.) 

TAXATION,  TAXES  —  Continued. 
railroad  companies,  67 

savings  banks  incorporated   under  act  of   1867,  62,  63 
telegraph   and  telephone   companies,   67,   69,   70,    71 
Board  of  appraisers.      (See  Board  Of    Appraisers  and  Assessors.) 
Capital  stock, — 

bank  shares, — 

auditor  to  fix  value  of,  64 

equalization  of,  SI 
bank  may  pay   tax  on  when,  82 
lien   of  tax  on,   82 
common   and   preferred,   no   distinction  as   to,   60 
exemption  of,  from  —  how  shown,  59 

in  case  of  companies  whose  capital   stock   is   taxed.   11.  59,   60 
consolidated   companies,  60 
foreign  corporations  under  §   148c,  11,   12.  60 
must  clearly  appear,  59 
"  false   return "   of,   what   is,   60 
listed  —  by  corporations,  56,  57 

by  stockholders  —  in  case  of  all  banks,  banking  corporations,  etc.,  63.  64 
in  case   of  consolidated   companies,   60 

foreign  corporations  under  §   148c,  11,  12,  60 
laws  requiring,  by   foreign   corporations,  constitutional.   60 
not  required   in  case  of  companies  whose  capital  stock   is  taxed,   59 
pledged   as  collateral,   60 
power  of  state  as  to,  of  national  banks,   63 

restrictions   and   remedy,    64 
premium  on  sale  of   increase  of,  not  subject  to,   when,   166^ 
return  as  to,  of  foreign  companies  under  §  148c,  forms  for,  642 
scrip   certificates,   to  be  listed   when,   60 
shares   of.  in  foreign  corporations,    17 
void  or  illegal  stock  not  taxable,  60 
Collection  of  taxes,  from  express  companies,  82 

from  telegraph  companies,  82 
Corporations  —  power  to  surrender  right  to  tax.  3 

property  of,  subject  to,  same  as  individuals,  3 
County  auditor,  duty  and  power  of, — 
as  to   listing  personal    property,   61 

returns  of  banks  whose  capital  stock  is  divided  into  shares,  64,  65 
Debts  — 

deduction  of,  from  national  bank  shares,  63,  65 

in   case   of  bankers  and   unincorporated   banks,   62 
re-insurance  fund  is  not,  as  relates  to,  34 

unearned  premiums  of  fire   insurance  companies  are  not  as  relates  to,  420 
duty  to   cancel  fire  insurance  policy  does  not  create,  430 
Delinquent  taxes, — 

agents  not  to  act  if  corporate  taxes  not  paid  by  express,  insurance,  telegraph  and 

telephone  companies,  83 
bank  shares, —  dividends  not  to  be  paid  on,  until  paid.  82 

not  to  be  transferred,  until  paid,  82 
railroads  not  to  do  business  for,  or  with  express,  insurance,  telegraph  and  telephone 
companies    until    paid,    83 
Depositors  in  savings   banks,   returns   of,  63 
Discrimination  in  valuation  of  bank  shares,  65 
Equalization  of  valuations, — 

in  case  of  bank  shares  of  incorporated  banks,  81 
of    property    of    railroads,    82 
Evasion  of,  return  of  personal  property  must  show  what  as  to,  61 
Excessive,  restrictions  on.  remedy  for, — 
in   case  of  banks.  65 

national  bank   shares,  64 
Excise  tax.      (See  Excise,  Franchise  or  Privilege  Tax.) 
Exemption  from, — 

capital  stock.      (See  "  Capital  stock  "  above.) 

cemetery  lots,  when,  358 

charitable  institutions,   56 

property  of  companies  for  protecting  and   preserving  dead  bodies,  573 

real  estate  of  cemetery  associations,  when,   356 

in  counties  containing  city  of  1st  or  2nd  class,  359 
stock  or  interest  in  companies,  held  by  state,  56 


index. 

•  icuccs   arc    to    pi| 

TAXATION,  TAXES  —  Continued. 

foreign  corporations  —  chosea  in  action  of,  are  tubjeci   to 

stockholders  of,  need  nol    Lisl    stock    when,    ll     12 
Inspections,  etc.,  right  of  tax  officers  to   maki    of  banl 
[nterstate  commerce,  receipts  from,  taxable  whei 
Listing  of  personal  property   for.      (See  also      / 
as  of   what   dale.  59 
assessor,  duty  of,  as  to,  60,  61 
hy  depositors  in  savings  banks,   ('._'.  63 

stockholders.     (See  "Capital  atoch  "  afa 
forms  for,  00,  til 

interest,  in  unincorporated  companii  j  oo1    required,  66 
in  whose  name  to  l>c  listed,  55,  59 
returns    must   be    under   oath,    (in,   i;  ] 
valuation   for,   determination  of,  01 
what  must  be  listed.  55,  59-61 
when  to  be  made,  (iO 
where  to  be  listed,  55 
who  must  make,  55,  59,  60 
Payment  of, — 

banks  may  pay,  on  shares  when,  82 
express  and   telegraph  companies,  agents  paj    when,  82 
Personal  property   for   purposes   of,   include-  what, — 
in  ease  of  corporations,  56 
railroad  companies,  66 
Purposes   for   which    may    be   levied — maintenance   and    repair   "f   railroad    ci 

highways.    231 
Railroad  companies.      (See  Boabd  <n      Lppraisebs.) 

foreign  companies  owning  road  in  state  subjed    to  provisions  . 
right  of  way  of,  used,  etc.,  without   record   title,  215 
Real  estate   of   corporations, — 

returned  as   personal   property,    when.   56 
in   case  of  railroad  companies,  66 

consolidated  railroad  companies,  -77 
taxed   locally. — 

in  case  of  equipment  and  freight"  line  companies,  7.; 
sleeping  ear  companies,  76 
taxed  same  as  that  of  individuals  in  case  of  banks,  bankii 
Remission   of  taxes  and  penalties. — 

in  case  of  express,  telegraph  and   telephone  companies,   70 
Residence  of  corporations  for  purpose-  of.  55.  98 
Retaliatory  provisions  as  to.  in  case  of  foreign  insurance  companii 
Returns  for.      (See  also  "Listing,  etc.,"   above.) 
by  bankers  and  unincorporated    banks, 

basis  for  taxation,  obtained   from,   how,  62,  63 
deduction   of   liabilities,   03 
deposits  to  be  listed    when.  03 
made  when,  where,  to  and  by  whom.  61,  63 
must   be  under   oath.    01 
must  show  what.   66,  62 
by  banks   whose  capital    is  divided    into   shai 

copy  of,  auditor  to  send  to  state  hoard,  of  equalization,  64 
correction    of:    false    statement,    64,    65 
county   auditor    may   make    when,    65 
failure  to  make,  05 
made  when,  where,   to  and  by  whom. 
must   be  in   duplicate:    under   oath,    64 
must    show   what.    01 

probate  judge,  duties  and  powers   of,  as  to,   65 
by  corporations  — 

apportionment  of  fixed   and   movable  property,   56 

blank  forms  for.  56 

capital    stock   to   be  listed.   57 

companies    specially    provided    for,    exempted,    56 

equipment   ( K.  R. )   and  freight   line  companies,  72 
express,  telegraph  and  telephone  companies 
sleeping  car  companies,   74 
false  or  incorrect,  correction,   etc.,  of, 
made  by  what   officers,   56 

when,  where,  to  whom,  56 


898  INDEX. 

(.References   are   to   pages.) 

TAXATION,  TAXES  — Continued. 

must  be  verified  by  oath,  56 
must  include  what,  56 

re-insurance  fund  not  a   debt  to  be  deducted,  34 
unpaid  stock  subscriptions  to  be  listed,  56 
valuation  of  property  in,  56 
by  railroad  companies  —  by   and  to  whom,  66 
in   case  of  consolidated  companies,   277 
must  show    what:    under   oath,  66 

in   case   of   consolidated    companies.    277,    27S 
by  savings   banks    incorporated  under  act   of   1867, — 
basis  for  taxation,  obtained  from,  how.  56,  62.  63 
deposits  to  be  listed  when,  62 

laws  as  to  bankers  and  unincorporated  banks  apply  to,  62 
made  when,  where,   by  and   to  whom,   61 
must  be  under  oath,  61 
must   show    what,    61,    62 
Right  of  way  of  railroad. — 

deduction   of,   from   land   on   tax   duplicate,   214 
statement  as  to.  to  be  filed  with  county  auditor,  214 
Scrip   certificates,  returnable   for,   when,   60 

State  auditor,  duty,  etc.,  of,  as  to  blanks  for  listing  property.  61 

State  board  of  appraisers  and  assessors.      (See  State   Board  of   Appraisers  and  As- 
sessors.) 
State  board   of   equalization.      (See   State    Board  of    Equalization.) 
TELEGRAPH  AND   TELEPHONE   COMPANIES. 
Agents,  employees,   etc.      (See  ''  Officers,"  below.) 
agents  pay  taxes ;   when,   82 

unlawful   to   act,  when  taxes  unpaid.  83 
penalties  against  recovered,  how,  30 
Agreements  with  other  companies,  316,  323 
Apportionment  of  property  of,  for   taxation,   67 
Appropriation  of  property.      (See  Appropriation.) 
Books,   papers,   etc.,   examination,   inspection,   etc.,   of  by   state  board   of  appraisers  and 

assessors,    70 
Buildings,   etc.. — 

entering  or  using  without  written  consent  of  owner,  317,  323 
erecting  poles,  etc..  near   to,   317,   323 
Charges  for   service,  municipalities   cannot  fix.    in   agreement  for  use  and   occupancy  of 

streets,   etc.,   319 
Consolidation  of  —  laws  as  to  railroads   apply  to.   323 

what  companies  may  consolidate,  323 
Construction  of  lines, — 

along  public  roads,   etc..   authorized,   315,   319,  323 
additional  burden  on  highways,  316,  323 
by  companies,  315 

persons,  -">19 
by   means  of   posts,   piers,   etc.,    315,   323 

subways  or  underground  conduits,  324 
must  not  incommode  public,  315,  323 
trees  along,  cutting  and  trimming,  316 
appropriation  of  property  for.  317,   323 
error  proceedings,  time  for,  317 

limitations  as  to,   in  case  of  lands  of  other  companies,  317,   323 
in   case  of  lands  of  railroads,  etc.,   317,  318,   323 
consent  of  property  owner  necessary  when,  317,  323 
fruit  or  ornamental  trees,  injuring  or  destroying,  317,  323 
location  of  poles,  wires,  fixtures,  etc., — 

change  of,  when  corporation  owning  land  needs  it,  323 
appropriation   of  property  to  make,   323 
designation  of  new  location,   323 
notice  of,   323 
must  not  interfere  with  other  lines.  317,  323 
over  private  property. — 
damages  for,  319 

appraisers  of.  county  commissioners  appoint  when,  319 
costs  of.    paid   by  whom,   319 
duties,   fees,  oath,   etc.,  of.   319 
payment   of   award   of.   319 
statute  of  limitations  as  to,  319 


INDEX. 

(  R<  U 

TELEGRAPH   AND  TELEPHONE  COMPANIES      Continued. 

Definition  of:    includes  w  bat,  77 

Direct oi  3  of ,  statement   of  na  axes,   r<    ideno 

Employees    of,    mutual    benefit    Bocietii      ol  Insurai 

provisions  of  SS  3630a  to  3630f,  3631  do  Dot  ap 
Excise  tax  on,  amount,  levying  of,  collection,  el 

exempted   from   provisions  of  "Willis    Law,"  20 
failure   to  ]>:iy,  80 

tangible   property   not    exempt    from   taxation, 
Exempted   from   provisions  of  |    27  it.  61) 
Foreign,  section    I  Is''  does  not   apprj    to,   11 
Higliways.     (See  "Streets,   highways,  etc."  below.) 
Lnclosures,  erecting  poles,  etc.,  in  without  consent,  311 
Include  whom.  1;-; 

Instruments,  etc.,  of,  connecting,  interfering  with,  unla    full; 
Liability  of,  tor  negligence,  316 
Lines  of  —  injuring,  penalty   tor.  319 
joint  ownership  of.  :M7.  323 
leasing  of,   316,  317,  323 
taxation  of,  320 

lines  of  electric  light  companie     must    not    inl   rfere  with, 
reports  to  state  auditor  must  ehow  what  a-  to.  68 
Messages, — 

copying  or  reading  by  instruments   unlawfully:    penalty,  '■'•-- 
damages  for  negligence  in   transmitting, 

burden  on  company  to  show  lack  of  negligence,   320 
company  cannot  contract  against  its  own  negligence,  320 
limited*  to   pecuniary    loss   or    physical   Buffering,   320 
none    for    mental    suffering,    -I-" 
delivery  of  —  by  mail   when,  321, 
delay   in,    penalty    for.   321,   322 
failure  in,  320,  321,  323 

liability   for   prompt,   321 
measure   of  damages.    321 
proximate    cause,    321 
limit   within    which   required,   321,    323 
must  be  in  order  of  receipt,  without    preference,  321,  323 
penalty  for   violation   of  provisions   as   to,  321 
divulging    contents    of:     penalty.    321,    323 
forginsj   name   of    receiver    to   receipt    for:    penalty.    321, 
transmission   of, — 

company   must    forward    over   other   lines,    when. 
companies  must  receive  and  transmit    from  other  lines, 
contract  discriminating  in  favor  of  one  company  void 
penalty  for  refusal   or  neglect,  320,  323 
delay   in  —  agent    must    inform    sender    of,    when,    321,    323 
cause  of  indorsed    on   dispatch,  when.   321,   323 
penalty  for  violating  provisions  as  to,  320,  322,   323 
failure  or  neglect  in:    penalty.  321 
false,  forged  or  unauthorized:   penalty.  322,  323 
must  be   in    order   of   receipt.    321,    323 

damages  for  giving  precedence  to,  321,  323 
news  items  may   be  out  of  regular  order,  when.   321,  323 
of  public  officers  have  precedence,  when.  321, 
penalty   for  violating  provisions  as  to,  321,   323 
of  passenger  delayed  by  aecidenl  or  collision  on  railroad,  261 
alteration    of    forbidden.    262 
penalty    for    violating    provisions    as 
gent    forthwith,  262 
unlawful  interference  with:   penalty.  322 
Mortgages  of  —  record  of.   151 
Officers  of, —  _„ 

examination   of,    by    state   board    of   appraisers    and    a rs,    ,«• 

penalty  for  refusal   to   testify,    r0 
reports  made,  filed,  etc..  by.  when.  24,  28,  I 
statement  of  names,    residence,    postoffice  address   of,   required 
Penalties  against, — 

collected  by  civil  action  or  indictment,  when,  •■<> 


Poles 


provisions 'of   §§  2781  to  27*.->  apply  to,   7" 
s  0f  —  license  to  others   to   use,   when.  316 


900  INDEX. 

(References   are   to   pages.) 

TELEGRAPH   AND   TELEPHONE   COMPANIES  —  Continued. 

location  of,   condition  of  road,  etc.,  to  be  considered,   310 
unlawfully   erected,   ordered   removed   when,   310 
Powers  of  —  to  construct,  use,  etc.,  telegraph  lines,  310,  323 

to  lease,  etc.,  other  lines,   301,  310,  317 
Railroad  company  not  to  do  business  with  or  for,  when,  83 
Repair  of  structures,  lines,  etc. —  when  on  land  of  a  corporation,  323 
corporation    may    make,    when,    323 
notice  to  company   to  make,    323 
Reports, — 

to  commissioner  of  railroads  and  telegraphs, — 
additional   made,   25 
amendment,  etc.,  of,  20,  28 

blank  forms  for,  commissioner  to  furnish,  25,  28 
defective  or  erroneous,  correction  of,  20,  28 
form  and  manner  of.    25,   28 

excuse  for  not  conforming  to,  29 
made  and  filed  by  whom,  when,  as  of  what  date.  25.  28,  29 
penalties  for  violating  provisions  as  to,  20,  28,  30 
requirements  as  to:   must  show  what,  etc.,  25,  20,  28,  29 
to  state  auditor, — 

blanks  for  auditor  prepares  and  furnishes,  09,   78 
duties  and  powers  of  officers  as  to,   77 
failure  or   refusal   to   make,   79 
must  show  what  as  to^ — 
capital  stock.  08 

character   and  nature  of   company.   68,   77 
gross  receipts,  68,   78 
name  of  company,  08,  77 
officers,  etc.,  name  and  address.  08.  77 
organization,  laws  and  state  of,  08,  77 
principal   office,  location   of.   08.    77 
property,   real   and   personal,   08 
Returns  of,   for  taxation,   50 
Right  of  way. — 

appropriation  of,  over  lands,  to  construct,  repair,  etc..  317.  323 
exclusive,  unlawful  to  contract  for,  317,  323 
Sections  3454  to  3401,  3402  to  3471  apply  to  telephone  companies.  323 
Service  by  telephone  company,  mandamus  to  compel,  323 

Stockholders,  statement  showing  name,  address,  and  shares  owned  by  made  annually,  20 
Stream  and  water  courses,  erecting  lines  across,  319 

limitations    upon,    319 
Streets,   highways,   alleys,   etc.. — 

use  and  occupancy  of.  by  —  additional  burden  when,   310 
company  cannot  grant  right  of,  to  another,  310 
compensation   for.   to  municipality,   310,   323 

limitations  upon,  318,  323 
conflicting  rights, — 

between   telephone  company  and   street  railway.   316 

poles,  etc.,  of  electric  light  and  power  companies  no*  to  interfere  with,  325 
mode  of  use  of. — 

agreement  with  municipality  as  to.   318.   323 

cannot   fix  charges  for  service,   310 
probate  court  may  direct  when,  318,  323 
right  to.   315.  323 

persons  entitled  to:    limitations   upon,   319 
terminates  with  agreement,  for.  or  order  of  court,  318 

ouster,  none  until  failure  to  agree,  etc.,  319 
transfer  of,  power   of  court  to  make.   318 
Subways  or  underground  conduits.      (See  Subways  fob  Electric  Wires.) 
Taxation  of.      (See  Taxation.) 

amount  invested  by  persons  in  telegraph  lines  subject  to,  320 
^Yires  of. — 

additional  —  injunction  will  not  lie  against  when.  315 

strung  by  others  under  license  not  a  nuisance  when.  310 
over  railroad  tracks.      (See  Railroads.) 
unlawfully   cutting,  breaking,  tapping,  etc..   322 

TELEGRAPH  AND  TELEPHONE  LINES.      (See  Commissioners  of  Railroads  and  Tele- 
graphs: Railroads:  Telegraph  and  Telephone  Co.'s.) 

TELEGRAPH  OPERATOR.     (See  Railroads.) 


I  \  1 1 1 

(Rcf< 

TITLE   GUARANTY   AND    I  I ; I  ST  COMPANIES 

surance  Co.'s      Other    mm>    Lin 

—  'I  I  III.     l.i    \i:  \  '.  i  , 

THEATER. 

Lease  ofj  by  literary,  religious,  or  scientific  •  ■   iociations,   m  ; 
TICKET:  TICKET  AGENT.     (See  Railroads.) 
THIEVES.     (Sec  Criminals.) 

Agents  of  union  depol  companies  may  arrest   when,  :;ii 
TORNADO  INSURANCE.     (See   Insurance  I  o.'s      Fnut:   Insura 

1. 1 1  E.) 

TOLL  BRIDGES.     (See  Bridoi 

TOLL  GATES.     ts.-<-  AVENUE  Companies:  Turnpike  ami  Plank   Ro 

TOWNS.     (See  Mi  nictpal  I  orporationb. ) 

TOWNSHIPS. 

Agricultural   societies  of.     (See   Agricultural  Societies      Tov 
Cannot  aid  corporations,   _ 
Trustees  of. — 

duty  of.  as  to  unclaimed  or  unidentified  corpse,   isl     isj 

as  in  grant  of  use  of  streets,  etc.,  t"  pipe  line  c panies,   ">7 1 

may  appoint  cemetery  watchman,  :;•">> 
may  erect,  buildings  "n  cemetery  grounds, 
powers  of  as  u>  railroad  h i- !■  \\ ;i \-  crossings, 

religious:  and  benevolenl   societies  may  convey  cemeterj   grounds  t... 
care.  etc.  ><\ :  e\p ense  shared  how,  489 
TRACKS.      (See  Railroads:   Street  Railway  Compantj 
TRACTION  COMPANIES.     (See  Street  Pmi.ww  Companies. 

TRACTION  ENGINES. 

Rates  of  toll  for.  331 
TRADE    ASSOCIATIONS.       (See    CO-OPERATTV]     COMPANTJ 

Distribution  of  purchases,  563 
Ohjects  and  purposes  of,  563 
Powers  of.  •Vi:1) 

Profits  arising  from,  distribution  of,  563 
TRAINS.     (See  Railroad  Trains.) 
TRAINMEN.      (See  Railroads.) 
TRANSFER.     (See  Capital  Stock.) 
TRANSPORTATION    [NSURANCE.     'See   Insurance  Co.'s  —  Mab 

Fire:    [nsi  rance  Co.'s  -   I  u  her  than   Ln 
TRANSPORTATION  COMPANIES.     'See    Freighi    I  -      Navigation    Imph 

i  o.'s:    1'iri    Line  i  w.'s:    i:  ui  road  Co  -, 
Cattle  shipped  by,  from  southern  points. 
Foreign,  section  148c  doe-  not  apply  to,  11 
Freight   of.      (See    FREIGHT.) 
Powers,   etc.,   of   companies   conveying,  freight,   towboats,  etc.,  by   water,   ...  l 

subject  to   laws   governing   individual-.   571 
Steamboat-,  barges,  etc.,  certain  companies  may  buili 
Service  of  summon  upon  river  transportation  companies,   58i 
in  actions  before   justice  of   peace,   623 
may  be  on  — chief  officer   of   river   boats, 
freighl    ■<■:>  nt,    -"  -'■   623 
master  of  boat,  582,  623 
ticket  agent,  582,  623 
Stockholder-  of,  parties  interested  in.  ineligible  to  office  in  railroad  company,  212 
Water  companies  not  included  in.   571 
TREASURER  OF  CORPORATIONS.      (See  under  respective  companies.) 
Appointment   of,    by   directors   or    trustees,    125 
Bond  of  — form  for  regulations  as  to, 

liability  of  sureties  on,   127 
Bv-laws  concerning,  136 
Compensation  of  — directors  or  trustees  acting  as,   i-<- 

form  for  regulations  as  to,  669,  671 
Duties  and  powers  of  — as  to  moneys,    127 

as  to  reports  of  companies   limiting  votes  oi   stockholders,   121 
form  for  regulations  as  to.  668,  671 
Election    etc.,  of,   forms  for  regulations  as  to,  668.  671 
Liabilities  of.  when  treasurer  of  preliminary  and  final  organization,   1_, 


902  INDEX. 

(References   are   to   pages.) 

TREASURER  OF  CORPORATIONS  —  Continued. 

Name  and  address  of,  reports  to  secretary  of  state  to  give  — 
in  case  of  corporations  for  profit,   17 
corporations  not  for  profit,   19 
foreign  corporations,  IS 
Suit  against  may  be  brought,  when,   137 
Summons  may  be  served  on,  when,  582 
in  actions  before  justice  of  peace,  623 
in  case  of  indictment  of  corporations,  639 
TREASURER  OF  STATE.      (See   State  Treasurer.) 

TRESPASS. 

Animals,  permitting,  etc.,  by,  upon  railroad  inclosure,  638 

Corporations  not  liable  for,  108 
TRUST  AGREEMENTS,  ETC. 

Combination   or  joint  arrangements,  what  can  be  formed,   110 

Corporations,  power  of,  to  make,  112 

Voting  agreements,  legality  of,  124 
TRUST  COMPANIES.      (See  Charitable  Trust  Co.'s:  Safe  Deposit  and  Trust  Co.'s.) 

TRUST  FUNDS. 

Corporations  for  receiving,  for  certain  purposes.      (See  Arts  —  Fine:  Industrial  Train- 
ing, Schools  :    Law  Library   Co.'s :    Mechanic's   Institutes: 
Museum  Co.'s:    Widow's  Homes,  Lecture  Associations,  Li- 
brary Companies.) 
Proceeds  of  corporate  bonds  are,  when,  197 
misuse  of,  injunction  to  prevent,   197 
TRUSTEES.      (GENERALLY.) 

Action  by,  for  deception  in  issue  of  bonds  to  cestui  que  trustent,  197 
Disposition  of  property  in  litigation,  in  hands  of,  591 

enforcement  of  order  of  court  as  to,  591 
In  mortgage,  to  serve  bonds.      (See  Mortgages.) 
Transfer  of  stock  to,   143 

Safe  deposit  and  trust  company  as.      (See  Safe  Deposit  and  Trust  Companies.) 
TRUSTEES  OF  CORPORATIONS.     (See  Directors.) 
Board   of  — 

officers  of.      (See  President,  Secretary,  Treasurer.) 
quorum,  majority   constitutes,    125 
By-laws  — 

giving  perpetual  control  to,  cannot  be  made  by,  124 
may  adopt,    136 
Compensation   may   be   allowed,   when,    126 
Be  facto,  persons  failing  to  take  oath  of  office  may  be,  125 
Duties  and  powers  of  — 

as  to  amendment  of  articles;   notice  oi  meeting,  etc.,   102 
corporate  powers,  business  and  property,  128 
Election  of  — 

date  of,  reports  to  secretary  of  state  to  give,  19 
forms  for  regulations  as  to,  671 
held  when,   123 

regulations  may   provide   as   to,   137 
legality  of,  determined  by  quo  warranto,  124 
meetings  for;   notice  of,  etc.,  123 

regulations  may  provide  mode  and  manner,    137 
subscribers  to  articles  elect  first,   113 
Liability  of  — 

enforcement  of,  by  creditors  — 

account  of  corporate  property  and  obligations   in,  when,   159 

application  of  corporate  assets,   159,   160 

complaint  filed,  when,   158 

creditors,  failure  of,  to  present  claims,  159 

notice  to,  to  present  claims,   159 
insolvency  of  corporation  necessary  to,  159 
judgment  for,  when,   159 
nature  of  action  for,   165 

notice  to  non-resident  stockholders,   when,    159 
receiver  of  corporation,  appointment  of,  158 

prosecutions  by.   in  other  jurisdictions,   159 
res  judicata  as  to,  165 

unpaid  stock  subscriptions   collected  first,   159 
nature  of,   165 


INDEX. 

i  R<  1 1 

TRUSTEES   OF   CORPORATIONS      Continued, 
personal,  for  debl  a  conl  racted,   L(J  I 

in  case  dI'  mutual  societies  under  ad  of  I s 7 J .  none,  L66 
w  hat  are  debt  a  of  corporal  ion,    1 6  i 

when   3tock  1-   issued,   lot 

N  allies  mill   a  cl<  1 1  c--c-  nl.   i  epm  I  -   In   -,  ■.  retai  y   of   State   t(     give,    10 
Number  of,    1 13 

forms  for  regulation  establishing,  (>7u 
•  Oath  of  office  of,  125 

effect  of  failure  to  lake.  125 
Qualifications   of,    12S 
Term  of  office  of,   113 

until  successors  elected  and  qualified,   113 
Vacancies  in  board,  filled  by,  when,   128,   L29 

lack  or  cessation  of  qualification  causi  -.  I  !8 

minority  cannot  fill.  1  -'■> 

TURNPIKE  ROAD. 

Mechanic's  Lien  mi.     (See  Mechanic's  Liens.) 

TURNPIKE  AND  PLANK    ROAD  COMPANIES. 

Accounts,  must  keep  what.  339 

what  to  be  shown.  339 
Actions  against,  brought  where,  580 
Appropriation  of  easement,  damages  of.  for.   is:; 

of  use.  etc.,  of.  by  street  railway-  in  certain  counties   (Cuyahoga),  •':<>.! 
Articles   of   incorporation.      (See    "Division,"   etc..   "Incorporation    of   landholdei 
"Incorporation   of  purchasers"   etc.,   below.) 
must  show  what,  328 
supplemental  articles  tiled.  ,",js 
Books  of  — must    show   what.   339,   340 

open  to  inspection  of  agenl   of  general  assembly,  339 
of  county  commissioners,   339 
of  stockbolders,  339,  340 
refusal  as  to,  forfeits  charter,   etc.   :',:',!> 
what  must   he  kept.   339,  340 
Bridges,  etc.,  of  — 

carrying  fire  across  wooden,  334 

enlargement  of,  commissioners  may  order   when.  576 

fast  driving  or  riding  on.  .'5:54 

U.   S.   express   mail   excepted,    334 
repair  of.      (Sec  "  .Road  of,"  below.) 
sale   of.    when    in   municipal    limit-..    335 
Capital   stock.      (See  "Division,"  etc..  "incorporation   of  landhold*  below.) 

shares  of,  books  mu-t    -how    what,  as  to.  340 
stock  books,  mu-t  keep.  33!) 

must  show  what.  339.  340 
subscriptions  to.  hook-,  for.  in  additional,  to  complete,  extend,  etc.. 
transfer  of.  hooks  must    show  what,  a-  to,  -'Mo 
Consolidation  of.  laws  as  to  railroads  apply  to,  :;:'•!» 
Creditors  of,  effect  of  sale,  surrender,  etc.,  of  road  upon, 
Debts,  apportionment  of.  in  case  of  division  of  company,  ■"•!■"• 
Directors  of,  duties  and  powers  of  — 
as  to  obstruction  in  roads,  341 
reports  to  stockholder-.   340 
sale  of  road  to  county  commissioners,   336 
Dividends,    directors  must    declare,   when.   340 
Division  of.  into  several  companies,  342,  343 
articles   upon,    what    constitutes,   343 
filed  with  secretary  of  state,  343 
record  of..   321 
capital   stock,  apportionmeni   of.  upon.   343 
consent  of  stockbolders  necessary,  342,  343 
liability  of  companies  for  debt-  of  original  company,  343 
may  he  made  when.  342 
meeting  of  stockholders  for.  342 
notice  of.  342 
proceedings   of:    record.    343 

certified   copy  of.   filed   as   articles,   343 
vote  necessary,  342.  343 
name  of  new  companies.   .S43 
organization  of  new   companies.   343 


904  INDEX. 

(References   are   to   pages.) 

TURNPIKE  AND  PLANK  ROAD  COMPANIES  —  Continued, 
powers  of,  same  as  other  companies,  343 
stockholders   of   new   company,   343 
Expenditures,  report  of  directors  must  show  what,  as  to,  340 
Incorporation  of  landholders  assessed  for   improved  roads  — 
articles  must  show  what,   341 
branch   road   or   extension  — 

capital  stock  may  be  increased  to  build,   342 
upon  refusal  to  build,  another  company  authorized,  342 
capital   stock  —  amount  fixed,   how,   341 
increase  of,  342 

consent  of  county  commissioners  to,  342 

of  stockholders,   342 
purposes  of.   342 

shares  of,  certificates  issued  when,   to  whom.   342 
subscriptions  to,   books  opened  when,  where,  342 
amount  of:    limitation  upon,   342 
notice  of,  342 
who   may  make,   342 
subscription  to,  not  to  be  received,  342 
petition  for  — 

certificate  of  county  auditor  as  to  signatures  to,   341 
must  accompany  articles,   341 
must  be  signed  by  whom,  341 
powers  of,  same  as  other  companies,   342 
stockholders  of,  who  are  or  may  be,  342 
Incorporation  of  purchasers  at  judicial  sale,  343 

articles,  copy  of  sale,  confirmation,  etc.,  filed  as,  343 

record   of,   343,   344 
name  of  new  company.  343 
Judgment,   against  gatekeeper  is  against  company,  340 

execution  on,  against  both,  340 
Liability  of. —  for   damages   from  failure  to  repair.  333 

report  of  directors  -must  show  what,  as  to,  340 
Officers,  salaries  of,  report  of  directors  to  show,  340 
Powers' of,  328 
President    of,    duties   and   powers    of  — 

as  to  deed  of  road  —  to  county  commissioners,  337 

to  private  purchasers,  336 
as  to  obstructions  in  roads,  341 

surrender  of  road  to  county.  336 
Real  estate,  cannot  hold  in  fee,  when,  328 

Receipts  of,  from  all  sources,  reports  of  directors  to  show,  340 
Returns  of,  for  taxation,   56 
Right  of.  to  use  bridge,  road,  street,  etc. — 
acquired,  how,  329 
in  municipalities,  not  included,  329 
is  exclusive,  307 

macadamized  road  not  included,  329 
petition  for;   notice  of,  329 
Roads  of  — 

abandonment  of,  power  of  court  to  declare,  333 
appropriation  of.  in  municipal  limits,  334 
measure  of  damages,  335 
must  include  all  in   limits,   335 
nature  of  proceedings,  335 
articles  to  designate,  328 

bridges  over   ditch    connecting  with  private  way  — 
right  of  abutting  owner  to  construct.  331 
of  individual  not  an  abutter.  331 
companies  may   improve   and  hold,  what,    32S 
construction,   etc.,   of  — 

materials,  what  permitted,  328,  329 

change   of,   not   to   impair   usefulness,    328 
requirements    when   plank,    328 
regulations  as  to,   329.  330 
division  of.      (See  "Division  of,"  etc.,  above.) 
easements  in  — 

cannot  grant  greater  than  it  possesses,   328 
interest   of   company   in,   329 


INDIA. 

<  Reference!  arc  to  pa       I 

TURNPIKE  AM)  PLANK  ROAD  COMPANIES    -Continued, 
examination  of,  before  license  to  take  toll 
fences  in,  <>r  upon;   penalty,  340,  341 

notice  to  remove,  3  1 1 
grade  of,  330 
joint  ownership  of,  328 
liens  <in.      (  Sec    Mi:<  n  \  \i<  's    I.ii.n.  i 
location,    survey,    etc.,    of,    329 

change  of,  to  avoid  water  coursi      etc.,  329 
approprial  ion  oi   pi  opei  i  \   foi .  329 
milestones  along,  331 
mortgage  upon,   foreclosure  of  — 

appraisers  tor,  appointment,  335 

proceedings  fur.  -nine  as  on  real  estate,  335 

sale  uieler  may  be  in  parcels,  when,  335 
passes  corporate  franchises,  335,    •  G 
obstructions ;    wood,   Btone,   etc.;    penalty,   334,   340,   341 

notice    tO    rellinx  e.    3  I  1 

penalties  and   forfeitures  relating  to  — 
justice  of  peace   lei-  jurisdiction,  '■'•'■'•i 
paid   into  county  treasury,   :i:;i 
recovered  with   costs,   334 

pipes  in, — municipalities  cannol    lay   withoul   c pensation,  328,  331 

right  of  abutting  owners  to  lay,  328,  331 
purchase  of.  by  county  commissioners,  336,  337,  338 
appraisers   for,   appointment,  oath,  duties,  .;.':7 
fees  of,  338 

inspection   of  road;    report,   337 
new  appraisers,  appointed   when, 
deed  for;  execution,  record,  etc.,  of,  337 
effect  of.  upon  creditors,  339 
fees  of  county  auditor  and  treasurer,  338,  339 
payment    for,    338 

bonds  for:   amount,  interest,  time,  etc 
refunding  certain  taxes  and  assessments, 
tax    levy  for,    338 
petition  of  freeholders  for,  331 
question  of,  submitted   to   vote,   337 
repair   of,   after.   338 
time  within  which  to  be  made,  337 
vote  of  stockholders  as   to,   336 
repair  of, — 

duty  of  purchaser  of  tolls  on  execution,  as  to,  344 
outside  of  municipalities,  332,  333 
complainl  of  failure  as  to,  332 

appeal   lies   when:    what    necessary   to,   333 
bond    for:    conditions    for,   333 
proceedings  upon,  333 
costs  paid,  by  whom,  333 
inspectors;  appointment,  fees,  etc.,  of,  333 

report  of;   copies,   record,  etc.,   333 
must  show  what,   333 
notice  as  to,  to  gatekeeper,  333 
county   commissioners    cannol    compel,   by   mandamus.   333 
damages  from   lack   of,  333 
within  municipalities,    332 

abandonment  for  failure  to  make.  when. 
complainl  of  failure  as  to,  332 

costs  under  paid  by  whom,  332 
inspector;   appointment,  oath,  etc.,  332 
notice  of,  musi   Btate  what.   332 
municipality    may    require  by    resolution, 
company  to  declare  intention  as  t<'. 
copy  of  resolution  served  on  gatekeeper,  332 
same  as  public  streets,  when.  334 
right  of  way  for  —  appropriation  of.   320 
purchase  of,   320 

sale  of  — 

except  to  county  commissioners, 
consent  of  stockholders  to,  336 


906  •  INDEX. 

(References   are   to   pages.) 

TURNPIKE  AND  PLANK  ROAD  COMPANIES  —  Continued, 
dissenting  stockholders,  rights  of,  336 
deed  for:  execution,  record  of,  etc.,  336 
effect  of,  upon  creditors,  339 
in   one  county,   effect  on   remainder,   339 

to  county  commissioners.      (See  "Purchase  of,"  etc.,   above.) 
to  municipalities,  when  within  limits,  335 
upon  execution,  343 

appraisement  of,  343 
copy  of,  etc.,  filed  as  articles,  343 
franchises,  corporate,   included,   343 
supervisor  of  highways  has  no  control  over.  333 
surrender  of,  to  county  in  which  located,  336 
consent   of   county   commissioners,   336 

of  stockholders,  336 
effect  of.  upon  creditors.  339 
evidenced  how,  336 
must  be   without   consideration,   336 
tolls  not  to  be  collected  on,  336 
termini  of,  articles  to  name,   328 
toll  gathers  upon,   penalties  against  — 

for   demanding   toll  —  greater   than   allowed   by   law,   333,   334 
over  portion,  in  municipality  abandoned  for  repairs,  332 
over  road   outside  municipality   found  out   of  repair,   332 
for  detaining   travelers  unreasonablv,   333,   334 
width   of,    329 

within    municipalities,   become   public   streets,    334 
compensation  to  company  for,  334 

recovered  how.   33,4,  335 
repair  of.      (See  "Repair  of,"  above.) 
Secretary   of, —  duties   and   powers   of  — 

as  to  deed  of  road  to  county  commissioners.  337 

to  private  purchasers.  336 
as  to  surrender  of  road  to  county,  336 
Stock  books.      (See  "Capital  stock,"  above.) 
Stockholders  of  — 

assessment  of,  may  make  when,  341 

basis  of,   stockholders   determine,   341 
collected  by  action,  when,  341 
limitation  upon,   341 

meeting  for ;    notice  of,  proceedings  at.  341 
payment   of  —  credited  upon   stockholders'  liability,   341 
time,  mode,  etc.,  stockholders  determine,  341 
cannot  act  as  county  commissioner  or  probate  judge  in  authorizing  to  take  toll,  330 
liability  of.  under  act  of  May  3.  1852.  158 
meetings   of, —  regular,  held  when;    notice   of,   340 
to  authorize  sale  to  county  commissioners.  336 
called  by  whom ;   notice,  vote.  336,  337 
names  of.  and  shares  held,  books  must  show,   339,  340 
reports, — -of  directors  to;    made  when,   shows  what.   340 
of  gatekeepers,   submitted  to,   340 
Subscriptions   by,   to   aid   in   building   or   repairing  — 
free  turnpike  which   intersects  road,   339 

limits   upon:    consent    of   stockholders   to.    339 
road  which  is  a  continuation  or  extension.  330 
limits   upon:    consent   of   stockholders   to,    339 
Superintendent  of,  duties,  etc.,  'as  to  obstructions,  341 

Toll  — 

amount  received  at  each  gate  — 
gatekeepers  must  report,   340 
report  of  directors  must  show,   340 
collection,  etc.,  of  — 

demand  not  necessary.  330 
evading,  etc.:   penalty.   330 
greater  than  allowed  by  law,   333,   334 
none,  over  road  surrendered  to  county.   336 
over  road  within  municipality.  334.  335 
over  part  of  road  —  abandoned  for  failure  to  repair.  332 
outside  of  municipality  found  out  of  repair,  333 
exemption  from,   331 


INDEX. 

(R(  1 1 

TURNPIKE  AND  PLANK   ROAD  COMPANIES      Continued, 
to  grantor  of  right  of  was,  does  not  run  with  land 
rates  of,  331,  332 

musl  lie  posted  near  toll  gates,  331 
d\  er  mine  or  qua  i  rj  road  -   33] 
righl  <>r   license  to  take-  -acquired,  how,  330 
is  a  franchise,  330 
is   property,   335 

may  be  sold  on  execution,  when,  344 
IT!  i  iflcate  of  sale  ami   it  -  effect  -..  '■'<  1 1 
rights   ami   duties   oi    purchaser,   :;it 
sold  as  persona  I   property  .   '■'>  1 1 

to   whom.   344 
Toll  gates  — 

erection  or  maintenance    in   or   near   municipalitiea   forbidden 

injunction  to  prevent,  by  individuals,  againsl  company, 
mandamus   to   prevent,  againsl    city, 

removal   of,    when    municipal    limit-   extended,    '■'.'■'■\ 
compensation  must  he  firs!  made,  335 
damages    for,    334 
Toll  gatekeeper  — 

agent   of  company,  how   far.   34(1 
judgment  against,   is  against    company,   340 
salaries,  etc.,  of,  report  of  director-  musl    -how.  340 
report  of,  340 

must    he  submitted  to  stockholder-.  340 
must  show  what,  340 
under  oath.   340 
Toll  house,   may  erect,   when,   where.  329 
Treasurer  of  —  bond  of;  oath.  340 
can   hold    no   other    office,    340 
ULTRA    VIRES.       (See    CORPOBATE    POWEBS.) 
Acquiescence  of  stockholders,  effect  of,  133 
Acts  which  are, — 

do    not   dissolve    corporation.    10fi 

corporation  may  set  aside,  although  ratithd  by  stockholders,   107 
Contracts   which   are  — 

effect  and  enforcement  of,  106 
guaranty  of.  valid  when,   106 
liability  of  directors  on,    132 
partly  illegal,   enforcement    of.    Kit; 
Defense  of,  to  escape  payment   of  borrowed   money,   L50 
Surrender  of  stock  to  company  i-.  when.   110 

Trustees  of  mutual  insurance  company,  not   liable  on  policy  on  ground  of,   !"•> 
Unauthorized  purpose  or  mode,  effecl  of  on  legal  act,  loT 
What  to  be  considered  in  determining,   105 
Who  may  raise  question  of,   106,    II" 
UNCLAIMED  FREIGHT,   ETC.     (See   Freight.) 
UNDERGROUND  CONDUITS.     (See  Subways.) 
UNION  DEPOT  COMPANIES. 

Agents,  employees,  etc.,  of.      (See  "Officers,     below.) 
appointment    of.    313,    -"'1  1 
authority  of,  to  make  arrests.  314 
discharge  of,   313 

duties  and  obligations  of,  laws  as  to  railroad-  apply  to,  314 
Appropriation  of  property  for.     (See  Appbopbiations 
Articles  of   incorporation   of,   313 

certified  opv.  evidence  of  corporate  existence,   313 

execution  of '—  corporate  seals  of  constituenl   companies  attached,  3U 

presidenl    of   constituenl    companies   sign,   313 
filing  of.    313 
must    show   what.   313 
who   may   file,   313 
Bonds,   note-,   etc.— amount   of.   limitations    upon.    ..14 
companies  may  issue:    interest   on,  314 
sale  of.  directors  control,   314 
securer!  by  mortgage,  etc.,   314 
stockholders  may  sruarantee,  314 
By-laws,   rules,   etc..   director's  pass.    314 
Capital  stock  — amount  of.  articles  to  give.  393 


DOS  INDEX. 

(References   are   to   pages.) 

UNION  DEPOT  COMPANIES  —  Continued. 

constituent  companies  own  in  equal  shares,  313 
Definition  of:    includes   whata   77 
Directors  of,   duties  and  powers  of,   313,   314 
vote  necessary  for  action  by,  313 
who  are,  313 
Excise   tax   on,   amour ;,   levying,   collection,   etc.,   of,   80 
failure  to  pay,  80 

exempted  from  provisions  of  "  Willis  Law,"  20 
tangible  property  not  exempt  from  taxation,  80 
Hackmen,   etc.,   at   depot  — 

company   may  —  adopt   rules  to   control,   314 

grant  exclusive  rights  to  transfer  company,  314 
ordinance  prohibiting  soliciting,   etc.,  by.  valid,   314 
Liabilities,  constituent  companies  jointly  liabk  for,  in  equal  shares.  314 
Name,  articles  must  give,  313 

Names  of  constituent  companies,  articles  must  give,  313 
Objects  or  purposes  of,  313 
Officers  of  — 

authority  to  make  arrests,  314 

directors  appoint,  etc..   314 

examination  of,  by  state  board  of  appraisers  and  assessors,  79 

refusal  to  testify,  etc. ;    penalty.   80 
duties  and  obligations  of,  laws  as  to  railroads  apply  to.   314 
reports  made  filed,  etc.,  by,  when,  77 
Powers  of,   313 

to  locate  and  take  releases  of  right  of  way  and  depot  grounds,  313 
Property  of,  protection  of,  laws  as  to  railroads  apply  to,  314 
Records  of  proceedings,  etc. —  directors  must   keep.   314 

stockholders,  etc.,  may   inspect,  314 
Reports   to   state   auditor  — 

blanks  for,  auditor  prepares  and  furnishes,  78 
duties  and  powers  of  officers  as  to,  77 
failure   or   refusal   to   make..    79 
must  show  what  as  to  — 

character  and  nature  of  company,  77 
gross  receipts.  78 
name  of  company.   77 
officers,   etc.,   name   and   address,   77 
organization,   laws   and   state   of,   77 
principal  office,  location  of,   77 
Rules  and   regulations  —  directors  adopt,   314 
posting  of.   314 

violation  of,  arrest  for,  etc.,  314 
Section  3281  applies  to,  313 
UNIVERSITIES.      (See  Schools,  Colleges,  etc.) 

USURY. 

In  sale  of  bonds  below  par,  201 

VALUATIONS    OF   LIFE    INSURANCE    POLICIES.      (See    Insurance    Co/s  — Life.) 
VEHICLE. 

Law  of  road  as  to:  turn  to  right,  334 

Rates  of  toll  for,  over  bridges.  346 

over   turnpikes   or   plank   roads,    331 

VERIFICATION.      ( See  Affidavits :  Oaths:  Pleadings.) 
VENUE,  CHANGE  OF. 

Allowed  when,  in  suit  by  or  against  corporations,  581 
affidavit  for:   credibility,  etc.,  581 
provisions  as  to,  mandatory,  581 
Foreign  life   insurance  companies  seeking,  license  to   do  business  revoked.   375 

VESSELS. 

Shooting  or  throwing  at.  636 

VIADUCTS.      (See  Bridges:  Railroad  Crossings.) 
VICE  PRESIDENT.      (§ee  under  respective  companies.) 

Duties  and  powers  of  —  forms  for  regulations  as  to,  668,  671 

Election  of,  forms  for  regulation  as  to,  668.  671 

Power  of,  to  sign  notes.   127 
VOLUNTARY  APPEARANCE.      (See  Appearance.) 


INDEX.  901 

(References  arc  t'>  pa 
VOTE.     (See   Board   of    Appraisers   OJ     Railroads:    Capita!    9TOOK:    DlBBCTOBS:    Stooi 

HOLDERS:    SUBMISSION    TO    VOTERS.) 

Agreements,  sale,  etc.,  uf,  etc.,  124 
VOTING  AGREEMENTS.     (See  Trust  Agreements.) 
WAGON. 

Rates  of  toll   for  —  over  bridges,  346 
over   turnpikes   or   plank    roads.   331 
WAGES,  INSURANCE.     (See   Insurance  Co.'s  — Credh   Guaranty.) 
WAITING  ROOMS.     (See  Depots:    Railroads.) 

WAIVER. 

Of  conditions  of  stock  subscriptions,  117 

Of  notice  as  to  or  of  — 

amendment  of  articles,   102 

forms  for,  (ilil 
meeting  to  amend  articles,   102 

forms   for,   000 
meeting  to  increase  capital  stock,  number  of  shares,  etc.,    165 
meeting  to  organize   company,    1  IS 

form  for.  665 
opening  books  of  subscription  to  capital  stock.  115 
Of  right  to  call  for  payment  on  stock,  118 

to  have  statutory  amount  of  capital  stock  subscribed,   118 
to  remove  causes,  by  foreign  corporation.  15 
Of  stockholders'  liability,   154 

WAREHOUSE. 

Company  to  construct,  etc.      (See  Building   Companies.) 

WAREHOUSEMEN. 

Lien  of.  for  freight,  storage,  etc.,  charges,  87 
action  to  enforce,  87 

Notice  by.  of  receipt   of  freight,  at  destination.   Sti 

Penalty  for  non-compliance  with  sections  3221  to  3231.  88 

Unclaimed  freight,  duty,  etc.,  as  to.      (See  Freight.) 
WAREHOUSE    RECEIPTS.      (See    Railroads.) 
WATCHMEN.      (See  Railroads.) 

WATER  PIPES. 

Appropriation  of  way   for.  by  pipe  line  companies.   571 
by  railroad  companies,  183 
WATER  TANKS.      (See  Railroads.) 
WATER  TRANSPORTATION  COMPANIES.      (See  Pipe  Line  Companies.) 

WATER  WORKS  COMPANIES. 

Agents,   employees,   etc.      (See  "  Officers,''  below.) 
Appropriation  of  property  — 

sections  3551  to  3553  do  not  authorize,  350 
section  3878  does  not  authorize.  538 
Books,  papers,  etc..  of,  examination,  etc  of.  by  state  board  of  appraisers  and  assessors,  8U 
Definition  of:  includes  what.  77 

Excise  tax  on:    amount,  levying  of,   collection  of,  etc.,   78,  80 
exempted  from  provisions  of  "  Willis  Law.'"  20 
failure  to  pay.   80 

tangible  property  not  exempt  from  taxation,  80 
Exclusive  right  of.  in  municipalities  — 

second   company   musi    be  authorized  by   ordinance,    350 

by  vote  of  electors.  350.  35 
to  use  and  occupy  streets,  etc.,  not  authorized.  34!>.  350 
Officers  of  — 

examination   of.   by   state   board   of   appraisers   an. I   assessors,    . ;» 

refusal  io  testify,  etc.:   penalties,  80 
reports  made,   tiled,  etc..  by.  when,  77 
Powers  of.,   to  sell  and  furnish  water.   340 
Reports    of   to    state    auditor  — 

blanks  for,  auditor  prepares  and   furnishes,  78 
duties  and  powers  of  officers  a-  to.  77 
failure  or  refusal  to  make,  70 
must   show  what  as  to  — 

character  and  nature  of  company,  77 
gross  receipts.  78 
name  of   company.    77 


910  INDEX. 

(References  are  to  pages.) 

WATER   WORKS  COMPANIES  — Continued. 

officers,   etc.,   name  and   address,   77 
organization,  laws  and  state  of,  77 
principal   office,   location   of,   77 
Service  of, —  municipal  contracts  for,  350 

need  not  be  submitted  vote  of  electors,  when,  351 
Streets,  alleys,  etc.,  use,  etc..  of,  for  pipes  — 

authorized  in  municipalities  and  townships,  349 
consent  necessary,  of  municipal  authorities,   349 

of   township   trustees.    349 
exclusive  right  not  authorized.  349 
regulation  of,  municipal  authorities  prescribe,  349 
township  trustees  prescribe,  349 

WHARF. 

Appropriation  of  property  for,  by  railroads,  185 
WHARF  BOAT  COMPANIES.    (See  Navigation  Improvement  Co.'s:  Transportation  Co.;s.) 

Statute  permitting  steamboat  and  watercraft  companies  authorizes,  94 
WHARFINGERS.     (See  Warehousemen.) 
WIDOW'S  HOME  COMPANIES. 

Acceptance  of  provisions  as  to,  483 

certificate  as  to, —  acknowledged  by  trustees,  483 
filed  with   secretary  of  state,  483 
Agents,  officers,  etc.,  of  —  directors  or  trustees  cannot  be,  483 

duties  of,  enforcement  of:  removal.  484 
Articles  may  prescribe  what,  483 
Directors  or  trustees  of  — 

appointment,  etc.,  of,  articles  prescribe  mode  of,  483 

compensation  of,  none,  483 

enforcement  of  duties  of:    removal,  484 

ineligible  to  salaried  office,  etc.,  483 

may  be  of  either  sex.  483 

tenure  of  office,  articles  prescribe,  483 
Funds,   etc.,   of  — 

accounts,  reports,  etc.,  of,  filed  with  clerk  of  common  pleas  court,  453 
enforcement  of,  483 

organic  rules  as  to,  483 
Objects  or   purposes,   additions   to,   483 

certificate  of,  acknowledged,  and   filed  with   secretary  of  state,  483 
Officers.      (See  "Agents"  above.) 
Organic  rules  —  articles  prescribe,  483 

permanency   of,   483 
Property  of  - — ■ 

administration  and  management  of.  articles  prescribe  mode  of,  483 

power  to  hold,  acquire,  etc.,  483,  573 
limitations  as  to  use,  573 

WILLIS  ACT. 

Provisions  of,  17-21 
WIRES.     (See  Railroads:  Telegraph  and  Telephone  Companies.) 
WITNESSES. 

Commissioner  of  railroads  may  subpoena,  29 

To  deeds,  conveyances,  etc.      (See  Real  Estate.) 

WOMEN. 

Unmarried,  home  for.      (See  Widow's  Home  Companies.) 
WOMEN'S  CHRISTIAN  ASSOCIATION. 

Powers  of  certain,  as  to  procuring  homes  for  children,  499 
WORDS  AND  PHRASES.     (See  Definitions). 
WORKHOUSE. 

Deceased  inmates  of,  duty  of  superintendent  as  to  bodies  of,  481,  482 
WORKSHOPS.      (See  Machine  Shops.) 
WRECKING  COMPANIES. 

Objects  and  purposes  of,  572 

Powers  of,  572 

Subject  to  laws  governing  individuals,  573 


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